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Name: People v. Chamizo
Case #: C086712
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/27/2019

Because the amendment to Health and Safety Code section 11370.2 (narrowing the crimes subject to the enhancement) was not retroactive to cases whose judgments were final on its effective date, defendant’s appeal must be dismissed. In 2015, Chamizo pleaded no contest to felony transportation of cocaine and admitted two section 11370.2, subdivision (a) enhancements based on his prior drug convictions. He did not appeal and the judgment became final in 2015. In 2017, the Legislature amended section 11370.2 to narrow the crimes to which the enhancement provision applied, effective January 1, 2018 (SB 180). As amended, the sentence enhancement provided for by section 11370.2 would not apply to the defendant. He filed a motion for resentencing to reduce his sentence by striking the two section 11370.2 enhancements. The trial court concluded the amendments were not retroactive to final judgments and denied the motion. Defendant appealed. Held: Appeal dismissed. A defendant may appeal from a final judgment of conviction or from any order after judgment which affects his or her substantial rights. Under the common law, a trial court generally loses jurisdiction to resentence a criminal defendant once execution of sentence has commenced. Thus, once judgment is rendered, except for limited statutory exceptions, the sentencing court is without jurisdiction to vacate or modify the sentence. None of the exceptions apply in this case. The 2015 judgment was final before the effective date of the amendment to section 11370.2 and the trial court had no jurisdiction to entertain the motion. Because the court was without jurisdiction to consider the motion, its denial did not impact defendant’s substantial rights. The appeal must be dismissed as from a nonappealable order. Although the Legislature could have devised the amendment to permit a remedy by way of a postjudgment motion (cf., Pen. Code, § 1170.126), it did not do so. The Court of Appeal declined to deem Chamizo’s motion as a petition for writ of habeas corpus to cure the jurisdictional deficiency.

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