DISCUSSION

As an initial matter, we address whether there is an appealable order. “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.] And, ‘[i]f the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed.’” (People v. King (2022) 77 Cal.App.5th 629, 634.) “Moreover, a freestanding motion challenging an incarcerated defendant’s sentence is not a proper procedural mechanism to seek relief. A motion is not an independent remedy, but must be attached to some ongoing action. [Citation.] Thus, a defendant who wishes to challenge a sentence as unlawful

1 The trial court granted Mason’s request for a certificate of

probable cause.

3 after the defendant’s conviction is final and after the defendant has begun serving the sentence must do more than simply file a motion in the trial court making an allegation that the sentence is legally infirm.” (Id. at p. 640.) Here, Mason was sentenced in 2018, and his time to appeal had long passed. Mason’s petition did not assert a valid procedural basis for the trial court to have jurisdiction to resentence him purportedly based on a change in the law after his conviction was final. Thus, the trial court’s order denying the petition is nonappealable, and the appeal must be dismissed. However, despite it not being cited in his petition, Mason now relies on section 1172.1 to argue the trial court had jurisdiction and the resulting order is appealable. “Section 1172.1 provides authority for a trial court to recall the sentences of incarcerated defendants and resentence them under certain circumstances. Like its predecessor provisions (previously codified in [section] 1170, [subdivision] (d)(1) and [section] 1179.03, [subdivision] (a)), section 1172.1 is a statutory exception to the general rule 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.”’” (People v. Hodge (2024) 107 Cal.App.5th 985, 992 (Hodge).) “Under section 1172.1, a trial court may recall a sentence and resentence a defendant ‘at any time’ upon the recommendation of various designated correctional or law enforcement authorities. [Citation.] The trial court may also do so ‘on its own motion’ within 120 days of the date of commitment. [Citation.] Pursuant to an amendment effective January 1, 2024, a trial court now also has jurisdiction to recall a sentence and resentence a defendant on its own motion ‘at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.’” (Ibid.)

4 Notably, section 1172.1, subdivision (c), provides: “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.” On appeal, Mason contends the trial court had jurisdiction to recall and resentence him under section 1172.1. Mason argues “amendments to . . . section 186.22 constituted a change, by new statutory authority, to the sentencing laws that were applicable at the time of the original sentencing, and this brought [Mason] within the scope of” the amended section 1172.1. Mason asserts the “trial court failed to exercise its informed discretion as to whether to recall and resentence [Mason] . . . because it did not appreciate that it had the authority to recall and resentence him under” section 1172.1. Mason’s argument section 1172.1 provides a basis for an appeal is unavailing because the record does not reflect the trial court addressed section 1172.1. Mason’s petition did not rely on section 1172.1, and the trial court’s order similarly did not address section 1172.1. Instead, the trial court’s order simply responded to the arguments raised in Mason’s petition. Mason cannot now use the trial court’s purported error in failing to exercise

5 discretion under a statute not even raised in the petition as a basis for creating appealability.2

DISPOSITION

The appeal is dismissed.

MOTOIKE, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

DELANEY, J.

2 Even if we were to consider the trial court’s order to be one

denying a defendant’s request under section 1172.1, we would reach the same conclusion that the appeal must be dismissed as an appeal from a nonappealable order. Recently, an appellate court concluded “a trial court order denying or dismissing a defendant-initiated request under section 1172.1 is not appealable because the trial court had no statutory obligation to act on defendant’s request and thus the order did not affect a defendant’s substantial rights under section 1237, subdivision (b).” (People v. Roy (2025) 110 Cal.App.5th 991, 994; see also, e.g., Hodge, supra, 107 Cal.App.5th at p. 991 [“trial court’s decision not to exercise its discretion to recall [defendant’s] sentence did not affect [defendant’s] substantial rights under section 1237, subdivision (b), because the trial court had no statutory obligation to act at all on [defendant’s] request”].)

6