Filed 6/1/22 P. v. Mitchell CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from postjudgment orders of the Superior Court of Los Angeles County, Katherine Mader and Jeffrey Cohen-Laurie, Judges. Dismissed.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

_____________________________________

On July 22, 2021, the trial court denied defendant Michael Mitchell’s petition to designate his felony conviction as a misdemeanor conviction pursuant to Penal Code[1] section 1170.18, subdivisions (a) and (f), on the grounds that defendant was not eligible for such a reduction because he had a disqualifying “Super Strike” conviction for attempted murder on a peace officer with a machine gun.

On August 10, 2021, defendant filed a “MOTION FOR RECONSIDERATION OF DENIED APPLICATION/PETITION FOR RESENTENCING P[U]RSUANT TO . . . SECTION 1170.18[, SUBDIVISIONS] (A) AND (F) DENIED ON 7-22-21.” Defendant contended that he had not been convicted of using a machine gun but had instead been convicted of using a semiautomatic weapon in connection with his various crimes.

On November 19, 2021, the trial court denied defendant’s petition on the grounds that he was not eligible for the relief he sought. Defendant had prior convictions for assault on a peace officer (§ 245, subd. (d)(2)), with an enhancement for use of a semiautomatic weapon (§ 12022.5, subd. (a)) and attempted murder (§§ 664, 187), with an enhancement for use of a firearm (§ 12022.5, subd. (a)).

On December 21, 2021, defendant filed a notice of appeal stating that he appealed from the following order or judgment: “7-22-21/MOTION FOR RECONSIDERATION HEARING DATE 11-19-21 (FINAL JUDGMENT).”

Appointed counsel filed a brief in this matter. Counsel argued that “f the [trial] court had jurisdiction to accept [defendant’s second section 1170.18 petition] after the initial one was denied for a reason that [defendant] could show was erroneous, then the denial of the petition would be appealable . . . .” Counsel conceded, however, that a defendant may not appeal from the denial of a motion for reconsideration “on a ground which could have been reviewed on appeal from the judgment.” ([i]People v. Thomas (1959) 52 Cal.2d 521, 527.) Counsel requested that if this court were to conclude that defendant’s appeal was justiciable, we follow the procedure set forth in People v. Serrano (2012) 211 Cal.App.4th 496.

Defendant filed a supplemental brief. He requested that his appointed counsel be relieved and that we appoint new counsel to him. We deny that request. Next, defendant contended that he appealed from both the trial court’s denial of his motion for reconsideration and the court’s July 22, 2021, denial of this section 1170.18 petition. Defendant’s appeal from the July 22, 2021, order, however, was untimely filed. (Cal. Rules of Court, rule 8.308(a).) And, defendant’s appeal from the court’s denial of his motion for reconsideration must be dismissed as having been taken from a nonappealable order. (People v. Durham (1969) 70 Cal.2d 171, 176, fn. 1.) We therefore dismiss defendant’s appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P.J.

MOOR, J.

[1] Further statutory references are to the Penal Code.