Filed 3/20/17
                      CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                       DIVISION FIVE


THE PEOPLE,
        Plaintiff and Appellant,
                                                   A147075
v.
JESSE LIN ANTOLIN,                                 (San Mateo County
                                                   Super. Ct. No. SC073522A)
        Defendant and Respondent.


        In 2013, defendant Jesse Lin Antolin was sentenced to an 11 year term in county
jail. In 2015, the trial court granted his motion to recall the sentence and modify it to a
―split sentence,‖ with the remaining unserved time to be spent on mandatory
supervision.1 The People appeal, arguing the trial court lacked the authority to modify
the sentence. We agree and hold that after the execution of defendant‘s sentence for a
term in county jail pursuant to the Realignment Act had begun, the trial court lacked
jurisdiction to modify the sentence.
                                       BACKGROUND

*
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.
1
 ―A split sentence is a hybrid sentence in which a trial court suspends execution of a
portion of the term and releases the defendant into the community under the mandatory
supervision of the county probation department. Such sentences are imposed pursuant to
Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part
of the ‗2011 Realignment Legislation addressing public safety.‘ (Criminal Justice
Realignment Act of 2011 (Realignment Act), operative Oct. 1, 2011, as added by Stats.
2011, 1st Ex. Sess. 2011–2012, ch. 12, § 1.)‖ (People v. Camp (2015) 233 Cal.App.4th
461, 464, fn. 1 (Camp).)


                                              1
         A jury convicted defendant of possession of methamphetamine for sale (Health &
Saf. Code, § 11378), and the trial court found defendant had three prior narcotics sales
convictions (Health & Saf. Code, § 11370.2, subd. (c)).2 In 2013, the trial court
sentenced defendant to 11 years in county jail pursuant to former Penal Code section
1170, subdivision (h)(5)(A).3 In January 2015, this court affirmed the judgment.
         In August 2015, defendant filed a motion to recall his sentence and modify it to
provide he serve the remaining term on mandatory supervision, to permit him to complete
his sentence in a residential drug treatment program. Over the People‘s opposition, the
trial court granted the motion and modified defendant‘s sentence, ordering an 11-year
split sentence with the period of mandatory supervision to begin that day. The People
appealed.4
                                         DISCUSSION
I. Authority to Modify Sentence
         The People argue the trial court lacked the authority to recall and modify
defendant‘s sentence. We agree.
         ―Under the general common law rule, a trial court is deprived of jurisdiction to
resentence a criminal defendant once execution of the sentence has commenced.[5]

2
    The underlying facts are not relevant to this appeal.
3
 All undesignated section references are to the Penal Code. Although section 1170,
subdivision (h)(5)(A) currently provides trial courts shall impose split sentences unless
not in the interests of justice, this provision took effect after defendant‘s sentencing.
(Stats. 2014, ch. 26, § 16; § 1170, subd. (h)(7) [amendment effective Jan. 1, 2015 and
applies prospectively only].)
4
 The order is appealable by the People as ―[a]n order made after judgment, affecting the
substantial rights of the people.‖ (§ 1238, subd. (a)(5); see also Camp, supra, 233
Cal.App.4th at p. 466, fn. 7.)
5
  There are certain exceptions to this rule, none of which are present here. (See People v.
Amaya (2015) 239 Cal.App.4th 379, 384–386 [listing exceptions].) Defendant suggests
this common law rule applies only to state prison sentences. We disagree, as it has been
applied to sentences of fines only (People v. McAllister (1940) 15 Cal.2d 519) and to
sentences to county jail (People v. Thomas (1959) 52 Cal.2d 521).


                                                2
[Citations.] Where the trial court relinquishes custody of a defendant, it also loses
jurisdiction over that defendant. [Citation.] If, however, the trial court ‗retains in itself
the actual or constructive custody of the defendant and the execution of his sentence has
not begun,‘ the court may vacate and modify the sentence.‖ (People v. Karaman (1992)
4 Cal.4th 335, 344 (Karaman).) ―As long as the trial court retains in itself the actual or
constructive custody of the defendant and the execution of his sentence has not begun, it
retains jurisdiction over the defendant and the res of the action . . . .‖ (In re Black (1967)
66 Cal.2d 881, 888.)
       Defendant does not dispute that the execution of his 2013 sentence had begun, as
he had served some years of the sentence at the time it was modified.6 He argues,
however, that the common law rule that jurisdiction is lost upon execution of the sentence
does not apply to sentences imposed pursuant to the Realignment Act because the
Realignment Act‘s ―sentencing framework is a ‗wholly statutory‘ creation of very recent
origin.‖ We disagree.
       As an initial matter, that a sentencing framework is ―wholly statutory‖ cannot be
dispositive of the matter. The Determinate Sentencing Law is ―wholly statutory,‖ but
there is no dispute that the common law rule regarding jurisdiction to modify sentences
applies to state prison sentences imposed pursuant to this statutory scheme, except to the
extent that a statute specifically provides otherwise. (See Dix v. Superior Court (1991)
53 Cal.3d 442, 455 (Dix) [―Section 1170(d) was enacted in 1976 as part of the



6
  ―In a criminal case, the execution of a judgment of conviction is the process of carrying
the judgment into effect. [Citation.] The manner of executing a judgment sentencing a
defendant to imprisonment is prescribed by the Penal Code.‖ (Karaman, supra, 4 Cal.4th
at p. 344, fn. omitted.) The Penal Code provides where, as here, ―the judgment is for
. . . imprisonment pursuant to subdivision (h) of Section 1170, either a copy of the minute
order or an abstract of the judgment . . . shall be forthwith furnished to the officer whose
duty it is to execute the . . . judgment, and no other warrant or authority is necessary to
justify or require its execution.‖ (§ 1213, subd. (a); see also Karaman, at p. 345 [for
judgment to state prison, ― ‗at least upon the receipt of the abstract of the judgment by the
sheriff, the execution of the judgment is in progress‘ ‖].)


                                               3
Determinate Sentencing Act‖ and ―is an exception to the common law rule that the court
loses resentencing jurisdiction once execution of sentence has begun.‖].)
       Instead, ― ‗[a]s a general rule, ―[u]nless expressly provided, statutes should not be
interpreted to alter the common law, and should be construed to avoid conflict with
common law rules. [Citation.] ‗A statute will be construed in light of common law
decisions, unless its language ― ‗clearly and unequivocally discloses an intention to
depart from, alter, or abrogate the common-law rule concerning the particular subject
matter . . . .‘ [Citations.]‖ [Citation.]‘ ‖ [Citation.] Accordingly, ―[t]here is a
presumption that a statute does not, by implication, repeal the common law. [Citation.]
Repeal by implication is recognized only where there is no rational basis for harmonizing
two potentially conflicting laws.‖ ‘ ‖ (People v. Ceja (2010) 49 Cal.4th 1, 10 (Ceja).)
       Defendant relies heavily on Camp, in which the defendant was sentenced to a split
sentence under the Realignment Act. (Camp, supra, 233 Cal.App.4th at p. 465.) At the
conclusion of the county jail term, probation officials learned Camp was to be deported
upon his release from jail and would therefore be unavailable for mandatory supervision.
(Ibid.) The trial court terminated Camp‘s mandatory supervision and modified his
sentence to omit the mandatory supervision term. (Id. at p. 466.) The Court of Appeal
rejected the People‘s argument that the trial court lacked authority to modify the sentence
after its execution had begun pursuant to the common law rule discussed above. (Id. at
p. 470–471.) Defendant argues this analysis suggests the trial court here had authority to
modify his sentence.
       There are significant differences in the Realignment Act between split sentences
and straight sentences to county jail, however. At the time of defendant‘s 2013
sentencing, a Realignment Act sentence could be either ―[f]or a full term in custody [in
county jail] as determined in accordance with the applicable sentencing law,‖ or ―[f]or a
term as determined in accordance with the applicable sentencing law, but suspend
execution of a concluding portion of the term‖ which shall be served on mandatory
supervision. (Former § 1170, subd. (h)(5)(A)-(B), italics added.) When a defendant is
serving the jail portion of a split sentence, therefore, execution of the concluding portion


                                              4
of the jail term has not yet begun and the common law rule would not deprive the trial
court of jurisdiction (at least as to the concluding portion of the sentence). Moreover, the
Penal Code explicitly provides that trial courts retain jurisdiction to modify the
mandatory supervision term. Section 1170, subdivision (h)(5)(B) provides: ―The period
of supervision shall be mandatory, and may not be earlier terminated except by court
order.‖ (Italics added.) Section 1203.3, subdivision (a) provides: ―The court shall also
have the authority at any time during the term of mandatory supervision . . . to revoke,
modify, or change the conditions of the court’s order suspending the execution of the
concluding portion of the supervised person’s term.‖ (Italics added.)
       In other words, as to the mandatory supervision portion of a split sentence, there
are statutes that ― ‗ ― ‗ ― ‗clearly and unequivocally disclose[] an intention to depart from,
alter, or abrogate the common-law rule . . . .‘ ‖ ‘ ‖ ‘ ‖ (Ceja, supra, 49 Cal.4th at p. 10.)
In contrast, at the time of defendant‘s sentencing, there were no statutes authorizing
modification of a straight county jail Realignment Act sentence after its execution had
begun. (See Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2016) ¶ 11:14 [―it
does not appear the court has any authority to modify a straight sentence imposed under
section 1170(h)(5),‖ noting that in the statutes authorizing modification of mandatory
supervision, ―[n]o mention is made of straight sentences under section 1170(h)(5)(A)‖].)
       People v. Howard (1997) 16 Cal.4th 1081 (Howard) supports this analysis. In
Howard, the Supreme Court held when a trial court imposes a sentence but suspends
execution to grant probation, then subsequently revokes probation, the court lacks
authority to modify the sentence. (Id. at p. 1084.) This limitation on trial courts‘
authority was imposed by statute, which controlled the issue despite the common law
rule, expressed in Karaman, that a trial court retains jurisdiction to modify a sentence
before its execution has begun: ―Unlike the situation in Karaman, to which common law
rules applied regarding retention of sentencing jurisdiction over the defendant, the
authority to grant probation and to suspend imposition or execution of sentence is wholly
statutory. . . . [¶] Our main purpose in Karaman was to address a situation that no statute
directly controlled . . . . [Karaman] did not change the long-standing statutory rule that,


                                              5
when a court revokes probation, canceling the suspension of a previously imposed
sentence necessarily puts that sentence into ‗full force and effect.‘ ‖ (Howard, at
pp. 1092–1093.) Unlike the situation in Howard, at the time of defendant‘s sentencing
no statute governed the trial court‘s retention of jurisdiction over straight county jail
Realignment Act sentences. In the absence of any such statute, the common law governs
and provides the trial court lost jurisdiction to modify the sentence after execution had
begun. (Ceja, supra, 49 Cal.4th at p. 10.)
       As the parties note, section 1170, subdivision (d) has since been amended to
authorize trial courts to recall Realignment Act sentences within 120 days. The former
statute provided, ―When a defendant subject to this section . . . 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, . . . 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.‖ (Former § 1170, subd. (d)(1).) Effective
January 1, 2016, the amended statute applies also to a defendant who ―has been sentenced
to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has
been committed to the custody of the secretary or the county correctional administrator.‖
(§ 1170, subd. (d)(1), italics added.)7
       We agree with the People that the legislative history of this amendment supports
our conclusion that, prior to the amendment, a trial court had no authority to modify a
straight county jail Realignment Act sentence after its execution had begun. ―Section
1170(d) is an exception to the common law rule that the court loses resentencing
jurisdiction once execution of sentence has begun.‖ (Dix, supra, 53 Cal.3d at p. 455.)
The Legislative Counsel‘s Digest to the bill enacting the amendment explains: ―Existing
law authorizes a court to recall a sentence of imprisonment in the state prison and to

7
 Defendant appears to concede that, had the amended statute been in effect at the time of
his sentencing, the trial court would have lacked the authority to modify his sentence
after 120 days.


                                              6
resentence a defendant in the same manner as if the defendant had not previously been
sentenced . . . . [¶] This bill would similarly authorize the court to recall a sentence of
imprisonment in a county jail for a felony . . . .‖ (Legis. Counsel‘s Dig., Assem. Bill No.
1156 (2015-2016 Reg. Sess.), italics added.) The statement that the bill will ―authorize‖
a trial court to resentence a defendant suggests the trial court previously lacked any such
authority.
       Finally, defendant argues that the common law rule was not violated here because
the trial court did not alter the overall length of the sentence, but merely changed it from
a straight county jail term to a split sentence. Under the common law rule, a trial court
loses jurisdiction over a defendant when the execution of sentence begins. Defendant
does not explain how a trial court could nonetheless retain jurisdiction to modify the form
of the sentence, and he cites no authority to support such a construction of the common
law rule. (See Karaman, supra, 4 Cal.4th at p. 350 [objective of common law rule is
―obtaining finality in legal proceedings‖].) Because the trial court lost jurisdiction over
defendant when execution of his county jail sentence began, the court lacked authority to
modify the sentence by converting it to a split sentence.
II. Sentence on Remand
       Defendant argues that, if this court concludes the trial court lacked authority to
modify his sentence, returning him to custody would be unjust.
       In People v. Tanner (1979) 24 Cal.3d 514 (Tanner), after holding the defendant‘s
grant of probation was unauthorized, the Supreme Court concluded: ―Mr. Tanner having
complied with his conditions of probation—including one year‘s stay in county jail—we
determine a second incarceration would be unjust.‖ (Id. at p. 522.)8 Such an outcome is
only warranted when three circumstances are present: ―The mistake in the original grant


8
 Although our Supreme Court has since questioned Tanner’s viability, it has not been
overturned. (People v. Clancey (2013) 56 Cal.4th 562, 586 [―We . . . find it unnecessary
here to decide whether Tanner remains good law.‖]; People v. Statum (2002) 28 Cal.4th
682, 697, fn. 5 [―Even if Tanner remains good law, defendant cannot satisfy this test.‖].)
Consequently, we follow it.


                                               7
of probation must have arisen from an uncertainty in the law reasonably giving rise to the
trial court‘s erroneous disposition‖; ―the defendant ha[s] served or complied with the
terms of probation, and that in reliance thereon he shall have returned to a law-abiding
and productive life‖; and, ―because of unusual circumstances generating some unique
element of sympathy for the defendant‘s plight, returning him to jail would be more than
usually painful or ‗unfair.‘ ‖ (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1759
(Lockridge).)
       Although the parties ask us to determine whether defendant satisfies this three-part
test, the record before us is insufficient to do so. The first requirement is obviously met;
as in Lockridge, our decision to publish this opinion reflects our conclusion no published
case has expressly resolved this question. (Lockridge, supra, 12 Cal.App.4th at p. 1760.)
We express no opinion on the second and third requirements, and conclude they are more
appropriately considered in the first instance by the trial court.9
                                       DISPOSITION
       The order modifying defendant‘s sentence is reversed and the matter is remanded
for further proceedings not inconsistent with this opinion.




9
 The People concede that, if defendant is returned to jail, he is entitled to actual credit for
his time spent on mandatory supervision.


                                               8
                  SIMONS, J.




We concur.




JONES, P.J.




NEEDHAM, J.




(A147075)



              9
10
Superior Court of San Mateo County, No. SC073522A, Hon. Mark R. Forcum, Judge.


Jonathan Soglin and Jeremy Price, under appointment by the Court of Appeal, for
Defendant and Appellant.



Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bridget
Billeter, Deputy Attorney General, for Plaintiff and Respondent.




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