Tooby's California Post-Conviction Relief for Immigrants

While a habeas corpus petition challenging a void or unauthorized sentence is always proper,[125] the trial court also retains jurisdiction to correct a sentence that is unauthorized, which is completely or partially void, even if a notice of appeal has been filed.[126]  The sentencing court itself may correct a sentence that is void on its face even if an appeal is pending.[127]  When a sentence has been declared void, the court can impose a more severe correct sentence.[128] 

[125] C.E.B., § 38.34.

[126] C.E.B. § 39.34; California Criminal Defense Practice, supra, § 91.13[2]; see In re Sandel (1966) 64 Cal.2d 412, 418, 50 Cal.Rptr. 462 (prosecution); People v. Chagolla (1983) 144 Cal.App.3d 422, 434, 193 Cal.Rptr. 711 (enhancement was attached to incorrect count; properly corrected by trial court after filing of notice of appeal); C.E.B., § 38.34.

[127] People v. Serrato (1973) 9 Cal.3d 753, 109 Cal.Rptr. 65; People v. Calhoun (1977) 72 Cal.App.3d 494, 140 Cal.Rptr. 225.

[128] People v. Brown (1987) 193 Cal.App.3d 957, 961, 238 Cal.Rptr. 697; People v. Grimble (1981) 116 Cal.App.3d 678, 685, 172 Cal.Rptr. 362.