1

Filed 3/20/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Appellant,

v.

JESSE LIN ANTOLIN,

Defendant and Respondent.

 A147075

 (San Mateo County

 Super. Ct. No. SC073522A)

In 2013, defendant Jesse Lin Antolin was sentenced to an 11 year term in county 

jail. In 2015, the trial court granted his motion to recall the sentence and modify it to a 

―split sentence,‖ with the remaining unserved time to be spent on mandatory 

supervision.1 The People appeal, arguing the trial court lacked the authority to modify 

the sentence. We agree and hold that after the execution of defendant‘s sentence for a 

term in county jail pursuant to the Realignment Act had begun, the trial court lacked 

jurisdiction to modify the sentence.

BACKGROUND

 

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of part II.

1

―A split sentence is a hybrid sentence in which a trial court suspends execution of a 

portion of the term and releases the defendant into the community under the mandatory 

supervision of the county probation department. Such sentences are imposed pursuant to 

Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part 

of the  ̳2011 Realignment Legislation addressing public safety.‘ (Criminal Justice 

Realignment Act of 2011 (Realignment Act), operative Oct. 1, 2011, as added by Stats. 

2011, 1st Ex. Sess. 2011–2012, ch. 12, § 1.)‖ (People v. Camp (2015) 233 Cal.App.4th 

461, 464, fn. 1 (Camp).)
2

A jury convicted defendant of possession of methamphetamine for sale (Health & 

Saf. Code, § 11378), and the trial court found defendant had three prior narcotics sales 

convictions (Health & Saf. Code, § 11370.2, subd. (c)).2In 2013, the trial court 

sentenced defendant to 11 years in county jail pursuant to former Penal Code section 

1170, subdivision (h)(5)(A).3In January 2015, this court affirmed the judgment. 

In August 2015, defendant filed a motion to recall his sentence and modify it to 

provide he serve the remaining term on mandatory supervision, to permit him to complete 

his sentence in a residential drug treatment program. Over the People‘s opposition, the 

trial court granted the motion and modified defendant‘s sentence, ordering an 11-year

split sentence with the period of mandatory supervision to begin that day. The People 

appealed.4

DISCUSSION

I. Authority to Modify Sentence

The People argue the trial court lacked the authority to recall and modify 

defendant‘s sentence. We agree.

―Under the general common law rule, a trial court is deprived of jurisdiction to 

resentence a criminal defendant once execution of the sentence has commenced.[5] 

 

2

The underlying facts are not relevant to this appeal.

3 All undesignated section references are to the Penal Code. Although section 1170, 

subdivision (h)(5)(A) currently provides trial courts shall impose split sentences unless 

not in the interests of justice, this provision took effect after defendant‘s sentencing. 

(Stats. 2014, ch. 26, § 16; § 1170, subd. (h)(7) [amendment effective Jan. 1, 2015 and 

applies prospectively only].)

4

The order is appealable by the People as ―[a]n order made after judgment, affecting the 

substantial rights of the people.‖ (§ 1238, subd. (a)(5); see also Camp, supra, 233 

Cal.App.4th at p. 466, fn. 7.)

5

There are certain exceptions to this rule, none of which are present here. (See People v. 

Amaya (2015) 239 Cal.App.4th 379, 384–386 [listing exceptions].) Defendant suggests 

this common law rule applies only to state prison sentences. We disagree, as it has been 

applied to sentences of fines only (People v. McAllister (1940) 15 Cal.2d 519) and to 

sentences to county jail (People v. Thomas (1959) 52 Cal.2d 521).
3

[Citations.] Where the trial court relinquishes custody of a defendant, it also loses 

jurisdiction over that defendant. [Citation.] If, however, the trial court  ̳retains in itself 

the actual or constructive custody of the defendant and the execution of his sentence has 

not begun,‘ the court may vacate and modify the sentence.‖ (People v. Karaman (1992) 

4 Cal.4th 335, 344 (Karaman).) ―As long as the trial court retains in itself the actual or 

constructive custody of the defendant and the execution of his sentence has not begun, it 

retains jurisdiction over the defendant and the res of the action . . . .‖ (In re Black (1967) 

66 Cal.2d 881, 888.)

Defendant does not dispute that the execution of his 2013 sentence had begun, as 

he had served some years of the sentence at the time it was modified.

6 He argues, 

however, that the common law rule that jurisdiction is lost upon execution of the sentence 

does not apply to sentences imposed pursuant to the Realignment Act because the 

Realignment Act‘s ―sentencing framework is a  ̳wholly statutory‘ creation of very recent 

origin.‖ We disagree. 

As an initial matter, that a sentencing framework is ―wholly statutory‖ cannot be 

dispositive of the matter. The Determinate Sentencing Law is ―wholly statutory,‖ but 

there is no dispute that the common law rule regarding jurisdiction to modify sentences 

applies to state prison sentences imposed pursuant to this statutory scheme, except to the 

extent that a statute specifically provides otherwise. (See Dix v. Superior Court (1991) 

53 Cal.3d 442, 455 (Dix) [―Section 1170(d) was enacted in 1976 as part of the 

 

6

―In a criminal case, the execution of a judgment of conviction is the process of carrying 

the judgment into effect. [Citation.] The manner of executing a judgment sentencing a 

defendant to imprisonment is prescribed by the Penal Code.‖ (Karaman, supra, 4 Cal.4th 

at p. 344, fn. omitted.) The Penal Code provides where, as here, ―the judgment is for 

. . . imprisonment pursuant to subdivision (h) of Section 1170, either a copy of the minute 

order or an abstract of the judgment . . . shall be forthwith furnished to the officer whose 

duty it is to execute the . . . judgment, and no other warrant or authority is necessary to 

justify or require its execution.‖ (§ 1213, subd. (a); see also Karaman, at p. 345 [for 

judgment to state prison, ―  ̳at least upon the receipt of the abstract of the judgment by the 

sheriff, the execution of the judgment is in progress‘ ‖].)
4

Determinate Sentencing Act‖ and ―is an exception to the common law rule that the court 

loses resentencing jurisdiction once execution of sentence has begun.‖].) 

Instead, ―  ̳[a]s a general rule, ―[u]nless expressly provided, statutes should not be 

interpreted to alter the common law, and should be construed to avoid conflict with 

common law rules. [Citation.]  ̳A statute will be construed in light of common law 

decisions, unless its language ―  ̳clearly and unequivocally discloses an intention to 

depart from, alter, or abrogate the common-law rule concerning the particular subject 

matter . . . .‘ [Citations.]‖ [Citation.]‘ ‖ [Citation.] Accordingly, ―[t]here is a 

presumption that a statute does not, by implication, repeal the common law. [Citation.] 

Repeal by implication is recognized only where there is no rational basis for harmonizing 

two potentially conflicting laws.‖ ‘ ‖ (People v. Ceja (2010) 49 Cal.4th 1, 10 (Ceja).)

Defendant relies heavily on Camp, in which the defendant was sentenced to a split 

sentence under the Realignment Act. (Camp, supra, 233 Cal.App.4th at p. 465.) At the 

conclusion of the county jail term, probation officials learned Camp was to be deported 

upon his release from jail and would therefore be unavailable for mandatory supervision. 

(Ibid.) The trial court terminated Camp‘s mandatory supervision and modified his 

sentence to omit the mandatory supervision term. (Id. at p. 466.) The Court of Appeal 

rejected the People‘s argument that the trial court lacked authority to modify the sentence 

after its execution had begun pursuant to the common law rule discussed above. (Id. at 

p. 470–471.) Defendant argues this analysis suggests the trial court here had authority to 

modify his sentence.

There are significant differences in the Realignment Act between split sentences

and straight sentences to county jail, however. At the time of defendant‘s 2013 

sentencing, a Realignment Act sentence could be either ―[f]or a full term in custody [in 

county jail] as determined in accordance with the applicable sentencing law,‖ or ―[f]or a 

term as determined in accordance with the applicable sentencing law, but suspend 

execution of a concluding portion of the term‖ which shall be served on mandatory 

supervision. (Former § 1170, subd. (h)(5)(A)-(B), italics added.) When a defendant is 

serving the jail portion of a split sentence, therefore, execution of the concluding portion 
5

of the jail term has not yet begun and the common law rule would not deprive the trial 

court of jurisdiction (at least as to the concluding portion of the sentence). Moreover, the 

Penal Code explicitly provides that trial courts retain jurisdiction to modify the 

mandatory supervision term. Section 1170, subdivision (h)(5)(B) provides: ―The period 

of supervision shall be mandatory, and may not be earlier terminated except by court 

order.‖ (Italics added.) Section 1203.3, subdivision (a) provides: ―The court shall also 

have the authority at any time during the term of mandatory supervision . . . to revoke, 

modify, or change the conditions of the court’s order suspending the execution of the 

concluding portion of the supervised person’s term.‖ (Italics added.) 

In other words, as to the mandatory supervision portion of a split sentence, there 

are statutes that ―  ̳ ―  ̳ ―  ̳clearly and unequivocally disclose[] an intention to depart from, 

alter, or abrogate the common-law rule . . . .‘ ‖ ‘ ‖ ‘ ‖ (Ceja, supra, 49 Cal.4th at p. 10.) 

In contrast, at the time of defendant‘s sentencing, there were no statutes authorizing 

modification of a straight county jail Realignment Act sentence after its execution had 

begun. (See Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2016) ¶ 11:14 [―it 

does not appear the court has any authority to modify a straight sentence imposed under 

section 1170(h)(5),‖ noting that in the statutes authorizing modification of mandatory 

supervision, ―[n]o mention is made of straight sentences under section 1170(h)(5)(A)‖].)

People v. Howard (1997) 16 Cal.4th 1081 (Howard) supports this analysis. In 

Howard, the Supreme Court held when a trial court imposes a sentence but suspends 

execution to grant probation, then subsequently revokes probation, the court lacks 

authority to modify the sentence. (Id. at p. 1084.) This limitation on trial courts‘ 

authority was imposed by statute, which controlled the issue despite the common law 

rule, expressed in Karaman, that a trial court retains jurisdiction to modify a sentence 

before its execution has begun: ―Unlike the situation in Karaman, to which common law 

rules applied regarding retention of sentencing jurisdiction over the defendant, the 

authority to grant probation and to suspend imposition or execution of sentence is wholly 

statutory. . . . [¶] Our main purpose in Karaman was to address a situation that no statute 

directly controlled . . . . [Karaman] did not change the long-standing statutory rule that, 
6

when a court revokes probation, canceling the suspension of a previously imposed 

sentence necessarily puts that sentence into  ̳full force and effect.‘ ‖ (Howard, at 

pp. 1092–1093.) Unlike the situation in Howard, at the time of defendant‘s sentencing 

no statute governed the trial court‘s retention of jurisdiction over straight county jail 

Realignment Act sentences. In the absence of any such statute, the common law governs 

and provides the trial court lost jurisdiction to modify the sentence after execution had 

begun. (Ceja, supra, 49 Cal.4th at p. 10.) 

As the parties note, section 1170, subdivision (d) has since been amended to 

authorize trial courts to recall Realignment Act sentences within 120 days. The former 

statute provided, ―When a defendant subject to this section . . . has been sentenced to be 

imprisoned in the state prison and has been committed to the custody of the secretary, the 

court may, within 120 days of the date of commitment on its own motion, . . . 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.‖ (Former § 1170, subd. (d)(1).) Effective 

January 1, 2016, the amended statute applies also to a defendant who ―has been sentenced 

to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has 

been committed to the custody of the secretary or the county correctional administrator.‖ 

(§ 1170, subd. (d)(1), italics added.)7

We agree with the People that the legislative history of this amendment supports

our conclusion that, prior to the amendment, a trial court had no authority to modify a 

straight county jail Realignment Act sentence after its execution had begun. ―Section 

1170(d) is an exception to the common law rule that the court loses resentencing 

jurisdiction once execution of sentence has begun.‖ (Dix, supra, 53 Cal.3d at p. 455.) 

The Legislative Counsel‘s Digest to the bill enacting the amendment explains: ―Existing 

law authorizes a court to recall a sentence of imprisonment in the state prison and to 

 

7 Defendant appears to concede that, had the amended statute been in effect at the time of 

his sentencing, the trial court would have lacked the authority to modify his sentence

after 120 days.
7

resentence a defendant in the same manner as if the defendant had not previously been 

sentenced . . . . [¶] This bill would similarly authorize the court to recall a sentence of 

imprisonment in a county jail for a felony . . . .‖ (Legis. Counsel‘s Dig., Assem. Bill No. 

1156 (2015-2016 Reg. Sess.), italics added.) The statement that the bill will ―authorize‖ 

a trial court to resentence a defendant suggests the trial court previously lacked any such 

authority.

Finally, defendant argues that the common law rule was not violated here because 

the trial court did not alter the overall length of the sentence, but merely changed it from 

a straight county jail term to a split sentence. Under the common law rule, a trial court 

loses jurisdiction over a defendant when the execution of sentence begins. Defendant 

does not explain how a trial court could nonetheless retain jurisdiction to modify the form 

of the sentence, and he cites no authority to support such a construction of the common 

law rule. (See Karaman, supra, 4 Cal.4th at p. 350 [objective of common law rule is 

―obtaining finality in legal proceedings‖].) Because the trial court lost jurisdiction over 

defendant when execution of his county jail sentence began, the court lacked authority to 

modify the sentence by converting it to a split sentence.

II. Sentence on Remand

Defendant argues that, if this court concludes the trial court lacked authority to 

modify his sentence, returning him to custody would be unjust. 

In People v. Tanner (1979) 24 Cal.3d 514 (Tanner), after holding the defendant‘s 

grant of probation was unauthorized, the Supreme Court concluded: ―Mr. Tanner having 

complied with his conditions of probation—including one year‘s stay in county jail—we 

determine a second incarceration would be unjust.‖ (Id. at p. 522.)8 Such an outcome is 

only warranted when three circumstances are present: ―The mistake in the original grant 

 

8 Although our Supreme Court has since questioned Tanner’s viability, it has not been 

overturned. (People v. Clancey (2013) 56 Cal.4th 562, 586 [―We . . . find it unnecessary 

here to decide whether Tanner remains good law.‖]; People v. Statum (2002) 28 Cal.4th 

682, 697, fn. 5 [―Even if Tanner remains good law, defendant cannot satisfy this test.‖].)

Consequently, we follow it. 
8

of probation must have arisen from an uncertainty in the law reasonably giving rise to the 

trial court‘s erroneous disposition‖; ―the defendant ha[s] served or complied with the 

terms of probation, and that in reliance thereon he shall have returned to a law-abiding 

and productive life‖; and, ―because of unusual circumstances generating some unique 

element of sympathy for the defendant‘s plight, returning him to jail would be more than 

usually painful or  ̳unfair.‘ ‖ (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1759

(Lockridge).)

Although the parties ask us to determine whether defendant satisfies this three-part 

test, the record before us is insufficient to do so. The first requirement is obviously met;

as in Lockridge, our decision to publish this opinion reflects our conclusion no published 

case has expressly resolved this question. (Lockridge, supra, 12 Cal.App.4th at p. 1760.) 

We express no opinion on the second and third requirements, and conclude they are more 

appropriately considered in the first instance by the trial court.9 

DISPOSITION

The order modifying defendant‘s sentence is reversed and the matter is remanded 

for further proceedings not inconsistent with this opinion.

 

9

The People concede that, if defendant is returned to jail, he is entitled to actual credit for 

his time spent on mandatory supervision. 
9

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

(A147075)
10
11

Superior Court of San Mateo County, No. SC073522A, Hon. Mark R. Forcum, Judge.

Jonathan Soglin and Jeremy Price, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bridget 

Billeter, Deputy Attorney General, for Plaintiff and Respondent.