Filed 2/15/18




                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

 THE PEOPLE,
                                                                  F075158
          Plaintiff and Respondent,
                                                     (Fresno Super. Ct. No. F14902059)
                  v.

 JOHN RAY DYNES,                                                OPINION
          Defendant and Appellant.



        APPEAL from an order of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
        Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Xavier Becerra, Attorney General, and Max Feinstat, Deputy Attorney General,
for Plaintiff and Respondent.
                                        -ooOoo-
                                   INTRODUCTION
       Defendant John Ray Dynes sent a request to the Superior Court of Fresno County
regarding his potential eligibility for resentencing under Proposition 57. The court
denied his request, and he filed this appeal. We dismiss the appeal because of the
absence of an appealable order.
                              PROCEDURAL HISTORY
       On December 19, 2013, defendant pleaded guilty to second degree robbery in case
No. F13907336 (Pen. Code, § 211); the record implies that he also admitted three prior
prison term enhancements (Pen. Code, § 667.5, subd. (b)).
       On March 4, 2014, a felony complaint was filed in case No. F14902059, charging
defendant with count I, carrying a concealed dirk or dagger (Pen. Code, § 21310); and
count II, misdemeanor giving false information to a police officer (Pen. Code, § 148.9,
subd. (a)), with one prior strike conviction and six prior prison term enhancements.
       On April 3, 2014, defendant pleaded no contest in case No. F14902059 to count I,
carrying a concealed dirk or dagger, and admitted one prior strike conviction. The court
granted the prosecution’s motion to dismiss count II and the six prior prison term
enhancements.
Sentencing
       Also on April 3, 2014, the court sentenced defendant in both case
Nos. F013907336 and F14902059. The court denied defendant’s request to dismiss the
prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497.
       The court imposed an aggregate second strike term of eight years four months as
follows: the lower term of two years, doubled to four years for second degree robbery
(case No. F13907336); a consecutive term of eight months (one-third the midterm),
doubled to 16 months for carrying a concealed dirk or dagger (case No. F14902059); and
three consecutive one-year terms for the prior prison term enhancements.

                                            2.
Proposition 57
       On November 8, 2016, the voters passed Proposition 57, also known as “The
Public Safety and Rehabilitation Act of 2016,” and it took effect the following day.
Among its provisions, Proposition 57 added section 32 to article I of the California
Constitution. (Cal. Const., art 1, § 32, added by initiative, Gen. Elec. (Nov. 8, 2016),
commonly known as Prop. 57 (hereafter “section 32”).)
       Section 32 states in its entirety:

       “(a) The following provisions are hereby enacted to enhance public safety,
       improve rehabilitation, and avoid the release of prisoners by federal court
       order, notwithstanding anything in this article or any other provision of law:

       “(1) Parole Consideration: Any person convicted of a nonviolent felony
       offense and sentenced to state prison shall be eligible for parole
       consideration after completing the full term for his or her primary offense.

       “(A) For purposes of this section only, the full term for the primary offense
       means the longest term of imprisonment imposed by the court for any
       offense, excluding the imposition of an enhancement, consecutive sentence,
       or alternative sentence.

       “(2) Credit Earning: The Department of Corrections and Rehabilitation
       shall have authority to award credits earned for good behavior and
       approved rehabilitative or educational achievements.

       “(b) The Department of Corrections and Rehabilitation shall adopt
       regulations in furtherance of these provisions, and the Secretary of the
       Department of Corrections and Rehabilitation shall certify that these
       regulations protect and enhance public safety.” (Italics added.)
The court’s denial of defendant’s ex-parte request for relief
       On or about December 20, 2016, defendant sent a letter to the superior court and
asked for a list of all the violent felony charges that had been changed to nonviolent
offenses under Proposition 57, and whether that included second degree robbery.
       On February 1, 2017, the superior court filed an order that treated defendant’s
letter as an ex-parte request for resentencing, modification of sentence, reclassification, or



                                              3.
recalculation of credits pursuant to Proposition 57. The court reviewed the entirety of
section 32, as set forth above, and denied defendant’s request for relief:

              “This Constitutional Amendment directs that the California
       Department of Corrections is to adopt regulations to implement the early
       parole eligibility provision, as well as the credit earning provision. The
       amendment did not authorize the trial courts to entertain or grant motions
       for resentencing, reclassification of a commitment offense, or for the
       recalculation of custody credits. Instead it allows for the California
       Department of Corrections and Rehabilitation to consider for early parole
       any state prisoner serving a prison term for a nonviolent felony ‘after
       completing the full term for his or her primary offense.’

               “As the Act does not provide for the recall and resentencing of any
       state prisoner, the reclassification of a commitment offense or for a
       recalculation of custody credits, the ex-parte application for relief is denied.

             “Defendant must instead seek relief through the California
       Department of Corrections and Rehabilitation, once it has adopted the
       necessary regulations to implement the Act.”
Appellate briefing
       On February 14, 2017, defendant filed a notice of appeal of the court’s order
denying his ex-parte request for resentencing, modification, and reclassification under
Proposition 57. He requested a certificate of probable cause from the superior court; that
request was not ruled upon.
       This court requested the parties to address whether the superior court’s order was
an appealable order. In response, appointed appellate counsel asked this court for
guidance on the issue of appealability; if the order was deemed appealable, counsel stated
that he would file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and ask this
court to independently review the record.
       The People argue Proposition 57 does not provide for resentencing, the superior
court did not have authority to modify defendant’s sentence, the court’s order denying
defendant’s request was not appealable, and this appeal should be dismissed.



                                              4.
                                       DISCUSSION
       “ ‘It is settled that the right of appeal is statutory and that a judgment or order is
not appealable unless expressly made so by statute.’ [Citation.]” (People v. Mazurette
(2001) 24 Cal.4th 789, 792; Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) “[A]
criminal appeal by the defendant may be taken only from ‘a final judgment of conviction’
[citations] or from ‘any order made after judgment, affecting the substantial rights’ of the
party [citations].” (People v. Gallardo (2000) 77 Cal.App.4th 971, 980; Pen. Code,
§ 1237.)
       Section 32, as enacted by Proposition 57, authorizes the California Department of
Corrections and Rehabilitation (CDCR) to adopt regulations in furtherance of its
resentencing provisions. In contrast to resentencing initiatives, section 32 did not create
or authorize “a substantial right to be resentenced” or provide “a remedy by way of a
statutory postjudgment motion” for an inmate to file a petition with the superior court for
recall or resentencing in the first instance. (See, e.g., Teal v. Superior Court, supra, 60
Cal.4th at p. 598; § 1170.126 [Prop. 36]; § 1170.18 [Prop. 47].)
       In this case, the superior court’s order that denied defendant’s ex-parte request did
not involve a final judgment of conviction. It also did not affect defendant’s substantial
rights since the court lacked jurisdiction to modify his sentence in the first instance under
section 32. “ ‘[G]enerally a trial court lacks jurisdiction to resentence a criminal
defendant after execution of sentence has begun. [Citation.]’ [Citations.] There are few
exceptions to the rule.” (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204.) No such
exception exists at the initial stage of the proceedings for an inmate to request relief
under section 32. Instead, defendant must do so through CDCR once it has adopted the
necessary regulations to implement section 32.
       The superior court lacked jurisdiction to grant defendant’s request for relief under
section 32. Therefore, the court’s order denying defendant’s ex-parte request for relief is
not an appealable order, and we dismiss this appeal. (See, e.g., People v. Turrin, supra,

                                               5.
176 Cal.App.4th at p. 1208; People v. Mendez (2012) 209 Cal.App.4th 32, 34; People v.
Chlad (1992) 6 Cal.App.4th 1719, 1725–1726.)
                                   DISPOSITION
      The appeal is dismissed.



                                                             _____________________
                                                             POOCHIGIAN, J.
WE CONCUR:


______________________
HILL, P.J.


______________________
DETJEN, J.




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