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Name: People v. Amaya
Case #: E060218
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 08/11/2015

Trial court’s order mistakenly granting Proposition 36 relief to a petitioner who was ineligible is void and petitioner was properly resentenced to term of 25 years to life. In 2008, a jury found Amaya guilty of attempted extortion (Pen. Code, § 524) and found true a gang allegation (Pen. Code, § 186.22, subd. (b)). Because Amaya had two prior strikes, he was sentenced to 25 years to life under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court did not impose any term for the gang allegation and it was not reflected in the abstract of judgment. In 2013, Amaya petitioned for resentencing under the Three Strikes Reform Act (Pen Code, § 1170.126; Prop. 36). However, the gang allegation disqualified Amaya from Proposition 36 relief because it caused his current conviction for attempted extortion to be a serious felony. All the parties and the court clerk mistakenly represented to the trial court that the gang allegation had been stricken and the court, believing Amaya was eligible for Proposition 36 relief, granted the petition, resentenced Amaya, and released him from prison with credit for time served. A month later the People detected the mistake and moved to recall or set aside as void the resentencing order. The trial court vacated the resentencing order and reinstated the original sentence. Amaya appealed. Held: Affirmed. A trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. Clerical errors, unauthorized sentences, and Penal Code section 1170, subdivision (d) are exceptions that permit resentencing in certain circumstances, but they could not properly be invoked in this case. However, another exception is a sentence that is void on the face of the record. Here, the record demonstrated that the court granted Proposition 36 relief that it had no power to grant. “Hence [its order] was void on the face of the record and could be set aside at any time.”