P. v. Hernandez
Filed 3/6/07 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. MOISES HERNANDEZ, Defendant and Appellant. | F050765 (Super. Ct. No. 02CM2258) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Jerry Brown, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
Appellant, Moises Hernandez, was convicted of second degree murder (Pen. Code, 187, subd. (a))[1]with a gang enhancement ( 186.22, subd. (b)((1)). On September 3, 2003, this court issued its opinion in case F041897 remanding the matter to the trial court for resentencing and directing the trial court to strike the 10-year gang enhancement it imposed. On November 20, 2003, the trial court sentenced appellant to an indeterminate term of 15 years to life.
On June 9, 2006, Hernandez filed a motion to modify his sentence by striking the $5,000 restitution fine imposed at his initial sentencing hearing on November 8, 2002, alleging that the court did not consider his ability to pay.
On July 19, 2006, the court denied Hernandezs motion.
Hernandezs appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Alternatively, appellate counsel asks this court to deem his motion in the superior court to have been a petition for writ of habeas corpus and Hernandezs appellate brief to be a petition for writ of habeas corpus challenging the denial of said petition in the trial court.
For the reasons discussed below, we will dismiss Hernandezs appeal without prejudice to him filing a petition for a writ of habeas corpus in the trial court.
Section 1237 permits a defendant to appeal in two circumstances: (1) from a final judgment of conviction; or (2) from any order made after judgment which affects the substantial rights of the party.[2]
Section 1170, subd. (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 Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, 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.
Here, the courts denial of Hernandezs motion clearly was not a final judgment. Further, since more that 120 days passed from the date of Hernandezs resentencing on November 19, 2003, under the plain language of section 1170, subdivision (d), the court was without jurisdiction to recall the sentence it imposed including the restitution fine. Thus, in view of the courts lack of jurisdiction to entertain Hernandezs motion, its order denying the motion was not an appealable order because it did not affect Hernandezs substantial rights. (Cf. People v. Chlad (1992) 6 Cal.App.4th 1719, 1725 [defendants substantial rights not affected by trial courts denial of motion to recall sentence filed after 120-day limitation under section 1170, subdivision (d) had expired because trial courts was without jurisdiction to consider motion].) Accordingly, we will dismiss Hernandezs appeal.
DISPOSITION
Hernandezs motion to deem the motion he filed in superior court a petition for writ of habeas corpus is denied as is his motion to deem his opening brief a petition for writ of habeas corpus in this court. Hernandezs appeal is dismissed without prejudice to him filing a petition for writ of habeas corpus in the trial court.
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*Before Harris, Acting P.J., Cornell, J., and Kane, J.
[1] All further statutory references are to the Penal Code.
[2] 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.
