Filed 2/27/19
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,                                                      C086712

                  Plaintiff and Respondent,              (Super. Ct. No. 14F07222)

        v.

JARRETT EDWARD CHAMIZO,

                  Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of Sacramento County, Jaime R.
Roman, Judge. Dismissed.

      Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, George
M. Hendrickson, Deputy Attorney General, for Plaintiff and Respondent.




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                                       THE APPEAL
       In 2015, defendant, Jarrett Edward Chamizo, pleaded no contest to transporting
cocaine and admitted a prior conviction for transporting methamphetamine and a prior
conviction for possessing cocaine for sale. Defendant was thereafter sentenced on the
charge of transporting cocaine and, pursuant to section 11370.2 of the Health and Safety
Code (statutory section references that follow are to the Health and Safety Code unless
otherwise set forth), he was ordered to serve two additional and consecutive three-year
terms based upon the prior convictions.
       Defendant did not appeal the judgment and it became final in 2015.
       In 2017, the Legislature amended section 11370.2 to narrow the crimes to which
the three-year enhancement applies effective January 1, 2018. Under the new statute the
sentence enhancement provided for by section 11370.2 would not apply to defendant
based on his conviction for transporting cocaine.
       In December 2017, defendant filed a motion in the trial court to reduce his
sentence by striking the two three-year enhancements. Finding that the legislation
amending section 11370.2 did not have retroactive application to those defendants whose
judgments were final before the effective date of the amended statute, the trial court
denied his motion. Defendant appeals.
       We hold that, since the defendant’s 2015 judgment was final at the time he filed
his motion for resentencing, the trial court did not have jurisdiction to entertain the
motion. We dismiss the appeal because it comes to us from a nonappealable order.

                               FACTS AND PROCEEDINGS
       On March 12, 2015, defendant Jarrett Edward Chamizo pleaded no contest to
transporting cocaine (§ 11352, subd. (a)) and admitted two section 11370.2, subdivision
(a) enhancements based upon his prior convictions for transporting methamphetamine
(§ 11379) and possessing cocaine for sale (§ 11352). The same day, the trial court


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sentenced him to the midterm of four years plus two consecutive three-year terms for the
section 11370.2 enhancements for a total aggregate state prison term of 10 years. As
earlier noted, defendant did not appeal from this judgment.
       As noted in the summary of the appeal set forth above, defendant now appeals the
trial court’s denial of his post-judgment motion for resentencing which motion relies on
the amendment of section 11370.2 enacted by Senate Bill No. 180 (2017-2018 Reg.
Sess.) (Senate Bill 180). The bill went into effect January 1, 2018, and narrowed the
scope of the enhancement found in section 11370.2. (§ 11370.2, as amended by Stats.
2017, ch. 677, § 1.) In part, the bill removed transporting cocaine in violation of section
11352 and possessing cocaine for sale, among other offenses, as offenses requiring
imposition of the enhancement mandated by section 11370.2.
       On December 18, 2017, defendant filed a motion for resentencing, arguing Senate
Bill 180 should be applied retroactively to eliminate his two section 11370.2
enhancements, reducing his sentence to four years. The People opposed the motion on
the ground that the trial court lacked jurisdiction to entertain defendant’s post final
judgment motion to modify his sentence. Even so, the trial court denied defendant’s
motion on the merits, finding Senate Bill 180 did not apply retroactively because there
was no explicit expression of retroactivity that would defeat the application of Penal
Code section 3. Defendant timely appealed.

                                        DISCUSSION
       Defendant argues Senate Bill 180 must be applied retroactively to his final
judgment to eliminate his punishment for two enhancements that no longer exist under
the amended law. He further argues this result is not altered by his plea agreement. The
People counter that the trial court did not have jurisdiction to amend defendant’s
sentence, and defendant has appealed from a nonappealable order. In what appears to be
a concession of the validity of the People’s argument, defendant requests in reply that we


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deem his lower court motion to modify his sentence to have been a writ of habeas corpus.
We agree that defendant has appealed from a nonappealable order and decline
defendant’s request to treat the motion as a petition for a writ of habeas corpus.
         “A defendant may appeal from a final judgment of conviction or from any order
after judgment which affects his or her substantial rights. ([Pen. Code,] § 1237.)
‘Judgment is synonymous with the imposition of sentence [citation]. . . .’ (People v.
Perez (1979) 23 Cal.3d 545, 549, fn. 2.)” (People v. Chlad (1992) 6 Cal.App.4th 1719,
1725.)
         Under the common law, a trial court generally lacks “jurisdiction to resentence a
criminal defendant once execution of sentence has commenced.” (People v. Karaman
(1992) 4 Cal.4th 335, 344.) Thus, once judgment is rendered, except for limited statutory
exceptions which do not apply here (Pen. Code, §§ 1170.126, 1170.18), the sentencing
court is without jurisdiction to vacate or modify the sentence except pursuant to the
provisions of Penal Code section 1170, subdivision (d). (See Portillo v. Superior Court
(1992) 10 Cal.App.4th 1829, 1834-1836.)
         Penal Code section 1170, subdivision (d) allows a sentencing court on its own
motion to recall and resentence, subject to the express limitation that the court must act to
recall the sentence within 120 days after committing the defendant to prison. (See Dix v.
Superior Court (1991) 53 Cal.3d 442, 456.) “Cases under . . . [Penal Code] section
1170(d) . . . have held that the court loses ‘own-motion’ jurisdiction if it fails to recall a
sentence within 120 days of the original commitment. [Citations.]” (Id. at p. 464,
emphasis omitted.)
         Here, defendant was sentenced on March 12, 2015, but did not move to modify his
sentence until December 18, 2017. Thus, the 120-day limitation under Penal Code
section 1170, subdivision (d) had long since passed at the time he filed his motion. Thus
the trial court was without jurisdiction to consider that motion. (See People v. Chlad,
supra, 6 Cal.App.4th at pp. 1724-1725.) We note that, because the court was without

                                               4
jurisdiction to consider the motion, its denial did not impact defendant’s substantial
rights. (Id. at p. 1726 [because the court was without jurisdiction to consider defendant’s
untimely motion to modify his sentence, denial of the motion could not have adversely
impacted defendant’s substantial rights]; see also People v. Dynes (2018) 20 Cal.App.5th
523, 528 [denial of motion to modify sentence brought outside of regulations to be
adopted pursuant to Proposition 57 was not appealable].)
       While we recognize that the legislature may expressly avail defendants whose
judgments are final of the benefits of newly enacted laws (see, e.g., Teal v. Superior
Court (2014) 60 Cal.4th 595, 600 [Penal Code “[s]ection 1170.126 creates a substantial
right to be resentenced and provides a remedy by way of postjudgment motion”]), here,
nothing in Senate Bill 180 suggests it was intended to apply to judgments that had
become final before the filing of the motion. (See People v. Grzymski (2018)
28 Cal.App.5th 799, 802 [defendant not entitled to relief under Senate Bill 180 where he
failed to appeal split sentences, which were final for purposes of retroactivity 60 days
after imposition].) Had the legislature intended that Senate Bill 180 should be applied to
those whose criminal convictions had become final, it could easily have said so.
       Thus, the trial court’s order was not appealable (People v. Chlad, supra,
6 Cal.App.4th at p. 1726; People v. Dynes, supra, 20 Cal.App.5th at p. 528), and we
decline defendant’s invitation on reply to deem his motion a petition for a writ of habeas
corpus in order to cure the jurisdictional deficiency.
              Having concluded defendant has appealed from a nonappealable order, we
need not address defendant’s remaining arguments.




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                                   DISPOSITION
     Defendant’s appeal is dismissed.



                                                 HULL   , Acting P. J.



We concur:



     ROBIE               , J.



     MURRAY              , J.




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