People v. Langram CA2/7 ( 2020 )

Filed 11/3/20 P. v. Langram CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303772
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146117)
v.
LA CHARRIE DIANE
LANGRAM,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lynn D. Olson, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________
La Charrie Diane Langram appeals from the superior
court’s denial of her petition to recall her sentence pursuant to
Penal Code1 section 1170, subdivision (d). Because Langram is
appealing from a nonappealable order, we dismiss the appeal.
PROCEDURAL BACKGROUND
On July 19, 2018 Langram waived her right to a
preliminary hearing and entered a negotiated plea of no contest
to count 2 for assault with a firearm (§ 245, subd. (a)(2)) and
count 3 for assault with a deadly weapon (id., subd. (a)(1)), and
she admitted she personally used a firearm in the commission of
the assault charged in count 2 (§ 12022.5, subd. (a)). The trial
court sentenced Langram to an aggregate state prison term of 15
years.
On December 2, 2019 Langram petitioned to recall her
sentence under section 1170, subdivision (d)(1), seeking to have
her firearm-use enhancement stricken and to be resentenced.
The superior court denied the petition, stating section 1170,
subdivision (d)(1), “has no provision for inmates to request
resentencing.” Langram appealed.
DISCUSSION
We appointed counsel to represent Langram on appeal.
After examination of the record, counsel filed an opening brief in
which no issues were raised. Appellate counsel advised Langram
she could submit a supplemental brief raising any contentions or
1 All further statutory references are to the Penal Code.
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issues she wished us to consider. On July 13, 2020 we received a
one-page handwritten response in which Langram stated she
“[n]ever used or had a gun.” (See Smith v. Robbins (2000)
528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-
119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
Generally, a trial court has no jurisdiction to resentence a
defendant after execution of the sentence has begun. (People v.
Karaman (1992) 4 Cal.4th 335, 344; People v. Torres (2020)
44 Cal.App.5th 1081, 1084.) However, the trial court may recall
the sentence and resentence a defendant within 120 days of his
or her commitment into custody or upon a recommendation of the
secretary of the California Department of Corrections and
Rehabilitation, the Board of Parole Hearings, or the district
attorney. (§ 1170, subd. (d)(1); see Dix v. Superior Court (1991)
53 Cal.3d 442, 455 [“Section 1170(d) is an exception to the
common law rule that the court loses resentencing jurisdiction
once execution of sentence has begun.”].) In addition,
“[u]nauthorized sentences and “‘“‘obvious legal errors at
sentencing that are correctable without referring to factual
findings in the record or remanding for further findings’”’” are
correctable at any time. (Torres, at p. 1085.)
Here, Langram filed her petition for recall and
resentencing more than 120 days after execution of her sentence
commenced, and she does not fall within any of the exceptions
that may be corrected after the 120-day period. (People v. Torres,
supra, 44 Cal.App.5th at p. 1085.) If the trial court does not have
jurisdiction to rule on a motion to vacate or modify a sentence, an
order denying the motion is nonappealable, and any appeal from
the order must be dismissed. (Id. at p. 1084; accord, People v.
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Turrin (2009) 176 Cal.App.4th 1200, 1208; see People v.
Fuimaono (2019) 32 Cal.App.5th 132, 135.)
DISPOSITION
The appeal is dismissed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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