Filed 4/14/23 P. v. Livingston CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTURUS LEVELL 

LIVINGSTON,

Defendant and Appellant.

 B320053

 (Los Angeles County 

 Super. Ct. No. TA146007)

APPEAL from an order of the Superior Court of 

Los Angeles County, Lynn D. Olson, Judge. Dismissed.

Pensanti & Associates and Louisa Pensanti, for 

Defendant and Appellant.
2

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle and Rene

Judkiewicz, Deputy Attorneys General, for Plaintiff and 

Respondent.

_______________________________________________

INTRODUCTION

Generally, once judgment in a criminal case is

rendered and execution of a sentence begins, trial courts lack 

jurisdiction to vacate or modify a sentence. (People v. King 

(2022) 77 Cal.App.5th 629, 634 (King).) And this court 

generally lacks jurisdiction to consider appeals from a trial 

court’s denial of a request to vacate or modify a final 

sentence. (Ibid.) Of course, exceptions apply, notably when 

the Legislature has created a specific statutory avenue that 

allows a defendant to seek resentencing. (Ibid.) 

In this case, all parties agree that at some point in the 

future, appellant Arturus Levell Livingston will likely be 

able to use a statutory avenue to modify his sentence. But 

his time to do so has not yet come. The trial court lacked 

jurisdiction to consider Livingston’s motion for sentencing 

relief. We lack jurisdiction to consider an appeal of the 

court’s order dismissing his motion. Accordingly, we dismiss 

this appeal.
3

BACKGROUND

In 2018, Livingston pled no contest to selling, 

transporting, or offering to sell a controlled substance under 

Health and Safety Code section 11352, subdivision (a). He 

admitted that his offense was gang-related for purposes of 

former Penal Code section 186.22, subdivision (b)(1)(A), and

that he had suffered a prior prison term for purposes of 

former Penal Code section 667.5, subdivision (b).

1 Pursuant 

to the parties’ plea agreement, the trial court sentenced 

Livingston to 10 years in state prison. His sentence included

the upper term of five years, plus a four-year gang 

enhancement and a one-year prior prison term 

enhancement. Livingston began serving his sentence 

immediately after his sentencing. 

In 2022, Livingston moved to strike his two

enhancements, based on recent changes enacted by the 

Legislature. He invoked Assembly Bill No. 333 (2021–2022 

Reg. Sess.; Stats. 2021, ch. 699, §§ 1–5), which amended the

gang-enhancement scheme. He also invoked newly enacted

section 1172.75, which retroactively invalidated certain prior 

person term enhancements, including Livingston’s.

2

The People opposed Livingston’s motion. As to the 

gang enhancement, the People argued it could not be 

1 Undesignated statutory references are to the Penal Code.

2 At the time of the proceedings below, current section 

1172.75 was numbered section 1171.1. For simplicity, we refer 

only to section 1172.75.
4

stricken because Livingston’s judgment was still final and 

had not been opened for resentencing. As to the prior prison 

term enhancement, the People agreed that Livingston would 

ultimately be entitled to relief under section 1172.5. 

However, the People argued that the enhancement could not 

be stricken at that time. The People noted that although 

section 1172.75 established a procedure that would 

ultimately result in resentencing Livingston, that procedure 

had specific time limits and procedures, and had not been 

initiated because the California Department of Corrections 

and Rehabilitation (CDCR) had not yet provided the court 

with information regarding Livingston, as required by

section 1172.75, subdivision (b). 

At an April 2022 hearing on Livingston’s motion, the

trial court stated that his motion was “premature” because

the CDCR had not yet provided the necessary information 

regarding Livingston. Although the trial court anticipated 

ultimately resentencing Livingston, it concluded that it was 

too early to do so at the time of Livingston’s motion.

Accordingly, after the hearing, the court dismissed 

Livingston’s motion without prejudice. Livingston filed a 

notice of appeal, invoking section 1237, subdivision (b). 

DISCUSSION

We conclude this court lacks jurisdiction over 

Livingston’s appeal because the trial court’s order dismissing 

Livingston’s motion was nonappealable. 
5

Section 1237, subdivision (b), the provision Livingston

uses to invoke our appellate jurisdiction, makes postjudgment orders that affect a criminal defendant’s 

substantial rights appealable. (§ 1237, subd. (b).) But postjudgment orders denying motions to vacate or modify a 

sentence are, at least ordinarily, not appealable under this 

statutory section. 

“The general rule is that ‘once a judgment is rendered 

and execution of the sentence has begun, the trial court does 

not have jurisdiction to vacate or modify the sentence.’ 

[Citations.]” (King, supra, 77 Cal.App.5th at 634.) And, if 

the trial court does not have jurisdiction to rule on a motion 

to vacate or modify a sentence, an order denying such a 

motion does not (by definition) affect the defendant’s 

substantial rights. (King, supra, at 634, 639.) Such an order

is not appealable, and any appeal from such an order must 

be dismissed. (Ibid.)

The jurisdictional rule that bars trial courts from 

modifying a final sentence is subject to exceptions. For 

example, a trial court retains jurisdiction to resentence a 

defendant pursuant to “specific statutory avenues” that 

permit certain incarcerated defendants to seek resentencing. 

(King, supra, 77 Cal.App.5th at 637.) Section 1172.75 is one 

such potential avenue. Section 1172.75, subdivision (a), 

declares legally invalid any one-year prior prison term 

enhancement under prior section 667.5, subdivision (b), that 

was imposed before January 2020 and was not based on a 

sexually violent offense. 
6

However, section 1172.75 has statutory prerequisites 

that apply before resentencing begins. Subdivisions (b) and 

(c) of section 1172.75 establish a two-step resentencing 

procedure for every incarcerated defendant subject to a 

newly invalid enhancement. First, no later than July 1, 

2022, the Secretary of the CDCR and the county correctional 

administrator of each county were required to identify each 

such defendant in their custody and to provide identifying 

information about the defendant and the defendant’s case to

the sentencing court that imposed the enhancement. 

(§ 1172.75, subd. (b).) Second, “[u]pon receiving the 

information described in subdivision (b), the court shall 

review the judgment and verify that the current judgment 

includes a sentencing enhancement described in subdivision 

(a). If the court determines that the current judgment 

includes an enhancement described in subdivision (a), the 

court shall recall the sentence and resentence the 

defendant.” (§ 1172.75, subd. (c).) The court’s review and 

resentencing must be completed no later than December 31, 

2023 (or earlier for defendants who have already served 

their base terms and any other enhancements). (Ibid.) 

Notably, section 1172.75 does not provide that 

resentencing pursuant to its terms can take place outside of 

this statutorily imposed process. Section 1172.75 does not 

contemplate relief initiated by a defendant’s request, via 

motion or otherwise. (See People v. Burgess (2022) 86 

Cal.App.5th 375, 384 (Burgess) [“any review and verification 

by the court in advance of resentencing is only triggered by 
7

receipt of the necessary information from the CDCR 

Secretary or a county correctional administrator, not by any 

individual defendant. (§ 1172.75, subds. (b)–(c).) Thus, 

section 1172.75 simply does not contemplate resentencing 

relief initiated by any individual defendant’s petition or 

motion”].)

Applied here, this law compels dismissal of 

Livingston’s appeal.3 Livingston’s judgment was rendered 

and its execution began in 2018, long before Livingston filed 

his motion for sentencing relief. Thus, the trial court lacked 

jurisdiction to recall Livingston’s sentence at the time it 

denied his motion, and we lack jurisdiction to hear an appeal 

from the denial of that motion. (King, supra, 77 Cal.App.5th 

at 634.) To be sure, Livingston may, and likely will, be 

entitled to have his sentence recalled and be resentenced

pursuant to section 1172.75—once the statutory 

prerequisites have been complied with and the information 

from the CDCR is received. At that time, he may be entitled 

to resentencing, and to the striking of one or both of the 

enhancements that he challenges. But that has not 

happened yet. As the trial court found, Livingston is not 

entitled to initiate the section 1172.75 process and recall his 

sentence on his own motion, in advance of the process 

contemplated by statute. (See Burgess, supra, 86 

3 In a letter to the parties’ counsel, we invited supplemental 

briefs addressing whether this appeal should be dismissed for 

lack of jurisdiction because the trial court’s order was 

nonappealable. We received no response from Livingston. 
8

Cal.App.5th at 384.) Without a statutory or other avenue to 

recall his sentence, the trial court lacked jurisdiction to hear 

Livingston’s motion, and we lack jurisdiction to hear the 

appeal.

Livingston asserts that during the pendency of this 

appeal, the CDCR has provided the necessary information to 

the trial court, implying that the section 1172.75 

prerequisites have now been complied with and the trial 

court would now have jurisdiction over his motion. But that 

is not the issue before us. We are asked only to review the 

trial court’s order denying Livingston’s motion. (See In re 

Zeth S. (2003) 31 Cal.4th 396, 405 [“‘an appeal reviews the 

correctness of a judgment as of the time of its rendition, 

upon a record of matters which were before the trial court for 

its consideration’”].) It is undisputed that when the trial 

court denied Livingston’s motion, the CDCR had not 

triggered the process for Livingston’s resentencing. The trial 

court was therefore without jurisdiction to consider it at that 

time. 
9

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

DAUM, J. *

We concur: 

COLLINS, J.

CURREY, Acting P.J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to Article VI, section 6, of the California 

Constitution.