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People v. Antolin

California Court of Appeals, First District, Fifth Division

March 20, 2017

THE PEOPLE, Plaintiff and Appellant,
v.
JESSE LIN ANTOLIN, Defendant and Respondent.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         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.

          SIMONS, J.

         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

         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] [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 ...


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