Tag Archives: Appealability

Appellate Principles, Jurisdiction, Sentencing

Case 000077

Posted on by Gary McCurdy

Error and/or relief

[Gary note: this is an unusual case because the defendant was allowed to appeal from a denial of his request to be resentenced under section 1172.1, a statute that specifically states “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.” But there was an unusual scenario in the trial court that turned it into an appealable order.]

The appellate court affirmed the denial of the request for resentencing. The defendant appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.1. For the reasons discussed in the opinion, the appellate court found that the trial court’s order was appealable in this instance. However, it concluded that the trial court did not abuse its discretion in declining to recall and resentence the defendant and affirm the order denying the defendants petition.

First Holding:

The steps taken by the court in this instance, mirroring those it would take had the petition been submitted by an entity with the right to submit a petition for recall (appointment of counsel, holding of a contested hearing, and the merits-based comments denying the request), affected the defendant’s substantial rights, and in this instance, the order is appealable.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375 [noting that even if a defendant does not have the right to petition for relief, he does have the right to invite the court to exercise its power to do so and may raise a trial court’s failure to do so on appeal]

Second Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Third Holding:

Ordinarily, the defendant has no right to appeal from either inaction by the court on or its denial of a defendant’s invitation to recall the sentence under section 1172.1.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985

People v. Faustinos (2025) 109 Cal.App.5th 687

People v. Raoy (2025) 110 Cal.App.5th 991

People v. Brinson (2025) 112 Cal.App.5th 1040

Fourth Holding:

While a defendant may invite the court to recall the sentence under PC 1170.1, the defendant has no right to petition for recall under section 1170.1, and the court is not required to respond to such an invitation or to consider the request at all.

Authority:

PEN 1172.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Fifth Holding:

An appellate court has an independent obligation to assure itself of its own jurisdiction.

Authority:

Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 291

Appellate Principles

Case 000019

Posted on by Gary McCurdy

Error and/or relief

(GARY Note: There is not much discussion in this case. Benoit relief was granted on a petition for writ of habeas corpus seeking a finding that the notice of appeal was deemed constructively filed timely. That process is potentially available to a defendant whose notice of appeal was NOT filed with the 60 days (for a felony, 30 days for a misdemeanor), if certain conditions exist.

(The conditions are:(a) the defendant has been incarcerated during the entire period that a notice of appeal may be filed; (b) during that period the defendant requested that the attorney file one (or the attorney has otherwise conveyed to the defendant that the attorney will file the notice of appeal); and (c) the attorney failed to timely file the notice of appeal. The defendant may file a petition for writ of habeas corpus in the appellate court and ask that the court deem the notice of appeal to have been constructively filed timely. Although not discussed in this case,

(Benoit relief is generally NOT granted if the defendant was NOT in custody the entire 60 days, OR if the defendant did not ask the attorney within that 60 days to file a notice of appeal. Other than the reference to the Benoit case, the opinion does not contain any authority. I have added the two pertinent rules from the Rules of Court and a few case citations, none of which appears in the opinion, but I think it’s valuable to understand the importance of meeting that jurisdictional requirement.)

First Holding:

Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding:

In felony cases, the notice of appeal must be filed within 60 days. In appeals from guilty pleas, any required certificate of probable cause must also be filed within 60 days. No court may extend the time to file a notice of appeal.

Authority:

Rules of Court rule 8.308

Third Holding:

In misdemeanor appeals, the notice must be filed within 30 days.

Authority:

Rules of Court rule 8.393

Fourth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion. [Gary note: Under Benoit, for an incarcerated person who, within that 60-day period, attempts to get the notice of appeal filed, a court that grants relief technically deems that the notice of appeal was constructively filed timely. Under that legal sense, it is not considered a late notice of appeal. In effect, the court is treating the timely attempts by the incarcerated defendant as the “functional equivalent”–MY description, NOT a court’s description–of filing a notice of appeal.]

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094

Discretion, Jurisdiction, Sentencing

Case 000009

Posted on by Gary McCurdy

Error and/or relief

The defendant invited the trial court to recall his sentence under Penal Code section 1170.1. The court appointed counsel and set a hearing date, but concluded at hearing (with the defendant not being present) that no one-year priors were ever alleged [possibly conflating the request with a motion for resentencing under section 1172.5, which does pertain to resentencing on cases that had certain now-invalid prior prison term enhancements but is unrelated to an invitation for recall of a sentence under section 1170.1] and determined that he was not eligible for resentencing under 1172.1. Reversed.

First Holding:

By taking action on a purported motion that defendant did not make, it conferred jurisdiction on the Court of Appeal to rectify the error.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Second Holding:

A defendant is not entitled to file a petition seeking relief from the court under section 1170.1. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1170.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Third Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Fourth Holding:

It is an abuse of discretion when a court applies improper criteria or an incorrect legal standard to decide an issue.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573