Filed 7/12/16 P. v. Farrington CA3
                                                 NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for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
                                           THIRD APPELLATE DISTRICT
                                                                (Shasta)
                                                                    ----




THE PEOPLE,

                     Plaintiff and Respondent,                                                            C078265

          v.                                                                                 (Super. Ct. No. 14F3172)

JAMES DOUGLAS FARRINGTON,

                     Defendant and Appellant.

          Defendant James Douglas Farrington filed a notice of appeal from the trial court’s
denial of his request to recall his sentence. Defendant contends (1) the appeal is properly
before this court and (2) the trial court erred in denying his request to recall his sentence.
We conclude the appeal is properly before us as an appeal from an order after judgment
affecting defendant’s substantial rights. On the merits, we conclude the trial court was
correct in denying defendant’s request to recall his sentence. Defendant did not seek to
recall his original sentence for purposes of resentencing, but sought to recall his sentence
to file a motion to withdraw his plea. Accordingly, we affirm the judgment.




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                                    Summary of Facts
       On May 26, 2014, officers responded to a disturbance caused by defendant James
Douglas Farrington who reportedly was armed with a shotgun. The victim (Tammie
Genetiano) reported defendant had kicked in the front security door of her home and
threatened to kill everyone in the house. Defendant refused to leave. The victim’s
husband pushed defendant out of the house and disarmed him of a knife. The victim
reported she feared for her life and those of her family members.
       An information charged defendant with first degree burglary (Pen. Code, § 459;1
count 1), criminal threats to Tammie Genetiano (§ 422; count 2), and two counts of
trespass by threat (§ 601, subd. (a); counts 3 and 4). It was further alleged defendant had
three strike priors (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).
       On July 25, 2014, defendant entered a negotiated plea of no contest to criminal
threats (count 2), admitted a prior strike (2000 second degree robbery), waived referral to
the probation department for a report, and agreed to immediate sentencing, in exchange
for dismissal of the remaining counts and allegations and a stipulated sentence of six
years (the upper term of three years for the offense, doubled for the prior strike). The
prosecutor stated the People would dismiss the additional enhancements because of
“problems of proof on two of the charges that arose after further investigation with the
victims in this case,” provided defendant entered his plea and was sentenced that day. In
entering his plea, defendant agreed to “waive and give up [his] right to appeal the denial
of any and all motions made in this case” and to “waive and give up [his] right to appeal
from the stipulated sentence [he] will receive in this case.” The trial court granted the




1      Undesignated statutory references are to the Penal Code.

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People’s motion to dismiss the remaining counts and allegations and immediately
sentenced defendant in accordance with the plea.2
       On August 5, 2014, defense counsel requested a copy of the plea and sentencing
transcript, stating defendant had contacted defense counsel and indicated a desire to
withdraw his plea. Defense counsel needed the plea/sentencing transcript “to determine
whether there [was] any way to go forward,” and to review with defendant to “see
whether there [were] grounds for going forward.” The trial court noted defendant had
already been sentenced and was unsure if defendant could withdraw his plea but
nevertheless set a hearing for August 26, 2014.
       On August 26, 2014, the parties agreed to continue any hearing on a motion to
withdraw the plea to September 22, 2014.
       On September 2, 2014, a hearing to dismiss appointed counsel was held pursuant
to People v. Marsden (1970) 2 Cal.3d 118. The trial court denied defendant’s Marsden
motion. On September 22, 2014, defense counsel indicated he planned to investigate
whether there were grounds for withdrawing defendant’s plea. The trial court noted
defendant had already been sentenced and had filed a writ that had been summarily
denied. The court also noted there were no pending noticed motions and dropped the
matter from the calendar.
       On October 5, 2014, defendant, acting in propria persona, requested that the trial
court recall the sentence for defendant to file a motion to withdraw his plea, citing section
1170, subdivision (d). He wanted to proceed to trial, attaching what defendant claimed to
be a letter from the victim (defendant’s sister) addressed, “To whom it may concern.”



2      The parties claim the abstract of judgment reflects defendant was sentenced to
serve an upper term of six years rather than three years, doubled for the strike prior. The
abstract requires no correction in that it correctly reflects the court imposed the upper
term doubled for the strike prior (a box was checked for this purpose) or six years.

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She explained the circumstances underlying the offense and stated she had lied about
defendant having a gun so that the police would hurry to the scene. Defendant claimed it
was newly discovered evidence that undermined the prosecution’s case and he was not
guilty of criminal threats.
       On November 4, 2014, the trial court denied defendant’s request to recall the
sentence, noting defendant’s sentence was stipulated pursuant to a negotiated plea
agreement.
       Defendant, acting in propria persona, sent a notice of appeal to this court that was
forwarded to the superior court. Defendant indicated he was appealing from the sentence
or other matters after the plea that did not affect its validity. We deemed the notice to
have been timely filed.
                                       DISCUSSION
       On appeal, defendant contends the trial court erred in denying his request to recall
the sentence for the purpose of allowing him to present a motion to withdraw his plea.
Defendant asserts his notice of appeal includes the denial of his request to recall the
sentence. On the merits, defendant contends section 1170, subdivision (d), may be used
as a vehicle to move to withdraw a plea when a plea and sentencing occurs during a
single proceeding. He argues recalling the sentence is consistent with section 1018 that
authorizes a motion to withdraw a plea.
       The People agree defendant’s appeal from the denial of his request to recall his
sentence is properly before this court because the appeal is governed by section 1237,
subdivision (b), as an appeal from an order made after judgment affecting defendant’s
substantial rights. On the merits, the People respond the trial court did not err in denying
defendant’s “so called request for resentencing [that] was in reality a request to vacate the
judgment and to withdraw his plea.” The People argue defendant’s request was untimely,




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his appeal should be dismissed, and his remedy “lies in collateral review by way of a writ
of error coram nobis.”
                                              I
                                      Notice of Appeal
       Section 1237, subdivision (b), allows an appeal “[f]rom any order made after
judgment affecting the substantial rights of a party.” As an order after judgment affecting
defendant’s substantial rights, the denial of defendant’s request to recall his sentence is
appealable pursuant to section 1237, subdivision (b). (People v. Loper (2015) 60 Cal.4th
1155, 1165-1168.) Further, as an appeal from an order after judgment, no certification of
probable cause was required. (People v. Arriaga (2014) 58 Cal.4th 950, 960.)
                                              II
                                Request to Recall Sentence
       We conclude the trial court properly denied defendant’s request to recall his
sentence. Section 1170, subdivision (d), was not designed to allow recall for the purpose
of withdrawing a plea.
       “Section 1170(d) is an exception to the common law rule that the court loses
resentencing jurisdiction once execution of sentence has begun.” (Dix v. Superior Court
(1991) 53 Cal.3d 442, 455.)3 “[T]he trial court has jurisdiction for a period of 120 days


3      Section 1170, subdivision (d), provides:
       “When a defendant subject to this section or subdivision (b) of Section 1168 has
been sentenced to be imprisoned in the state prison and has been committed to the
custody of the secretary, the court may, within 120 days of the date of commitment on its
own motion, or at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously ordered and resentence
the defendant in the same manner as if he or she had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial sentence. The court
resentencing under this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.
Credit shall be given for time served.”

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to recall a defendant’s sentence for reasons rationally related to lawful sentencing and to
resentence a defendant as if he or she had not been sentenced previously. [Citations.]”
(People v. Scarbrough (2015) 240 Cal.App.4th 916, 923-924.) Here, defendant was not
seeking to be resentenced on the offense to which he entered a negotiated plea agreement.
Instead, defendant sought to recall his sentence to file a motion to withdraw his plea.
       The statutory procedure for recalling a sentence under section 1170 “does not
provide the trial court with any additional sentencing authority and certainly does not
allow the court to alter the terms of a plea agreement agreed to by the parties and the trial
court.” (People v. Blount (2009) 175 Cal.App.4th 992, 998.) Defendant’s sentence of the
upper term of three years, doubled for the prior strike, was in accordance with the
negotiated plea agreement that provided for the stipulated sentence. Section 1170 does
not provide a remedy for defendant’s stipulated sentence pursuant to a negotiated plea
agreement.
       Defendant relies upon Dix, supra, 53 Cal.3d 442 to support his position that the
trial court had authority to recall the sentence under section 1170 for the limited purpose
of allowing defendant to file a motion to withdraw his plea. Defendant’s reliance is
misplaced. In Dix, the defendant entered a guilty plea to assault with a firearm and
admitted personally inflicting great bodily injury. The trial court imposed an aggregate
state prison sentence of seven years. The trial court recalled the defendant’s prison
sentence within 120 days based on the defendant’s postcommitment offer to testify in
another case. Dix held that “section 1170(d) permits the sentencing court to recall a
sentence for any reason which could influence sentencing generally, even if the reason
arose after the original commitment. The court may thereafter consider such reason in
deciding upon a new sentence [and] . . . impose any new sentence that would be
permissible under the Determinate Sentencing Act if the resentence were the original
sentence.” (Dix at p. 463, fn. omitted, italics added.) Dix determined the defendant’s



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cooperation could be taken into account when the trial court imposed any new sentence.
(Ibid.)
          Dix, supra, 53 Cal.3d 442 involves the recall of an original sentence and
imposition of a new sentence. Here, defendant does not seek resentencing. Instead,
defendant seeks to recall the stipulated sentence to file a motion to withdraw his plea.
Section 1170, subdivision (d), was not “designed to give a defendant an opportunity to
withdraw a guilty plea.” (People v. Alanis (2008) 158 Cal.App.4th 1467, 1476.)
          Defendant argues recalling the sentence would be consistent with section 1018’s
requirement that a motion to withdraw the plea be presented before judgment. Section
1018 provides in pertinent part: “On application of the defendant at any time before
judgment or within six months after an order granting probation is made if entry of
judgment is suspended, the court may, and in case of a defendant who appeared without
counsel at the time of the plea the court shall, for a good cause shown, permit the plea of
guilty to be withdrawn and a plea of not guilty substituted.” Because defendant was
sentenced on the same day as the plea, he was foreclosed from presenting a motion to
withdraw his plea. Defendant asserts that allowing his sentence to be recalled under
section 1170 would “cure this timing problem.” This argument has no merit. Section
1170, subdivision (d), is limited to sentencing and does not provide a procedure by which
a defendant may withdraw a negotiated plea and proceed to trial. By its express terms,
section 1170, subdivision (d), does not apply to defendant’s situation.
          We conclude the trial court did not err in denying defendant’s request for recall of
his sentence.4




4     Whether defendant may have some other remedy is not before us and we do not
express any opinion on the availability of other remedies.

                                                7
                               DISPOSITION
      The order is affirmed.



                                                   /s/
                                        HOCH, J.



We concur:



          /s/
RAYE, P. J.



         /s/
RENNER, J.




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