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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Gina Marie LOCKRIDGE, Defendant and Respondent.

No. D015858.

Decided: December 15, 1992

Edwin L. Miller, Jr., Dist. Atty., Thomas F. McArdle and Craig E. Fischer, Deputy Dist. Attys., for plaintiff and appellant. Jan Stiglitz, San Diego, under appointment by the Court of Appeal, for defendant and respondent.

 In this appeal we address the court's power under Penal Code 1 section 1170, subdivision (d), to recall a prison sentence and impose a new and different sentence.   This power may be exercised by the court only within 120 days of the date of original prison commitment.   The court has no discretion or power to extend this 120–day period, its jurisdiction to recall the sentence expiring upon the termination of the period.  (People v. Roe (1983) 148 Cal.App.3d 112, 117, 195 Cal.Rptr. 802.)   The question here presented is whether the filing of a notice of appeal deprives the trial court of its power, pending the appeal, to recall the sentence and impose a new and different sentence.   A related issue is whether the running of the 120–day period is tolled by the filing of an appeal.

Our conclusion is that although the trial court loses jurisdiction for most purposes upon the filing of an appeal, it is not deprived of its power to recall its sentence and impose a new sentence under section 1170, subdivision (d).   Accordingly, the filing of a notice of appeal does not toll the running of the 120–day period, and after the expiration of same the court loses jurisdiction to recall and modify the sentence, even though part of that period coincided with the pendency of an appeal.


Underlying Facts

Defendant was originally charged with multiple counts of felony child abuse (specifically, violation of §§ 273a, subd. (1), 273d, 245, subd. (a)(1), and great bodily injury enhancements under § 12022.7).   Defendant originally entered a not guilty plea, but on the date set for trial withdrew her plea and entered guilty pleas to three counts of willful cruelty or unjustifiable punishment of a child under section 273a, subdivision (1), admitting one great bodily injury enhancement.

A summary of the offenses as contained in the probation report prepared for sentencing was as follows:

“At the preliminary hearing, 12–year–old Richard J. testified in September 1988 he went to live with his maternal grandfather and his wife, Lockridge, after Richard's mother was ‘put in jail.’   Over the next six months, Richard or one of the two other children living in Lockridge's home was beaten with an electric cord, a shoe, a mallet and a broom handle;  and punched, kicked, choked, thrown across the room, held underwater and hit with a hair spray can.   They had their ears twisted, their teeth removed with pliers and hot water poured on their genitals.”  (See People v. Lockridge (May 2, 1991) D012519 [nonpub. opn.] p. 1.)

The plea bargain contained a stipulation to a nine-year prison sentence.   The probation department recommended imprisonment for eleven years and eight months.   After conducting a diagnostic study the court imposed a sentence of five years in prison.


Postsentence Developments

Defendant's five-year prison term was imposed on May 22, 1990.   Defendant moved the court to modify her sentence in June 1990, which motion was denied.   She filed her notice of appeal from the court's judgment on June 27, 1990.   Defendant then, on September 11, 1990 (within the 120–day period following her sentencing) again moved the court to modify her sentence.   On October 18, 1990, the court denied her motion, stating as its reason that “this court lacks jurisdiction, therefore, no action is taken at this time.”

In May 1991 this court issued an unpublished opinion affirming defendant's conviction and sentence.   The defendant then being out of custody on bail, the trial court set August 7, 1991, as the date for the defendant to appear for execution of the judgment.   On that date the court issued an order recalling the sentence and setting a hearing date of October 7, 1991, to reconsider the sentence under section 1170, subdivision (d).   After further continuances, the court ultimately, on November 25, 1991, imposed a new and different sentence of probation.   The court's apparent rationale was that it was precluded from exercising sentence review powers under section 1170, subdivision (d) during the pendency of the appeal.   Therefore, the running of the statutory 120–day period for sentence modification was tolled during the period, hence extending the period to a time following reacquisition of jurisdiction by the trial court.

The court's motivation for striking the balance of defendant's prison term, the factual basis for which we do not dispute, was that defendant during the period had “changed 180 degrees.”   She had admitted her acts, shown remorse, undertaken counseling, had been at home on bail, and was now parenting the children in an appropriate manner.   The court concluded that further imprisonment would “probably put an end to this family unit forever” and that society would receive more benefit from unifying the family.



 The People assert that the 120–day period in section 1170, subdivision (d) during which the court may recall and resentence runs uninterrupted from the original sentencing and is not tolled by the defendant's filing of a notice of appeal.   They conclude the trial court lacked jurisdiction to recall the sentence in August 1991 or to resentence Lockridge on November 25.

Section 1170, subdivision (d) states:

“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 Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, 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 resentence 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.”

 Section 1170, subdivision (d) confers upon the trial court broad authority to “recall a sentence on its own motion for any reason rationally related to lawful sentencing [and] then impose any otherwise lawful resentence suggested by the facts available at the time of resentencing.”   (Dix v. Superior Court (1991) 53 Cal.3d 442, 456, 279 Cal.Rptr. 834, 807 P.2d 1063.)   However, the 120–day period specified in section 1170, subdivision (d) is jurisdictional;  the court must recall the sentence within the prescribed period.  (Id. at p. 464, 279 Cal.Rptr. 834, 807 P.2d 1063;  People v. Roe, supra, 148 Cal.App.3d at p. 116, 195 Cal.Rptr. 802.)

As a general rule, “[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur” (People v. Perez (1979) 23 Cal.3d 545, 554, 153 Cal.Rptr. 40, 591 P.2d 63) and deprives the trial court of jurisdiction to make any order affecting the judgment (In re Osslo (1958) 51 Cal.2d 371, 379–380, 334 P.2d 1).   We agree with the People that section 1170, subdivision (d) provides an exception to the general rule, that is, the 120–day period beginning upon Lockridge's commitment on May 22, 1990, was not tolled during the pendency of her subsequent appeal.   While there are no reported cases expressly discussing this issue, there are cases in which trial courts have recalled sentences after the filing of notices of appeal (see People v. Gainer (1982) 133 Cal.App.3d 636, 637–639, 184 Cal.Rptr. 120;  People v. Gordon (1985) 165 Cal.App.3d 839, 845, 212 Cal.Rptr. 174;  People v. Zaring (1992) 8 Cal.App.4th 362, 10 Cal.Rptr.2d 263), and there is at least one case containing dictum suggesting there is no tolling (In re Stallings (1970) 5 Cal.App.3d 322, 328–329, 85 Cal.Rptr. 96 [discussing former section 1168, the predecessor to section 1170, subdivision (d) ], disapproved on other grounds by People v. Cookson (1991) 54 Cal.3d 1091, 1100, 2 Cal.Rptr.2d 176, 820 P.2d 278).   California Rules of Court, rule 33(d) provides:  “If the judgment is amended or recalled after the transcript is certified, copies of the amended abstract of judgment or other new dispositional order shall be certified and transmitted to the reviewing court, the defendant, the Attorney General, and defendant's counsel on appeal․”   This suggests the propriety of recall after the filing of the notice of appeal.

Policy reasons support our conclusion.  “The obvious danger posed by the perpetuation of a court's jurisdiction to recall a sentence long after it has been executed is that it works an infringement upon the power of the executive branch, under the auspices of the Department of Corrections, to fix sentences and grant parole․”  (People v. Calhoun (1977) 72 Cal.App.3d 494, 497, 140 Cal.Rptr. 225 [rejecting the defendant's contention that section 1168 permitted the trial court to extend the 120–day period by “successive invocations of the recall and sentencing power.”].)  Open-ended authority to recall and resentence would also “infringe on the power of the Legislature to establish a determinate sentencing system providing statutorily fixed terms for given crimes to be imposed by courts with limited discretion to vary those terms․”  (People v. Roe, supra, 148 Cal.App.3d at p. 117, 195 Cal.Rptr. 802.)

 Because we conclude the trial court's recall and resentencing were fatally untimely, we need not address the People's further contention the court lacked jurisdiction to modify its sentence after this court had affirmed the judgment and remanded the matter for the limited purpose of executing the sentence.   Lockridge, however, argues even if the court lacked jurisdiction to recall and resentence, we should affirm the order of probation made after the purported recall because her return to prison would be a hardship for her and the children who are now back home.  (People v. Tanner (1979) 24 Cal.3d 514, 521–522, 156 Cal.Rptr. 450, 596 P.2d 328;  People v. Holt (1985) 163 Cal.App.3d 727, 734, 209 Cal.Rptr. 643.)

In Tanner, the defendant, who had no criminal record, robbed a store using an unloaded handgun, instructing the clerk to sound an alarm and notify the police.  (People v. Tanner, supra, 24 Cal.3d at p. 518, 156 Cal.Rptr. 450, 596 P.2d 328.)   He was arrested nearby a half-hour later.   He explained at trial he had committed the crime in order to persuade the store's owner to renew recently discontinued security services provided by the defendant's employer.  (Ibid.)  The trial judge suspended execution of sentence and placed the defendant on probation for five years on the condition that he serve one year in the county jail.   The Supreme Court later determined that it was not within the court's power to impose this lesser penalty, as distinguished from the prison incarceration required by the terms of the applicable statute.   The defendant having by that time fulfilled the terms of his probationary grant, including the year term in jail, the Supreme Court found that reinstating a new prison term would be unjust.

Holt reached the same conclusion as Tanner under similar circumstances.   Other cases, however, have declined to do so, rejecting defendants' arguments that further incarceration would be unjust or concluding there was no uncertainty in the law.  (People v. Gonzales (1979) 96 Cal.App.3d 725, 727–728, 158 Cal.Rptr. 205;  People v. Enriquez (1985) 173 Cal.App.3d 990, 997, 999, 219 Cal.Rptr. 325;  People v. Ibarra (1980) 114 Cal.App.3d 60, 66 fn. 5, 170 Cal.Rptr. 440;  People v. Almodovar (1987) 190 Cal.App.3d 732, 749–750, 235 Cal.Rptr. 616;  People v. Sandoval (1987) 194 Cal.App.3d 481, 488, 239 Cal.Rptr. 544;  People v. Reyes (1989) 212 Cal.App.3d 852, 857, 260 Cal.Rptr. 846.)   We determine these cases apply here.   Although Lockridge spent quite some time incarcerated, rather than simply serving a jail term as a condition of probation, she will receive credit for time served.

While the practical effect of returning the defendant to prison may not be of particular benefit to society, as the trial judge found, we conclude that this possible result is insufficient reason for breaching the sound policy principles underlying the limitation of the court's power to resentence to 120 days following the date of the original sentence.


The judgment is modified to reflect the original five-year prison sentence and is affirmed as modified.


FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FROEHLICH, Associate Justice.

BENKE, Acting P.J., and NARES, J., concur.