Filed 8/24/20 P. v. Wilburn CA2/1
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


 THE PEOPLE,                                                   B301902

           Plaintiff and Respondent,                           (Los Angeles County
                                                               Super. Ct. No. BA137387)
           v.

 ANTHONY WILBURN,

           Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County, Richard S. Kemalyan, Judge. Appeal
dismissed.
      Milena N. Blake and Michael S. Romano for Defendant and
Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Nima Razfar, Deputy Attorneys
General, for Plaintiff and Respondent.
                             ____________________________
      In July 1997, Defendant Anthony Wilburn was convicted of
one count of false imprisonment of a hostage, two counts of
assault with a firearm, and two counts of terrorist threats, and
was sentenced to 28 years to life in prison. Nearly 22 years later,
the secretary of the California Department of Corrections and
Rehabilitation (CDCR) sent a letter to the trial court
recommending that Wilburn’s sentence be recalled and that he be
resentenced to a shorter term pursuant to Penal Code1
section 1170, subdivision (d)(1).2




      1   Undesignated statutory citations are to the Penal Code.
      2  Section 1170, subdivision (d)(1) provides in pertinent
part: “When a defendant subject to this section . . . has been
sentenced to be imprisoned in the state prison . . . and has been
committed to the custody of the secretary[,] . . . the court may, . . .
at any time upon the recommendation of the secretary . . . recall
the sentence and commitment previously ordered and resentence
the defendant in the same manner as if they had not previously
been sentenced, provided the new sentence, if any, is no greater
than the initial sentence. . . . The court resentencing under this
paragraph may reduce a defendant’s term of imprisonment and
modify the judgment, including a judgment entered after a plea
agreement, if it is in the interest of justice. The court may
consider postconviction factors, including, but not limited to, the
inmate’s disciplinary record and record of rehabilitation while
incarcerated, evidence that reflects whether age, time served, and
diminished physical condition, if any, have reduced the inmate’s
risk for future violence, and evidence that reflects that
circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no
longer in the interest of justice. Credit shall be given for time
served.” (See § 1170, subd. (d)(1).)




                                      2
       The trial court summarily denied the recommendation on
May 13, 2019. On July 18, 2019, Wilburn and the District
Attorney filed a joint request to reopen the case and allow the
trial court to consider “[Wilburn’s] background materials used by
the [CDCR] to arrive at the release recommendation.” On
September 17, 2019, the trial court denied the joint request. On
October 17, 2019, Wilburn appealed that ruling.
       On appeal, Wilburn contends the trial court violated his
due process rights by rejecting the CDCR secretary’s
recommendation without first holding a formal hearing. The
People counter that we lack jurisdiction because the order
denying the joint request is not an appealable order. Because
Wilburn fails to establish that the joint request was not simply a
motion seeking a new ruling on the recommendation based on the
same facts, we conclude that he has improperly sought review of
a nonappealable order. As a result, we dismiss his appeal.

      FACTUAL AND PROCEDURAL BACKGROUND
       We summarize only those facts that are relevant to this
appeal.
       On July 16, 1997, the People filed an amended information
charging Wilburn with one count of false imprisonment of a
hostage, in violation of section 210.5 (count 1); two counts of
assault with a firearm, in violation of section 245,
subdivision (a)(2) (counts 2 and 3); and two counts of terrorist
threats, in violation of section 422 (counts 4 and 5). A jury later
found Wilburn guilty on all five counts. On July 24, 1997, the
trial court sentenced Wilburn to an aggregate prison term of
28 years to life on count 1, and stayed the sentence on the
remaining counts pursuant to section 654.




                                    3
       Ralph M. Diaz, the CDCR secretary, later sent a two-page
letter dated April 9, 2019 to the trial court, which recommended
that Wilburn’s sentence be recalled and that he be resentenced
pursuant to section 1170, subdivision (d)(1) (recommendation
letter).
       In support of his recommendation, Secretary Diaz stated
the following: “Inmate Wilburn has received two Rules Violation
Reports, since being received to CDCR [sic] on November 5, 1997.
However, he has remained disciplinary free since
February 9, 2001. Inmate Wilburn is currently assigned to the
Dining Room as a Line Server. Wilburn was previously assigned
to Adult Basic Education from December 3, 2013 to
March 1, 2019. Inmate Wilburn participates in Alcoholics
Anonymous and has also attended and completed a vast array
courses [sic] in other Self-Help Programs. During his
incarceration, Inmate Wilburn has taken full advantage of the
opportunities available in order to better prepare himself for a
release back into society. There are no [sic] active or potential
holds, warrants, or detainers.”
       In the concluding paragraph of the recommendation letter,
Secretary Diaz stated: “Having reviewed the enclosed
documentation it appears that [I]nmate Wilburn’s sentence
warrants the attention of the court.” The following four
enclosures are listed below the secretary’s signature
line: “Abstract of Judgment[,] [¶] Minute Order[,] [¶] Court
Information-Charging Documents[, and] [¶] Cumulative Case
Summary.” Although the abstract of judgment and the operative
information appear elsewhere in the clerk’s transcript (but are
not attached to the recommendation letter that is included in
that transcript), the secretary’s correspondence does not clarify




                                   4
which minute order is referenced therein, and the “Cumulative
Case Summary” is not in the record before us.
       On May 13, 2019, the trial court issued a minute order,
wherein the court observed it had received the recommendation
letter, and the court stated that upon having “reviewed and
considered the matter,” it decided to “take no further action” at
that time.
       On May 16, 2019, Wilburn’s counsel filed a notice of
appearance and a motion for a case management conference.3
Wilburn’s motion sought “a case management conference with
the Court and District Attorney to discuss CDCR’s
recommendation and, if necessary, set a briefing and hearing
schedule for the matter.”
       On May 22, 2019, the trial court issued another minute
order. The court noted that upon reviewing the CDCR secretary’s
correspondence and the attachments thereto, the court had
issued a ruling on May 13, 2019 “that no further judicial action
would be taken” at that time. The court further stated that on
May 16, 2019, it received Wilburn’s counsel’s notice of
appearance and motion for a case management conference. It
then remarked that “[t]he decision under . . . section 1170(d) is a
discretionary matter with the court” and that “[t]he prior order
remain[ed] and no further judicial action w[ould] be taken at
th[at] time.” The court concluded the May 22, 2019 order by
explaining that the ruling “[was] provided as a courtesy to all
counsel and Mr. Wilburn.”

      3  It appears that Wilburn’s attorneys had submitted the
notice of appearance and the motion for a case management
conference for filing before the court had issued the May 13, 2019
order.




                                   5
      On July 18, 2019, Wilburn and the Los Angeles County
District Attorney’s Office filed a “Joint Request to Reopen Case
and to Submit Supplemental Documents Pursuant to Cal.
Penal Code § 1170(d)” (joint request). The joint request asked
that “this case be reopened to permit [Wilburn] to lodge
documents to [sic] the Court pursuant to . . . section 1170(d)(1).”
In particular, the parties “request[ed] the opportunity for
[Wilburn] to present [Wilburn’s] background materials used by
the [CDCR] to arrive at the release recommendation.”4 The joint
request noted that it did not “reflect the District Attorney’s
position on the merits of the case,” but instead “reflect[ed] only
[the] District Attorney’s agreement that the Court have the
opportunity to review [Wilburn’s] background materials used by
the [CDCR] to arrive at the release recommendation.” (Boldface
& underscoring omitted.)
      On September 17, 2019, the trial court denied the joint
request (September 17, 2019 order). The court stated that it
previously declined to accept the recommendation of the CDCR
secretary after reviewing the court file for this case, the
recommendation letter, and a 20-page document titled
“ ‘Cumulative Case Summary Evaluation Report Pursuant to the

      4  Although the first page of the joint request sought an
order “reopen[ing the case] to permit [Wilburn] to lodge
documents,” the second page stated: “After reviewing the
background information materials used by the [CDCR] to arrive
at the release recommendation, it will be up to the Court to
determine whether he would like the case to be reopened.” (Italics
added.) In any event, it is apparent that the parties to the joint
request desired to have the trial court once again consider
whether Wilburn’s sentence should be recalled so that he could be
resentenced pursuant to section 1170, subdivision (d)(1).




                                    6
Provisions of Penal Code 1170 (d)’ ” that was attached to the
letter. The court found that “[n]othing in the materials provided
by the Secretary establish any particularly exemplary conduct by
the inmate” and “there is no necessity for a hearing or submission
of additional documents.” It also concluded that a ruling on a
recommendation to recall a sentence under section 1170,
subdivision (d)(1) is “purely discretionary with the Court and
there is no provision in the statute for a hearing, or resubmission
of documents.”
       On October 17, 2019, Wilburn appealed the
September 17, 2019 order.

                          DISCUSSION
      On appeal, Wilburn contends that the trial court violated
his due process rights by rejecting the CDCR secretary’s
recommendation without first affording Wilburn an opportunity
to be heard and present evidence at a formal hearing. Before we
may consider the merits of Wilburn’s claim of error, we must first
decide whether we have the jurisdiction to do so. (See In re
Mario C. (2004) 124 Cal.App.4th 1303, 1307 (Mario C.) [“[A]
reviewing court is ‘without jurisdiction to consider an appeal from
a nonappealable order, and has the duty to dismiss such an
appeal upon its own motion. [Citations.]’ [Citation.] [¶] The
fundamental rule governing the appealability of orders is that ‘ “a
judgment or order is not appealable unless expressly made so by
statute.” [Citations.]’ [Citations.]”].)
      The People claim that the September 17, 2019 order is a
nonappealable ruling on a motion for reconsideration.5

      5 In his reply, Wilburn cites People v. Castillo (2010)
49 Cal.4th 145, 154, for the proposition that the People are



                                    7
At bottom, the People complain that entertaining Wilburn’s
appeal would allow him to circumvent the 60-day deadline for
appealing the court’s prior ruling on the CDCR secretary’s
recommendation. (See Cal. Rules of Court, rule 8.308(a) [“[A]
notice of appeal . . . must be filed within 60 days after the
rendition of the judgment or the making of the order being
appealed.”].)6 As discussed below, we agree with the People.

“estopped from opposing [his] appeal” because the Los Angeles
County District Attorney’s Office joined his request to reopen the
case and the CDCR secretary recommended that his sentence be
recalled. Although Castillo identified the necessary elements of
judicial, equitable, and promissory estoppel, respectively, (see
Castillo, at pp. 154–156 & fns. 9–11), Wilburn does not explain
why this case satisfies each of the requirements of any of the
three estoppel doctrines discussed in Castillo. Accordingly, he
has waived these estoppel arguments. (See People v. Stanley
(1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal
argument with citation of authorities on the points made. If none
is furnished on a particular point, the court may treat it as
waived, and pass it without consideration. [Citations.]’
[Citations.]”].)
      6  In passing, Wilburn seems to argue that under California
Rules of Court, rule 8.108(e)(1), the parties’ filing of the joint
request extended the 60-day deadline for appealing the minute
order issued on May 13, 2019, a deadline that had expired on
July 12, 2019. This argument is without merit because that
provision does not apply to criminal appeals. (See id., rule 8.108
[appearing in the chapter titled “Civil Appeals”]; id., rule 8.7
[“[I]n these rules the headings of divisions, chapters, articles,
rules, and subdivisions are substantive.”]; id., rule 8.308 [rule
governing the time to appeal in a criminal case, which does not
incorporate by reference Cal. Rules of Court, rule 8.108].) Thus,
we lack jurisdiction to review the trial court’s prior order denying
the CDCR secretary’s recommendation. (See People v. Lyons



                                    8
       As a preliminary matter, Wilburn does not dispute the
People’s assertion that the September 17, 2019 order constituted
a ruling on a motion for reconsideration. In fact, he
contends that “initiating an appeal from the denial of a
motion to reconsider is an appropriate means to appeal the
underlying order . . . .” Curiously, Wilburn also claims that the
September 17, 2019 order “denied the recall request submitted by
CDCR Secretary Diaz.” Yet, the joint request denied by the
September 17, 2019 order had sought a ruling “reopen[ing]”
the case to “permit [Wilburn] to lodge documents [with] the
Court . . . .” (See also ante, fn. 4.) Hence, we treat the
September 17, 2019 order as a denial of a motion for
reconsideration. (See California Correctional Peace Officers Assn.
v. Virga (2010) 181 Cal.App.4th 30, 43 [“ ‘ “The nature of a motion
is determined by the nature of the relief sought . . . .” ’ ”].)
       Wilburn claims this order is appealable under section 1237,
which provides in pertinent part: “An appeal may be taken by
the defendant from . . . [¶] . . . [¶] . . . any order made after
judgment, affecting the substantial rights of the party.” (§ 1237,
subd. (b).)7 Notwithstanding the seemingly broad scope of this
provision, “[a]n order made after judgment is not appealable
where the motion merely ask[s] the court to repeat or overrule a


(2009) 178 Cal.App.4th 1355, 1361 [“ ‘Unless the notice [of
appeal] is actually or constructively filed within the appropriate
filing period, an appellate court is without jurisdiction to
determine the merits of the appeal and must dismiss the
appeal.’ ”].)
      7 Subdivision (a) of this statute does not apply because the
September 17, 2019 order is not “a final judgment of conviction.”
(See § 1237, subd. (a).)




                                    9
former ruling on the same facts.” (People v. Rick (1952)
112 Cal.App.2d 410, 412 (Rick); see also People v. Palmer (1942)
49 Cal.App.2d 579, 580 [“[I]t is . . . well established that an order
made after judgment is not appealable where the motion or
application merely asks the court to repeat or overrule the former
ruling on the same facts.”]; cf. People v. Orrante (1962) 201
Cal.App.2d 553, 558 [“[A]n order denying a motion to vacate a
prior judgment or order is not appealable [by the People] where
the motion merely seeks to change the former decision on the
same facts and where the grounds of the motion existed before
the entry of the original order and were available on an appeal
from such order.”], superseded on other grounds by Stats. 1986,
ch. 59, § 1.) To hold otherwise would lead to an absurd result—
i.e., it “ ‘would . . . virtually allow[ ] two appeals from the same
ruling, and would, in some cases, have the effect of extending the
time for appealing . . . .’ ” (See Palmer, at p. 580.)
         Wilburn fails to demonstrate that the joint request did not
“merely ask[ ] the court to repeat or overrule a former ruling on
the same facts.”8 (Rick, supra, 112 Cal.App.2d at p. 412, italics

      8   Although the People raised this jurisdictional defect,
Wilburn must still demonstrate that the September 17, 2019
order was appealable. (See Cal. Rules of Court, rule 8.360(a)
[“Except as provided in this rule, briefs in criminal appeals must
comply as nearly as possible with rules 8.200 and 8.204.”]; id.,
rule 8.204(a)(2)(B) [“An appellant’s opening brief [in a civil
appeal] must: . . . [¶] State that the judgment appealed from
is final, or explain why the order appealed from is appealable,”
italics added]; Good v. Miller (2013) 214 Cal.App.4th 472, 476–
477 [observing that Cal. Rules of Court, rule 8.204(a)(2)(B)
“ ‘requires an appellant to make the preliminary and
fundamental determination that the order appealed from is, in
fact, an appealable order or judgment[,]’ ” and that the failure to



                                    10
added.) The joint request sought leave to submit “background
materials used by the [CDCR] to arrive at the release
recommendation.” That filing did not further identify any of
these background materials, nor did it provide any indication
that these materials contained facts not already included in the
documents that Secretary Diaz had submitted with his letter
(e.g., the “ ‘Cumulative Case Summary Evaluation Report’ ”).
In their appellate briefing, Wilburn’s attorneys suggest they
intended to submit information that was not previously before
the court, including “security reviews, criminal risk assessments,
victims’ statements, mental health assessments, . . . performance
evaluations[,] . . . . the recommendations of several layers of
CDCR bureaucracy, . . . and consultation with the Board of
Parole Hearings . . . .” We disregard these factual assertions
because none of them is supported by any citation to the record.9


comply therewith “ ‘serves the question of appealability onto the
court’s [or respondent’s] side of the net.’ ”].)
      9  We note that Wilburn’s counsel could have moved to
augment the appellate record to include the enclosures attached
to the recommendation letter. (See Cal. Rules of Court,
rule 8.340(c) [“At any time, on motion of a party or on its own
motion, the reviewing court may order the record augmented or
corrected as provided in rule 8.155.”]; id., rule 8.155(a)(1)(A) [“At
any time, on motion of a party or its own motion, the reviewing
court may order the record augmented to include: . . . [¶] Any
document filed or lodged in the case in superior court . . . .”].)
Further, there is no apparent reason that Wilburn’s attorneys
could not have attached the “background materials” to the joint
request, in which case these materials would have been part of
the record before us. (See id., rule 8.320(d)(1)(C) [“[I]f the
defendant or the People appeal from an appealable order other
than a ruling on a motion for new trial, the normal record is



                                     11
(See People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17
[“ ‘[C]ourts will decline to consider any factual assertion
unsupported by record citation at the point where it is
asserted[.]’ ”].)
       Secretary Diaz provided the trial court with a “ ‘Cumulative
Case Summary Evaluation Report.’ ” At the time the secretary
made his recommendation, the CDCR’s regulations required that
extensive information be included in this type of report, including
(inter alia): “Active or potential holds, warrants, [and]
detainers”; “[i]nstitutional adjustment, including rules violation
reports, counseling chronos, pending disciplinary actions,
gang/disruptive group information, placement score, current
housing assignment, work and education assignments, and
participation in self-help activities”; “[t]he inmate’s post-release
plan”; “Institutional Staff Recommendation Summary”; and “[t]he
inmate’s most recent Board of Parole Hearings Parole
Consideration Report . . . .” (See Cal. Code Regis., tit. 15,
§ 3076.2, subd. (b)(2) (2018).) Thus, we cannot conclude on this
record that Wilburn had asked the court to overrule its prior
denial on the basis of any new facts.
       Wilburn nonetheless intimates that the Supreme Court’s
decision in People v. Loper (2015) 60 Cal.4th 1155, establishes
that the September 17, 2019 order is appealable. In Loper, the
CDCR secretary recommended the recall of a defendant’s


composed of: . . . [¶] A clerk’s transcript containing: [¶] . . . [¶]
Any written motion or notice of motion granted or denied by the
order appealed from, with supporting and opposing memoranda
and attachments . . . .”].) Instead, it seems that counsel would
have us rely on their unsworn representations concerning these
documents.




                                     12
sentence under section 1170, subdivision (e), which
“authorizes . . . the [trial] court to recall a previously imposed
sentence because the prisoner is now terminally ill or medically
incapacitated . . . .” (See Loper, at pp. 1158–1159.) The trial
court denied the recommendation, and the defendant appealed
that decision. (See id. at p. 1159.) Our high court held that the
Court of Appeal had jurisdiction over the defendant’s appeal
pursuant to section 1237, subdivision (b), even though
section 1170, subdivision (e) “does not specifically authorize the
[defendant] to seek recall of his sentence” in the trial court. (See
Loper, at pp. 1158, 1161.) Loper had no occasion to decide
whether the denial of a motion to reconsider the trial court’s
rejection of a recall recommendation constitutes an appealable
order under section 1237, subdivision (b). (See People v. Williams
(2005) 35 Cal.4th 817, 827 [“ ‘[A]n opinion is not authority for a
proposition not therein considered.’ ”].)
       For the foregoing reasons, we conclude that Wilburn has
sought review of a nonappealable order. We thus dismiss this
appeal for lack of jurisdiction. (See Mario C., supra,
124 Cal.App.4th at p. 1307.)




                                   13
                        DISPOSITION
     We dismiss Wilburn’s appeal of the trial court’s order
denying the joint request to reopen the case.
     NOT TO BE PUBLISHED.



                                         BENDIX, J.


We concur:



             ROTHSCHILD, P. J.



             SINANIAN, J.*




     *  Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                  14
