Shepeard

Gary Lee Shepeard (appellant) appeals from the Contra Costa County Superior Court order refusing to recall and resentence him after a hearing conducted pursuant to Penal Code section 1170, subdivision (f)-

On March 27, 1981, after negotiations with the prosecutor, appellant pled guilty in one information to count I, possession of methamphetamine for sale (Health & Saf. Code, § 11378) and count II, possession of a concealable firearm by an ex-felon (Pen. Code, § 12021), and in another information to two counts of possession of a firearm by an ex-felon.

In open court the prosecutor announced the terms of the plea agreement as follows: Appellant would plead guilty to the above four counts and two pending related felony charges (§ 246—discharging a firearm in an inhabited dwelling and § 12021—possession of a firearm by an ex-felon), and several pending unrelated misdemeanor charges would all be dismissed. Appellant agreed to accept a maximum sentence of four years and four months (fifty-two months).

*583 Pursuant to the plea and sentence negotiations, appellant was sentenced on the first information (case No. 24925) to the upper term of three years on count I and to a…

I concur in the judgment of this court which consists of the determination in part I that the trial court did not err in refusing to recall the sentence it had previously imposed on appellant. I do not join, however, any of the discussion in part II of the lead opinion; part II is logically inconsistent with part I and with the judgment of this court.

In part II, my colleagues find it “unnecessary” to decide what they have necessarily determined in the holding of part I: namely, that the trial court had subject matter jurisdiction over the task which we three praise it for exercising so well in part I. I submit you cannot have it both ways; either the trial court had jurisdiction to review the sentence it previously imposed, or it did not. By reviewing the trial court’s action on the allegedly disparate sentence, my colleagues and I have answered the jurisdictional question in the affirmative: (1) the trial court had jurisdiction under Penal Code section 1170, subdivision (a) 1 to review the sentence it imposed in light of the Board of Prison Terms’ determination that the sentence was disparate; and (2) the trial court, in exercising that jurisdiction, did so properly.

A…

Gary Lee Shepeard (appellant) appeals from the Contra Costa County Superior Court order refusing to recall and resentence him after a hearing conducted pursuant to Penal Code section 1170, subdivision (f). [1]

On March 27, 1981, after negotiations with the prosecutor, appellant pled guilty in one information to count I, possession of methamphetamine for sale (Health & Saf. Code, § 11378) and count II, possession of a concealable firearm by an ex-felon (Pen. Code, § 12021), and in another information to two counts of possession of a firearm by an ex-felon.

In open court the prosecutor announced the terms of the plea agreement as follows: Appellant would plead guilty to the above four counts and two pending related felony charges (§ 246 — discharging a firearm in an inhabited dwelling and § 12021 — possession of a firearm by an ex-felon), and several pending unrelated misdemeanor charges would all be dismissed. Appellant agreed to accept a maximum sentence of four years and four months (fifty-two months). [2]

Pursuant to the plea and sentence negotiations, appellant was sentenced on the first information (case No. 24925) to the upper term of three years…