Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR24656
Haerle, Acting P. J.
I. INTRODUCTION
Appellant Thomas W. Haner appeals from an order denying his request for recalculation of his maximum term of commitment and for unconditional release from his insanity commitment. We conclude that the trial court did not have jurisdiction to issue the February 2, 1999, amended commitment order in this matter increasing defendant’s sentence and, therefore, must reinstate its original commitment order.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 1997, Haner was charged with one felony count of burglary (Pen. Code, § 459 ) and one felony count of receiving stolen property (§ 496, subd. (a)). The information also alleged two enhancements: one for a prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)) and a prior strike conviction (§ 1170.12).
All further statutory references are to the Penal Code, unless otherwise noted.
On June 20, 1997, Haner appeared before the court and entered a plea of not guilty by reason of insanity. On July 10, 1997, Haner waived his right to a trial on the issue of his guilt by reason of insanity and submitted the matter to the court on the reports of two doctors. The court then found Haner not guilty by reason of insanity.
The court then stated, “What about misdemeanors? He’s got two felonies. . . . Four fifty-nine and four ninety six [apparently a reference to the burglary and receiving stolen property counts], found not guilty by reason of insanity on both of those.” The court asked the People if they wanted to “dismiss the two misdemeanors?” The People replied in the affirmative and the court ordered the charged “misdemeanors . . . dismissed upon motion of the district attorney’s office.”
On August 5, 1997, the court ordered Haner “placed at Atascadero State Hospital for treatment for his mental illness.” The court stated that the “maximum period for residential burglary” is six years and sentenced Haner to “his maximum period of confinement at Atascadero State Hospital:” six years. The court requested that the People prepare the “appropriate order” for signature.
An order of commitment pursuant to section 1026 was filed on August 28, 1997. In this commitment order, the court reiterated Haner’s plea as to residential burglary (§ 459) and receiving stolen property (§ 496, subd. (a)) and its finding of not guilty by reason of insanity. The court then ordered that Haner be “committed to Atascadero State Hospital for care and treatment as a mentally disordered person as provided in Section 1026 of the Penal Code of the State of California, for a maximum term of six (6) years.” ~(Exh. B)~
On September 23, 1998, thirteen months after the commitment order was filed, and well after the time for appealing the judgment had passed, a member of the legal section of the Napa State Hospital contacted the trial court and asked that the court “clarify the six-year term in relation to the specific offenses for which Mr. Haner was found NGI [not guilty by reason of insanity], and including disposition of the charges in the Information which lists a prior serious conviction and a prior strike conviction in addition to Counts I and II.” The letter also noted that “[n]o mention of pre-commitment custody credit was made in the commitment order.”
On January 28, 1999, the court held a hearing on this letter request. Defendant was present and represented by counsel. At the hearing the court told the defendant’s counsel: ‘I don’t know what happened. I committed Mr. Haner to Napa State Hospital, and I don’t know whether it was myself or the district attorney’s office or whatever, but we miscalculated his maximum period of time that he could be kept at Napa State Hospital. The period of time in the minute order I guess was six years . . . .” The court asked the People how much defendant’s “actual time” was and the People responded that it was 17 years.
Apparently unfamiliar with defendant’s case, defense counsel responded to the court’s question about the nature of defendant’s earlier plea by asking the People whether his client “pled NGI as to the entire information and was found NGI as to the entire information?” The People stated, “yes, that’s what my notes indicate.”
Defense counsel then calculated defendant’s sentence as follows: “Well I can see that the maximum period of Mr. Haner’s exposure would have been six years for Count I, doubled. Count II would go out 654. Five years for the prior serious felony so it is a total of 17 years so I’d submit the issue.”
The trial court stated: “All right. The Court then corrects its earlier order that the maximum period of confinement in this case for the defendant is as stated by [the People and defense attorney]. And that maximum period of confinement is 17 years as calculated.” The court then directed the district attorney’s office “to prepare an order for this Court’s signature recalculating the maximum period of confinement . . . .”
The court issued an amended commitment order on February 2, 1999, increasing defendant’s maximum term of commitment to 17 years.
More than seven years after the trial court increased defendant’s maximum period of confinement, on August 9, 2007, defendant filed, in pro per, a “Request for Court to Recalculate Sentence and to Immediately and . . . Unconditionally Release Defendant From all Forms of Actual and Constructive Custody.” In this request, defendant argued that the trial court was without jurisdiction or acted in excess of its jurisdiction when it increased his sentence at the January 28, 1999, resentencing hearing. He also stated that he was not informed that he “could appeal the adverse modification of his sentence . . . .”
Defendant’s motion was summarily denied on August 14, 2007, and this appeal was timely filed on August 27, 2007.
III. DISCUSSION
A. Amended Commitment Order
The People and defendant agree that the trial court erred when it increased defendant’s sentence at the January 28, 1999, resentencing hearing. They part company, however, on the appropriate remedy for this error, a disagreement that is due to their analysis of the nature of the error committed by the trial court.
According to the People, the trial court erred in resentencing the defendant because (1) the prior conviction and strike allegations were never admitted by defendant, either at the original sentencing hearing or at the resentencing hearing held on January 28, 1999; and (2) the People did not, at either of these hearings, submit to the court any “prison records or other documentary evidence related to the prior serious felony conviction or strike.” The People argue that the appropriate remedy is to remand the matter to the trial court for a trial on the prior serious felony conviction and strike allegations.
Defendant argues that the People abandoned their allegations regarding the felony prior conviction and strike by failing to present evidence on these allegations at the original sentencing hearing. Defendant further argues that, once the trial court filed a commitment order, it no longer had jurisdiction to increase his sentence. Defendant contends that, for the same reason, the trial court does not have jurisdiction to resentence him on remand. We agree.
In People v. Karaman (1992) 4 Cal.4th 335, 344, our Supreme Court explained that “[u]nder the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. [Citations.] Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant.” The “execution of a judgment of conviction is the process of carrying the judgment into effect.” (Id. at p. 344.) “The commitment document is the order remanding the defendant to prison and is ‘“the process and authority for carrying the judgment and sentence into effect.”’ [Citations.]’” (Ibid.)
On August 28, 1997, a commitment order pursuant to section 1026 was filed. Under this order, defendant was committed to Atascadero State Hospital. Once this commitment document was filed, the trial court lost jurisdiction to resentence defendant to a longer term.
The court does retain the limited authority under section 1170, subdivision (d) to “within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, 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.” (Holder v. Superior Court (1970) 1 Cal.3d 779, 783.)
The People, relying entirely on People v. Bryant (1992) 10 Cal.App.4th 1584, 1598, contend that it is appropriate to remand this matter to the trial court. Bryant, however, is inapplicable. In that case, the defendant entered no contest pleas to a variety of charges and also “purportedly admitted all special allegations.” After the trial court sentenced the defendant, he filed a timely appeal challenging the trial court’s calculation of his sentence and the manner in which he admitted the special allegations. (Id. at p. 1590.) The Bryant court held that the trial court erred in failing to take proper admissions from the defendant as to the special allegations, and remanded the matter for the trial court to correct this error. (Id. at p. 1598.)
The People incorrectly characterize Bryant as giving this court the authority to remand this matter to the trial court to conduct a second sentencing hearing. In Bryant, the court remanded following defendant’s successful appeal of the original sentence. Here, in contrast, no such appeal of defendant’s original sentence was ever filed. The time to do so has long since passed. The court does not have jurisdiction to reconsider its commitment order.
An order of commitment, such as the one issued by the court in this case, is an appealable order. (People v. Somerset (1984) 159 Cal.App.3d 1124, 1126, fn. 3, citing § 1237, subd. 1; People v. Wetmore (1978) 22 Cal.3d 318, 323; People v. Vanley (1974) 41 Cal.App.3d 846, 848, fn. 1.) The People’s remedy for any error the court might have made at the original sentencing hearing was to file an appeal. They did not do so, and the sentence in this matter has long been final. For this reason, we do not address the trial court’s original failure to make a true finding on the prior felony conviction and strike allegations and the question of whether this failure amounts, as defendant argues, to a “not true finding.” (See People v. Gutierrez (1993) 14 Cal.App.4th 1425.)
The remaining issue on appeal is one the parties refer to tangentially, which is the question of whether defendant has waived the right to challenge the trial court’s order re-sentencing him to a longer term, which is, essentially, the order he challenges in this matter. Defendant has not waived such a challenge. “[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court’s jurisdiction in the fundamental sense is null and void. Therefore, a claim based on a lack of a fundamental jurisdictional may be raised for the first time on appeal.” (People v. Chadd (1981) 28 Cal.3d 739, 757.)” (People v. Williams (1999) 77 Cal.App.4th 436, 447.)
V. DISPOSITION
The trial court’s amended commitment order filed on February 2, 1999, is vacated. This matter is remanded to the trial court for reinstatement of the court’s original commitment order and any other proceedings not inconsistent with this opinion, including proceedings to determine whether defendant is still in need of mental health treatment.
We concur: Lambden, J., Richman, J.