Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kings County, No. 03CM3281, Lynne C. Atkinson, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Cornell, A.P.J., Gomes, J., and Dawson, J.
On December 15, 2003, appellant, LeRoy Tate, Jr., was convicted of second degree murder (Pen. Code, § 187, subd. (a)) and allegations that he had a prior conviction within the meaning of the three strikes law were found true (§ 667, subds. (b)-(i)). On January 14, 2004, the court sentenced Tate to an indeterminate term of 30 years to life and ordered him to pay a restitution fine of $6,000.
All further statutory references are to the Penal Code.
On August 26, 2009, Tate filed a motion for modification of sentence alleging that the court improperly imposed a $6,000 fine because it did not consider his ability to pay and asking the court to reduce the fine to the statutory minimum of $200.
On August 28, 2009, the court issued an order denying Tate’s motion.
Tate’s 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.) Tate has not responded to this court’s invitation to submit additional briefing.
Section 1237 allows a defendant to appeal from “a final judgment of conviction” (§ 1237, subd. (a)) and “any order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b).)
Section 1170, subdivision (d) allows the court “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[.]” (Italics added.)
“Section 1170 subdivision (d) does not confer standing on a defendant to initiate a motion to recall a sentence. Instead, that section permits a court to recall a sentence ‘on its own motion.’” (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.) “Consequently, the courts have uniformly held that an order denying a defendant’s request to resentence pursuant to section 1170 subdivision (d) is not appealable as an order affecting the substantial rights of the party. This is because the defendant has no right to request such an order in the first instance; consequently, his ‘substantial rights’ cannot be affected by an order denying that which he had no right to request. [Citations.]” (Id. at p. 194.) In accord with Pritchett, we conclude that the order denying Tate’s motion to reduce his restitution fine was not an appealable order. Moreover, since more than 120 days had passed since Tate was sentenced, the court did not have jurisdiction to recall his sentence and this provides an additional basis for rejecting Tate’s appeal. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1205.)
In Turrin, the court also held that when a defendant appeals from a postjudgment order that is not appealable, the appeal should be dismissed. (People v. Turrin, supra, 176 Cal.App.4th at p. 1208.) We agree.
DISPOSITION
The appeal is dismissed.