Filed 7/26/21 P. v. Gutierrez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B311753
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA023215)
v.
ANDRES GUTIERREZ,
Defendant and Appellant.
THE COURT:
Andres Gutierrez was convicted in 1997 of murder and
assault with a firearm. (Pen. Code, §§ 187, subd. (a), 245, subd.
(a)(2), 12022.5, subd. (a).) He was sentenced to 25 years to life for
murder, plus eight years for the assault and firearm use. This
court affirmed the judgment on direct appeal in People v.
Gutierrez (Oct. 13, 1998, B112355) [nonpub. opn.].
In February 2021, Gutierrez sought to vacate fines and fees
imposed at his sentencing hearing, arguing that the court failed
to determine his ability to pay. He asserted that he can be
resentenced because his case “is not yet final on direct appeal.”
The court denied his motion. He appealed.
Appointed counsel filed an appellate brief raising no issues.
(People v. Serrano (2012) 211 Cal.App.4th 496, 503.) We gave
Gutierrez notice of his right to file a supplemental brief. Though
he did not respond to our notice, his notice of appeal contains a
four-page argument pressing his claim that the court violated his
rights by imposing fees and fines.
The trial court had no power to grant Gutierrez’s motion. A
court may recall a sentence, on its own motion, within 120 days
after committing the defendant to prison. (Pen. Code, § 1170,
subd. (d)(1); Dix v. Superior Court (1991) 53 Cal.3d 442, 455.)
The court loses jurisdiction to recall and resentence once 120
days have passed since commitment. (Dix, at p. 464.)
Gutierrez was committed to prison on May 13, 1997. The
court lacked jurisdiction in 2021 to recall its sentence, hold a new
hearing, or modify the terms of its judgment. We must dismiss
the appeal. (People v. Magana (2021) 63 Cal.App.5th 1120, 1127–
1128; People v. Jinkins (2020) 58 Cal.App.5th 707, 712–713;
People v. Chlad (1992) 6 Cal.App.4th 1719, 1725–1726; People v.
Fuimaono (2019) 32 Cal.App.5th 132, 133–135.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
____________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.