People v. Gutierrez

THE PEOPLE, Plaintiff and Respondent, v. ANDRES GUTIERREZ, Defendant and Appellant.

B311753

California Court of Appeals, Second District, Second Division

July 26, 2021

NOT TO BE PUBLISHED

Los Angeles County Super. Ct. No. PA023215

THE COURT:

Andres Gutierrez was convicted in 1997 of murder and assault with a firearm. (Pen. Code, §§ 187, subd. (a), 245, subd. (a)(2), 12022.5, subd. (a).) He was sentenced to 25 years to life for murder, plus eight years for the assault and firearm use. This court affirmed the judgment on direct appeal in People v. Gutierrez (Oct. 13, 1998, B112355) [nonpub. opn.].

In February 2021, Gutierrez sought to vacate fines and fees imposed at his sentencing hearing, arguing that the court failed to determine his ability to pay. He asserted that he can be resentenced because his case “is not yet final on direct appeal.” The court denied his motion. He appealed.

Appointed counsel filed an appellate brief raising no issues. (People v. Serrano (2012) 211 Cal.App.4th 496, 503.) We gave Gutierrez notice of his right to file a supplemental brief. Though he did not respond to our notice, his notice of appeal contains a four-page argument pressing his claim that the court violated his rights by imposing fees and fines.

The trial court had no power to grant Gutierrez's motion. A court may recall a sentence, on its own motion, within 120 days after committing the defendant to prison. (Pen. Code, § 1170, subd. (d)(1); Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) The court loses jurisdiction to recall and resentence once 120 days have passed since commitment. (Dix, at p. 464.)

Gutierrez was committed to prison on May 13, 1997. The court lacked jurisdiction in 2021 to recall its sentence, hold a new hearing, or modify the terms of its judgment. We must dismiss the appeal. (People v. Magana (2021) 63 Cal.App.5th 1120, 1127-1128; People v. Jinkins (2020) 58 Cal.App.5th 707, 712-713; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726; People v. Fuimaono (2019) 32 Cal.App.5th 132, 133-135.)

DISPOSITION

The appeal is dismissed.

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.