Filed 8/26/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE


THE PEOPLE,                            B292044

       Plaintiff and Appellant,        (Los Angeles County
                                       Super. Ct. No. VA041564)
       v.

PETER MONTELLANO,

       Defendant and Respondent.


       APPEAL from a postjudgment order of the Superior Court
of the County of Los Angeles, William C. Ryan, Judge.
Dismissed.
       Jackie Lacey, Los Angeles County District Attorney, Phyllis
C. Asayama and Matthew Brown, Deputy District Attorneys, for
Plaintiff and Appellant.
       Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Respondent.
                      I. INTRODUCTION

      The Los Angeles County District Attorney (the District
Attorney) appeals from the trial court’s postjudgment order
finding defendant Peter Montellano eligible for resentencing
under Penal Code section 1170.126, 1 the Three Strikes Reform
Act of 2012 (Proposition 36 or the Act). We conclude that the
trial court’s eligibility determination did not affect the
substantial rights of the People by altering the underlying
judgment, its enforcement, or the defendant’s relationship to it,
and the order thus was not appealable under section 1238,
subdivision (a)(5). We therefore dismiss the appeal.

    II. FACTUAL AND PROCEDURAL BACKGROUND

      In November 1994, defendant participated in the gang
murder of Raul Casillas and the attempted gang murder of
Casillas’s pregnant wife, G.C. After the victims lost their way in
East Los Angeles and unintentionally drove through defendant’s
gang territory, defendant and his fellow gang members
surrounded their car and shot into it multiple times with a
shotgun and a handgun, hitting Casillas in the head and G.C. in
multiple locations. Casillas died from his wounds, but G.C.
survived. Although the police were aware of defendant’s
involvement in the shooting and were actively trying to locate
him, he evaded arrest for over two years.
      In February 1997, while still at large on the gang shooting
case, defendant stole a car and a Bell Gardens police officer


1     All further statutory references are to the Penal Code.




                                 2
initiated a pursuit. During the pursuit, defendant drove
recklessly trying to evade the police, running stop signs and red
lights at a high rate of speed. Defendant eventually abandoned
the car and fled on foot. He was apprehended 90 minutes later,
and thereafter made several admissions to the police concerning
his guilt.
       In an information filed in the instant case (No. VA041564)
in March 1997, the District Attorney charged defendant in
count 1 with the unlawful driving or taking of a vehicle in
violation of Vehicle Code section 10851, subdivision (a) and in
count 2 with evading an officer in violation of Vehicle Code
section 2800.2. The District Attorney alleged as to count 2 that
defendant had suffered two prior strike convictions for robbery
and two prior convictions for which he served a prison term.
       In an information filed in a subsequent case (No.
BA140730) in July 1997, the District Attorney charged defendant
with the murder of Casillas in violation of section 187,
subdivision (a) and the attempted murder of G.C. in violation of
sections 664 and 187, subdivision (a).
       In July 1997, the jury in this case found defendant guilty of
unlawful driving or taking of a vehicle and evading a police
officer. Because defendant admitted that he suffered two prior
strike convictions, the trial court sentenced him under the Three
Strikes Law on count 2 to a 25-years-to-life sentence, plus an
additional two years for the two prior prison term enhancement
allegations.
       The following year, in April 1998, a jury in the gang
shooting case found defendant guilty of the murder of Casillas
and the attempted murder of G.C. The trial court ordered




                                 3
defendant’s sentence in that case to run consecutively to
defendant’s three-strike sentence in the instant case.
       On May 22, 2014, defendant petitioned in this case under
section 1170.126 for recall of his three-strike sentence on the
grounds that his third-strike felony conviction for evading an
officer under Vehicle Code section 2800.2 was not a violent or
serious felony. Following extensive briefing and several
continuances, the trial court held a hearing on the petition in
April 2018 to determine defendant’s eligibility for resentencing
and then took the matter under submission. In July 2018, the
court issued its statement of decision ruling that defendant’s so-
called “super strike” convictions for murder and attempted
murder were not disqualifying “prior convictions” under section
1170.126. The court therefore found that defendant was eligible
for resentencing under section 1170.126, subdivision (e)(3) and
advised that the matter would proceed on a later date to a
determination of whether defendant was suitable for
resentencing under section 1170.126, subdivisions (f) and (g).
       In August 2018, the District Attorney filed a notice of
appeal from the trial court’s eligibility determination. The
statement of appealability in the opening brief asserted that the
eligibility determination was appealable under section 1238,
subdivision (a)(5) as a postjudgment order that affects the
substantial rights of the People, citing People v. Superior Court
(Martinez) (2014) 225 Cal.App.4th 979 (Martinez). Defendant did
not contest appealability in the respondent’s brief.
       After the case was fully briefed, but prior to oral argument,
we sent a letter to the parties advising them to be prepared to
address at argument whether the trial court’s eligibility
determination was an appealable order under section 1238,




                                 4
subdivision (a)(5). At oral argument, the District Attorney,
relying exclusively on Martinez, supra, 225 Cal.App.4th 979,
reiterated that the eligibility determination was appealable
under section 1238, subdivision (a)(5), and defendant disagreed.

                       III. DISCUSSION

A.    Prerequisite to Appellate Jurisdiction

      “Appellate courts have jurisdiction over a direct appeal . . .
only where there is an appealable order or judgment. (Griset v.
Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [107
Cal.Rptr.2d 149, 23 P.3d 43] (Griset); Jennings v. Marralle (1994)
8 Cal.4th 121, 126 [32 Cal.Rptr.2d 275, 876 P.2d 1074] (Jennings)
[an appealable order or judgment ‘is a jurisdictional prerequisite
to an appeal’].) ‘A trial court’s order is appealable when it is
made so by statute.’ (Griset[, supra, 25 Cal.4th] at p. 696; see
Dana Point Safe Harbor Collective v. Superior Court (2010) 51
Cal.4th 1, 5 [118 Cal.Rptr.3d 571, 243 P.3d 575] [‘right to appeal
is wholly statutory’ (citing § 904.1).)” (Katzenstein v. Chabad of
Poway (2015) 237 Cal.App.4th 759, 765-766.) “A reviewing court
must raise the issue on its own initiative whenever a doubt exists
as to whether the trial court has entered a final judgment or
other order or judgment made appealable by [statute].”
(Jennings, supra, 8 Cal.4th at p. 126.)

B.    Section 1170.126 Resentencing

       The trial court’s eligibility determination was made as part
of its adjudication of defendant’s resentencing petition pursuant




                                 5
to section 1170.126. We therefore begin our appealability
analysis with a review of the statutory procedures that govern
the adjudication of such a petition in the trial court.
       Proposition 36 “amended the Three Strikes law with
respect to defendants whose current conviction is for a felony that
is neither serious nor violent. In that circumstance, unless an
exception applies, the defendant is to receive a second[-]strike
sentence of twice the term otherwise provided for the current
felony . . . . [¶] . . . [¶] In addition to reducing the sentence to be
imposed for some third[-]strike felonies that are neither violent
nor serious, [Proposition 36] provides a procedure by which some
prisoners already serving third[-]strike sentences may seek
resentencing in accordance with the new sentencing rules.
(§ 1170.126.)” (People v. Johnson (2015) 61 Cal.4th 674, 681-682.)
       “The trial court’s consideration of a [resentencing] petition
under the Act is a two-step process. First, the court determines
whether the petitioner is eligible for resentencing. If the
petitioner is eligible, the court proceeds to the second step, and
resentences the petitioner under the Act unless it determines
that to do so would pose ‘an unreasonable risk of danger to public
safety.’ (§ 1170.126, subd. (f).)” (Martinez, supra, 225
Cal.App.4th at p. 987.)

C.    Section 1238, subdivision (a)(5)

       In criminal cases, the People’s right to appeal is controlled
and limited by section 1238. “‘The prosecution’s right to appeal
in a criminal case is strictly limited by statute. [Citation.] Long-
standing authority requires adherence to these limits even
though “the People may thereby suffer a wrong without a




                                  6
remedy.” [Citation.] The circumstances allowing a People’s
appeal are enumerated in section 1238.’ (People v. Chacon (2007)
40 Cal.4th 558, 564 [53 Cal.Rptr.3d 876, 150 P.3d 755]; see People
v. Drake (1977) 19 Cal.3d 749, 754 [139 Cal.Rptr. 720, 566 P.2d
622] [‘“The Legislature has determined that except under certain
limited circumstances the People shall have no right of appeal in
criminal cases.” [Citation.] Those circumstances are enumerated
in section 1238’].) ‘“[C]ourts are precluded from so interpreting
section 1238 as to expand the People’s right of appeal into areas
other than those clearly specified by the Legislature.” [Citation.]’
(People v. McGuire (1993) 14 Cal.App.4th 687, 700-701 [18
Cal.Rptr.2d 12] . . . .)” (In re Anthony (2015) 236 Cal.App.4th
204, 211.)
        Here, the District Attorney asserts that the trial court’s
eligibility determination is “[a]n order made after judgment,
affecting the substantial rights of the [P]eople.” (§ 1238,
subd. (a)(5).) An order affects the substantial rights of the People
if it alters the judgment, its enforcement, or the defendant’s
relationship to the judgment. (People v. Benavides (2002) 99
Cal.App.4th 100, 105; see also People v. Leonard (2002) 97
Cal.App.4th 1297, 1300 [“‘[I]n order to affect the People’s
substantial rights an order “must in some way affect the
judgment or its enforcement or hamper the further prosecution of
the particular proceeding in which it is made”’”].)
        “[O]ur courts have generally held that section 1238,
subdivision (a)(5) authorizes the People to appeal orders that
affect the defendant’s sentence or the timing of his or her
release.” (In re Anthony, supra, 236 Cal.App.4th at pp. 211-212.)
Such orders include, for example: “(1) an order erroneously
granting a defendant credits against his or her prison sentence




                                 7
(People v. Minjarez (1980) 102 Cal.App.3d 309, 311-312 [162
Cal.Rptr. 292]); (2) a certificate of rehabilitation issued to a
defendant before the period of rehabilitation required by law has
been completed (Daudert v. People (1979) 94 Cal.App.3d 580, 582-
585 [156 Cal.Rptr. 640]); (3) an order granting probation (People
v. Warner (1978) 20 Cal.3d 678, 681-682 [143 Cal.Rptr. 885, 574
P.2d 1237]); (4) an order erroneously staying sentence pursuant
to section 654 (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2
[153 Cal.Rptr. 40, 591 P.2d 63]; People v. Holly (1976) 62
Cal.App.3d 797, 801-802 [133 Cal.Rptr. 331]); and (5) an order
reducing a felony to a misdemeanor (People v. Douglas (1999) 20
Cal.4th 85, 96 [82 Cal.Rptr.2d 816, 972 P.2d 151]).” (People v.
Benavides, supra, 99 Cal.App.4th at p. 104, fn. omitted.)
       In each of the foregoing examples, the postjudgment orders
found appealable under section 1238, subdivision (a)(5) shared a
common characteristic: Each had a direct and immediate impact
on either the length of the defendant’s sentence or its
enforceability.

D.    Analysis

      The District Attorney’s appealability contention is
premised exclusively on section 1238, subdivision (a)(5), as
construed by the court in Martinez, supra, 225 Cal.App.4th 979.
According to the court in Martinez, a trial court’s eligibility
determination under section 1170.126 qualifies as (1) a
postjudgment order (2) that affects the substantial rights of the
People because it necessarily “affects enforcement of the
judgment (in which the People clearly have a substantial
interest), and it affects the inmate’s status with relation to the




                                 8
judgment already imposed.” (Id. at p. 987.) Although we agree
that a trial court’s eligibility determination under section
1170.126 is a postjudgment order, we disagree with the Martinez
court’s conclusion that such a determination necessarily alters
the judgment or a defendant’s relationship to it.
       Martinez, supra, 225 Cal.App.4th 979 involved the distinct
issue of whether a trial court’s eligibility determination under
section 1170.126 was properly challenged by writ petition. The
court addressed appealability in response to the defendant’s
assertion that the writ petition in that case challenging the trial
court’s eligibility determination should be dismissed because,
“‘[a]s a general rule, the People may not seek an extraordinary
writ in circumstances where the Legislature has not provided for
an appeal.’” (Martinez, supra, 225 Cal.App.4th at p. 986, quoting
People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1008.)
Based on its view that an eligibility determination affects the
substantial rights of the People, the court in Martinez concluded
that “the People have the right to appeal the eligibility finding
under section 1238, subdivision (a)(5).” (Id. at p. 988.)
       But the court in Martinez, supra, 225 Cal.App.4th 979 then
went on to hold that, “[e]ven if we were to conclude the People
had no right of appeal at this juncture of the proceedings, we
would still find writ review appropriate. ‘If the prosecution has
not been granted by statute a right to appeal, review of any
alleged error may be sought by a petition for writ of mandate only
when a trial court has acted in excess of its jurisdiction and the
need for such review outweighs the risk of harassment of the
accused. [Citations.] Mandate is not available to the prosecution
for review of “ordinary judicial error” [citation] or even
“egregiously erroneous” orders [citations] . . . .’ (People v.




                                9
Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626 [156
Cal.Rptr. 626, 596 P.2d 691], fn. omitted.)” (Id. at p. 988.)
According to the court in Martinez, the trial court’s order finding
defendant eligible for resentencing in that case exceeded the
court’s jurisdiction to act under section 1170.126 and was
therefore subject to writ review, regardless of whether that
determination was also appealable. (Id. at pp. 988-989.)
       Given the court’s conclusion on the availability of writ relief
in that case, the appealability discussion in Martinez, supra, 225
Cal.App.4th 979 is dictum, as it was unnecessary to the court’s
ultimate holding authorizing writ review of the eligibility
determination. (See Manufacturers Life Ins. Co. v. Superior
Court (1995) 10 Cal.4th 257, 287.) But even if the appealability
discussion in Martinez, supra, 225 Cal.App.4th 979 was
necessary to the court’s alternative holding in that case, we
disagree with the premise of that holding, that the eligibility
determination necessarily affects enforcement of the judgment or
defendant’s relationship to it.
       As explained above, a trial court’s adjudication of a petition
for resentencing under section 1170.126 requires a two-step
process. In the first step, defendant bears the burden of
demonstrating eligibility. If the defendant satisfies his or her
burden, the burden then shifts to the prosecution, in the second
step, to demonstrate that the defendant is unsuitable for release.
Resentencing, however, occurs only after the second step is
completed and only if the trial court determines that the
defendant does not pose an unreasonable risk to public safety.
       Here, the trial court completed only the first step in that
process by finding defendant eligible for resentencing under the
terms of section 1170.126. But, at that point in the adjudication




                                 10
process, defendant was not automatically entitled to
resentencing. Instead, his three-strikes sentence remained in full
force and effect, and would continue to control the terms and
conditions of his incarceration during the entire time the
resentencing process was pending completion.
        Only if the trial court determines a defendant is suitable
for resentencing, is a defendant entitled to a second-strike
sentence and a modification to the judgment necessarily occurs.
Therefore, it is only at that point in the process—when the length
of the defendant’s three-strike sentence is directly and
immediately impacted—that the People’s substantial rights are
affected under section 1238, subdivision (a)(5) and the District
Attorney is empowered to appeal. (See People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, 1295 [because a
resentencing order under section 1170.126 “is simply a
modification of the original sentence,” and not a new judgment,
“it is appealable under . . . section 1238, subdivision (a)(5) as a
postjudgment order affecting the substantial rights of the
People”].)
        Accordingly, we conclude that because the trial court’s
preliminary eligibility determination did not, by itself, entitle
defendant to a second-strike sentence, that ruling did not
necessarily affect the substantial rights of the People by directly
and immediately altering the judgment, its enforcement, or
defendant’s relationship to it. The trial court’s order was
therefore not directly appealable under section 1238,
subdivision (a)(5).




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                        IV. DISPOSITION

     The appeal is dismissed.




                                      KIM, J.

We concur:




             BAKER, Acting P. J.




             MOOR, J.




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