California Court of Appeals, First District, Fifth Division
FOR PARTIAL PUBLICATION [*]
Court of San Mateo County, No. SC073522A, Hon. Mark R.
Jonathan Soglin and Jeremy Price, under appointment by the
Court of Appeal, for Defendant and Appellant.
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.
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. 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.
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)). In 2013, the trial court sentenced
defendant to 11 years in county jail pursuant to former Penal
Code section 1170, subdivision (h)(5)(A). In January 2015,
this court affirmed the judgment.
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.
Authority to Modify Sentence
People argue the trial court lacked the authority to recall
and modify defendant's sentence. We agree.
the general common law rule, a trial court is deprived of
jurisdiction to resentence a criminal defendant once
execution of the sentence has commenced. [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.)
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. 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