Filed 5/10/16 P. v. Jones CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                     F071204

         v.                                                              (Super. Ct. No. 95CM1285)

FORREST LEE JONES,
                                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Kings County. Thomas
DeSantos, Judge.
         Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J., and Franson, J.
                             STATEMENT OF THE CASE
       On August 28, 1995, appellant Forrest Lee Jones was sentenced in Kings County
Superior Court to a term of 25 years to life in state prison in accordance with Penal Code
sections 667, subdivision (e)(2)(A)(ii) and 1170.12, subdivision (c)(2)(A)(ii).
       On December 24, 2014, appellant filed a motion requesting a diagnostic study be
prepared by the California Department of Corrections and Rehabilitation (CDCR)
pursuant to Penal Code Section 1170(d).1 Appellant recognized he had no standing to
move to recall his sentence pursuant to Penal Code section 1170, subdivision (d). In his
motion, however, appellant requested that the trial court ask the CDCR to prepare a
diagnostic study recommending a recall of commitment pursuant to California Code of
Regulations, title 15, section 3076, which provides in pertinent part:

              “(a) The Secretary, or designee, may recommend at any time to the
       sentencing court the recall of an inmate’s commitment pursuant to Penal Code
       section 1170(d), if the inmate is not sentenced to death, for one or more of the
       following reasons:

               “(1) It is evident from the inmate’s exceptional behavior that is so
       extraordinary beyond simply complying with all regulations and procedures
       during incarceration that they have changed as a person and would be a positive
       asset to the community.




1       Penal Code section 1170, subdivision (d) provides in pertinent part: “When a
defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to
be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county correctional administrator, the
court may, 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 in the case of
state prison inmates, or the county correctional administrator in the case of county jail
inmates, 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.”


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              “(2) Information which was not made available to the court in pronouncing
       the inmate's sentence is brought to the attention of the Secretary, who deems the
       information would have influenced the sentence imposed by the court.

               “(3) The Secretary deems that circumstances have changed to the extent
       that the inmate’s continued incarceration is not in the interest of justice.”
       Petitioner asserted that he had demonstrated exceptional behavior over the past
20 years of his incarceration.
       On February 25, 2015, the Kings County Superior Court denied the motion,
finding that it lacked authority to recall and modify appellant’s sentence under Penal
Code section 1170, subdivision (d). It also ruled that there was “no good cause for
directing the preparation of [a] post-sentence diagnostic report by the California
Department of Corrections and Rehabilitation at this time.”
       Appellant filed a notice of appeal from the denial of the motion for a diagnostic
study by the CDCR on March 12, 2015. By a letter dated May 29, 2015, appellate
counsel informed appellant that the denial of his request for sentence modification
pursuant to Penal Code section 1170, subdivision (d) is a nonappealable order.
According to the appellant’s handwritten notation on the copy of the letter filed with this
court, appellant asked this court to make a copy of the notice of appeal and refile it as a
petition for writ of habeas corpus. The notation further states “Deem Forrest
motion/petition to the Superior Court.”
                                      DISCUSSION
       The denial of appellant’s request to the superior court to order a postdiagnostic
report is not an appealable order. Appellant does not have the right to such an order, and
denial of the same is not an order made after judgment affecting his substantial rights.
(Pen. Code, § 1237, (subd. (b).) The appeal is therefore dismissed.




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       Appellant’s request to treat the notice of appeal as a petition for writ of habeas
corpus is denied without prejudice to appellant seeking extraordinary relief in the Kings
County Superior Court, if appropriate.
                                      DISPOSITION
       The appeal is dismissed as having been taken from a nonappealable order.
Appellant’s request that the notice of appeal be treated as a petition for writ of habeas
corpus is denied.




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