Filed 5/24/16 P. v. Purcell CA2/7

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B267838

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA109914)
         v.

JOHNNY OREN PURCELL,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A.
Sahagun, Judge. Appeal dismissed.
         Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.




                                        _________________________
       Johnny Oren Purcell appeals from the denial of his petition to recall his sentence
under Penal Code,1 section 1170, subdivision (d)(1). We dismiss the appeal.
       In 2009, Purcell was sentenced as second strike offender to an aggregate state
prison term of 20 years after being convicted of second degree robbery (§ 211) with a
finding he had personally used a firearm to commit the offense (§12022.53, subd. (b)).
Purcell moved to modify his sentence, “based on Senate Bill 261 (§ 3051), which was
filed on October 2, 2015; the trial court summarily denied the motion on October 8,
2015.” On October 26, 2015, Purcell filed an in propria persona notice of appeal from
the order.
       We appointed counsel to represent Purcell on appeal. After examination of the
record, counsel filed an opening brief in which no issues were raised. On February 2,
2016, we advised Purcell he had 30 days within which to submit any contentions or
issues he wished us to consider. We received no response. However, attached to
Purcell’s notice of appeal is a copy of his 23-page petition for modification of his
sentence.
       Section 3051 is not a resentencing statute. Because Purcell has no basis to seek
resentencing under section 3051, we treat his motion as one made under section 1170,
subdivision (d), the general resentencing statute.
       Section 1170, subdivision (d)(1) enables a defendant to recall the current sentence
and seek resentencing if the request is made within 120 days of the date of commitment.
In this case, Purcell petitioned for resentencing well beyond that deadline. After that
time, the trial court no longer had jurisdiction to resentence Purcell. (See People v. Loper
(2015) 60 Cal.4th 1155, 1166 [the trial court’s “refusal to act on a defective defense
motion for resentencing could not have affected any legal rights” of the defendant];
compare People v. Teal (2014) 60 Cal.4th 595 [appeal lies where denial of petition
affects substantial rights].) As a result, the order issued by the trial court in this case is



1      Statutory references are to the Penal Code.

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not appealable, and we dismiss the appeal. (Id. at pp. 1165-1166; People v. Chlad
(1992) 6 Cal.App.4th 1719, 1725-1726.)

                                       DISPOSITION
      The appeal is dismissed.




                                               ZELON, J.




We concur:




      PERLUSS, P. J.




      SEGAL, J.




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