Filed 12/27/19 P. v. Washington CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

v.

ISAIAH NOLAN WASHINGTON,

Defendant and Appellant.

A158292

(Alameda County

Super. Ct. No. H53084A)

In March 2015, a jury found Isaiah Washington guilty of two counts of murder (Pen. Code, § 187, subd. (a)), one count of attempted murder (§§ 187, subd. (a), 664, subd. (a)), and one count of possession of a firearm by a felon (§ 12022.1). In September 2015, the trial court sentenced Washington to prison for two consecutive terms of life without the possibility of parole.

On July 1, 2019, Washington filed a motion for modification of his sentence. The court denied the motion. Washington appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2015, Washington and Tiara Arnold were convicted of two murders and one attempted murder. Washington was sentenced in September 2015. In a prior appeal, this court affirmed the trial court’s judgment as to Washington. (People v. Washington (Jun. 12, 2018, A146433) [nonpub. opn.].)

On December 21, 2018, and again on January 16, 2019, Washington filed petitions for resentencing pursuant to section 1170.95. On January 18, 2019, the court denied the petitions. Washington’s appeal of the court’s order denying the petitions is pending in this court in case No. A158017.

On July 1, 2019, Washington filed a motion for modification of his sentence pursuant to section 1170, subdivision (d)(1), section 1170.95, and Senate Bill No. 1437. On July 15, 2019, the court denied the motion.

DISCUSSION

On appeal, Washington’s appointed counsel—who also represents Washington in case No. A158017—filed a Wende brief, asking this court to review the record to determine whether there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436.) Washington’s appointed counsel informed Washington that he had the right to file a supplemental brief on his own behalf. Washington has not done so.

In the Wende brief, Washington’s counsel notes two issues that might support the appeal; namely, whether the trial court erred in rejecting Washington’s claims pursuant to section 1170, subdivision (d)(1), and whether the trial court erred in determining it had no jurisdiction under the same provision.

We discern no error in the trial court’s reasoning. Ordinarily, a trial court lacks jurisdiction to alter a defendant’s sentence once execution of the sentence has begun. (People v. Karaman (1992) 4 Cal.4th 335, 344.) Section 1170, subdivision (d)(1) provides a limited exception. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Pursuant to section 1170, subdivision (d)(1), a trial court “may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary [of the Department of Corrections and Rehabilitation] or the Board of Parole Hearings . . . or the district attorney . . . , recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.”

Here, as noted by the court in its order denying Washington’s motion, it had been more than 120 days since Washington’s commitment and the court received no recommendation to recall his sentence. Section 1170, subdivision (d) “provides that the trial court loses jurisdiction to resentence on its own motion after 120 days has elapsed.” (People v. Loper (2015) 60 Cal.4th 1155, 1165.) Because the court had no jurisdiction to modify Washington’s sentence pursuant to section 1170, subdivision (d), we do not address the merits of Washington’s contentions in his motion. We have reviewed the record pursuant to Wende and find no arguable appellate issue.

DISPOSITION

We affirm the court’s July 15, 2019 order denying Washington’s motion for a modification of his sentence.

 

_________________________

Jones, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Burns, J.

A158292