Fear Not Law Articles: P. v. Foster

P. v. Foster

Filed 5/6/08 P. v. Foster CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

RICKY TYRONE FOSTER,

Defendant and Appellant.

F054991

(Super. Ct. No. 499134-5)

O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pena, Judge.

Ricky Tyrone Foster, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

On February 13, 2008, appellant, Ricky T. Foster, filed an ex parte motion in the Fresno County Superior Court requesting the court to recall his 1994 convictions for carjacking Pen. Code, 215, subd. (a), count one)^{^[1]}; assault with a firearm ( 245, subd. (a)(2), count two); kidnapping during the commission of a carjacking ( 209.5, subd. (a), count three); kidnapping ( 207, subd. (a), count four [acquitted on count four]); kidnapping for robbery ( 209, subd. (b), count five); and robbery ( 211, 212.5, subd. (b), count six). On February 28, 2008, the trial court denied the ex parte motion requesting recall of sentence on the ground the court was without jurisdiction to recall the commitment which occurred over 14 years ago: the 120-day limit set forth in section 1170, subdivision (d)^{^[2]}had long since passed and appellant has no standing to make a motion to recall the remittitur pursuant section 1170.

On March 28, 2008, appellant filed a notice of appeal from the trial courts February 28, 2008, order denying relief. On April 3, 2008, this court issued a briefing order directing appellant to address (1) whether the denial of his motion to recall sentence is an appealable order, and (2) should the appeal be dismissed.

DISCUSSION

Penal Code section 1237 provides: An appeal may be taken by the defendant: [] (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial. [] (b) From any order made after judgment, affecting the substantial rights of the party.

The trial court properly ruled that it did not have jurisdiction to modify appellants sentence. Section 1170, subdivision (d), permits recall of a sentence only on the trial courts own motion within 120 days of commitment or upon recommendation of the Director of Corrections or the Board of Prison Terms. Neither of these events occurred. Appellant moved to recall his sentence on his own behalf. Consequently, the denial of the order did not affect the substantial rights of defendant so as to render it appealable under section 1237.

DISPOSITION

The appeal is dismissed.

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^*Before Levy, Acting P.J., Hill, J., and Kane, J.

^{^[1]} All further statutory references are to the Penal Code, unless otherwise indicated.

^{^[2]} Section 1170, subdivision (d) provides: When a defendant subject to this section or subdivision (b) of Section 1168 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, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, 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. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.

Description	On February 13, 2008, appellant, Ricky T. Foster, filed an ex parte motion in the Fresno County Superior Court requesting the court to recall his 1994 convictions for carjacking Pen. Code, 215, subd. (a), count one)[1]; assault with a firearm ( 245, subd. (a)(2), count two); kidnapping during the commission of a carjacking ( 209.5, subd. (a), count three); kidnapping ( 207, subd. (a), count four [acquitted on count four]); kidnapping for robbery ( 209, subd. (b), count five); and robbery ( 211, 212.5, subd. (b), count six). On February 28, 2008, the trial court denied the ex parte motion requesting recall of sentence on the ground the court was without jurisdiction to recall the commitment which occurred over 14 years ago: the 120-day limit set forth in section 1170, subdivision (d)[ had long since passed and appellant has no standing to make a motion to recall the remittitur pursuant section 1170. On March 28, 2008, appellant filed a notice of appeal from the trial courts February 28, 2008, order denying relief. On April 3, 2008, this court issued a briefing order directing appellant to address (1) whether the denial of his motion to recall sentence is an appealable order, and (2) should the appeal be dismissed. The appeal is dismissed.
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