Filed 5/29/13

                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D062693

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. SCD225263)

JAMES ALDEN LOPER,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Laura H.

Parsky, Judge. Appeal dismissed.



        Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Plaintiff

and Respondent.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Lise S.

Jacobson, Deputy Attorneys General, for Defendant and Appellant.

        James Alden Loper appeals from the trial court's order denying a request for recall

of his sentence which was initiated by the Department of Corrections and Rehabilitation
(the Department) under the compassionate release provision set forth in Penal Code

section 1170, subdivision (e).1 As we will explain, we conclude that the trial court's

order is not appealable by Loper, and we accordingly dismiss the appeal.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       Loper, who was born in 1953, pled guilty in 2010 to making a misrepresentation

of fact in violation of Insurance Code section 11880, subdivision (a), and he admitted

allegations that his crime involved a pattern of felony conduct resulting in a loss of more

than $100,000 (§ 186.11, subd. (a)(3)) and that he had incurred a prior strike (§ 667,

subds. (b)-(i)). The trial court sentenced Loper to a six-year prison term.

       In May 2012, medical personnel at Richard J. Donovan Correctional Facility

issued an internal request to obtain compassionate release for Loper pursuant to the

procedure set forth in section 1170, subdivision (e). That provision gives the trial court

the discretion — upon application of the Department or the Board of Parole Hearings —

to recall the sentence of certain terminally ill or permanently medically incapacitated

prisoners who meet the statutory criteria.2 The internal request stated that Loper had



1      Unless otherwise specified all further statutory references are to the Penal Code.

2       Section 1170, subdivision (e)(2) provides: "The court shall have the discretion to
resentence or recall if the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist: [¶] (A) The prisoner is terminally ill with an
incurable condition caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department. [¶] (B) The
conditions under which the prisoner would be released or receive treatment do not pose a
threat to public safety. [¶] (C) The prisoner is permanently medically incapacitated with
                                             2
"uncontrolled hypertension, advanced chronic obstructive pulmonary disease (COPD)

and severe coronary artery disease." According to the internal request, Loper was

currently able to perform all activities of daily living and was housed in an outpatient

setting, but his "life expectancy is short and possibly less than 6 months," and "[h]e is at

increased risk for sudden cardiac death[,]" with his "condition . . . likely to worsen." In

response to the internal request, the Department issued a diagnostic study on June 21,

2012.

        On August 14, 2012, the Department's undersecretary of operations sent a letter to

the trial court, enclosing the diagnostic study and recommending that Loper's prison

commitment and sentence be recalled under section 1170, subdivision (e).

        Pursuant to section 1170, subdivision (e)(3), the trial court held a hearing on

August 24, 2012.3 At the hearing, the trial court ordered the Department to provide

additional information consisting of: "An update on Mr. Loper's condition; An opinion

from a doctor of the [Department] as to whether Mr. Loper's illness would produce death

within six months; What treatment is available for Mr. Loper; What, if any, treatment




a medical condition that renders him or her permanently unable to perform activities of
basic daily living, and results in the prisoner requiring 24-hour total care, including, but
not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that incapacitation did not exist at
the time of the original sentencing."

3     Loper waived his right of personal presence, and appointed counsel appeared for
Loper at the relevant hearings.

                                              3
Mr. Loper refused while in prison and how that refusal may have affected his current

condition; [and] . . . a more extensive release plan . . . ."

       The chief medical executive at Richard J. Donovan Correctional Facility sent a

letter to the trial court on September 12, 2012, in response to the court's request.

According to the letter, Loper's condition "remain[ed] stable," his hypertension had

improved, he was "not presenting with any symptoms suggestive for acute congestive

heart failure," but was "an ill individual with disease processes that will continue to

progress, despite treatment, leading to his eventual demise." With respect to Loper's life

expectancy, the letter stated that "[h]is current status does not indicate for or against a

prognosis of less than six months to live."

       The trial court held another hearing on September 14, 2012, at which it denied the

request to recall Loper's sentence because the statutory requirements were not met. As

the trial court explained, "there is an insufficient showing for the court to make the

findings required under . . . section 1170(e)(2)(A), specifically that the prisoner has an

incurable condition caused by illness or disease that will produce death within six months

as determined by a department physician."

       Loper filed a notice of appeal from the trial court's order denying the recall of his

sentence. Loper's appellate brief argues that the trial court misunderstood or misapplied

the applicable statutory criteria.




                                                4
                                               II

                                        DISCUSSION

       The Attorney General argues that the order denying the recall of Loper's sentence

is not an order appealable by Loper and advocates that we dismiss the appeal. As we will

explain, we agree.

       " ' "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." ' " (People v. Totari (2002) 28

Cal.4th 876, 881.) As relevant here, a defendant may appeal from "any order made after

judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).) Therefore,

Loper may appeal from the order denying recall of his sentence only if that order affects

his substantial rights.

       If interpreted broadly, the phrase "affecting the substantial rights of the party" in

section 1237, subdivision (b) "would apply to any postjudgment attack upon the

conviction or sentence" because "[t]he court's denial of relief in any such situation could

affect the defendant's substantial rights. However, decisional authority has limited the

scope of the phrase, defining appealability more narrowly." (People v. Gallardo (2000)

77 Cal.App.4th 971, 980.) Neither the parties, nor our own research, has revealed any

opinion directly addressing whether a party's substantial rights are affected by an order

denying a recall of a sentence under the compassionate release provisions set forth in

section 1170, subdivision (e). However, case law holds that an order denying a recall of

a sentence under a similar provision — section 1170, subdivision (d)(1) — is not



                                                5
appealable.4 As we will explain, we find the reasoning of that case law to be persuasive

here.

        Specifically, section 1170, subdivision (d)(1) states that "[w]hen a defendant . . .

has been sentenced to be imprisoned in the state prison and has been committed to the

custody of the secretary, 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, 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 . . . ."

As courts have pointed out when analyzing whether an order denying recall of a sentence

under section 1170, subdivision (d) affects a party's substantial rights, the statute does not

give the defendant the right to initiate a court proceeding for recall of the sentence.

Instead, a recall of the sentence is initiated either on the court's own motion or by

recommendation of the secretary or the Board of Parole Hearings. (§ 1170, subd. (d)(1).)

"Consequently, the courts have uniformly held that an order denying a defendant's request

to resentence pursuant to section 1170, subdivision (d) is not appealable as an order

affecting the substantial rights of the party. This is because the defendant has no right to

request such an order in the first instance; consequently, his 'substantial rights' cannot be

affected by an order denying that which he had no right to request." (People v. Pritchett

(1993) 20 Cal.App.4th 190, 194 [citing cases] (Pritchett).)


4      We note that section 1170, subdivision (d) was amended, effective January 1,
2013, to add an additional subdivision. (Stats. 2012, ch. 828, § 1.) The current text of
section 1170, subdivision (d)(1) was formerly referred to as section 1170, subdivision (d).

                                               6
       For the purpose of our analysis, the procedure for recalling a sentence under

section 1170, subdivision (e) shares a crucial similarity with the procedure for recalling a

sentence under a section 1170, subdivision (d)(1). As under section 1170, subdivision

(d)(1), a defendant has no right to apply to the court for an order recalling the sentence on

compassionate release grounds pursuant to section 1170, subdivision (e). Instead, such

proceedings may only be initiated by the Department or the Board of Parole Hearings.

(§ 1170, subd. (e)(1).)5 Because Loper's substantial rights are not affected by the trial

court's order denying recall of his sentence under section 1170, subdivision (e), Loper

may not appeal from the order.

       Loper presents two arguments in support of appealability, neither of which are

persuasive.

       First, Loper suggests that in analyzing whether his substantial rights are affected

by the trial court's order denying the sentence recall, we should look to case law

discussing whether a party has constitutional standing to bring a lawsuit. Specifically,

Loper argues that we should look to whether he has a beneficial interest in the

controversy, and "has either suffered or is about to suffer an injury of sufficient

magnitude." (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798,

814, italics omitted.) We reject Loper's argument because it is contrary to the approach


5      Specifically, the statute provides that "the secretary [of the Department] or the
Board of Parole Hearings . . . may recommend to the court that the prisoner's sentence be
recalled." (§ 1170, subd. (e)(1).) The only role that the defendant can play in initiating
the compassionate release process is internally within the prison by contacting the
prison's chief medical officer or the secretary of the Department to try to obtain a
recommendation for compassionate release from them. (§ 1170, subd. (e)(6).)
                                              7
in Pritchett, supra, 20 Cal.App.4th 190, and the cases it cites, where the inquiry was not

whether the defendant would suffer injury if the defendant's sentence recall was denied,

but rather whether the defendant had a right to request the relief that the trial court

denied. Here, as in Pritchett, the applicable statutory provision simply does not give the

defendant the right to request recall of his sentence, and, as in Pritchett, that fact is

dispositive of whether the defendant's substantial rights are affected.

       Next, Loper argues that cases interpreting section 1170, subdivision (d)(1) are not

relevant here because of differences between that statute and section 1170,

subdivision (e). He argues that (1) the two statutes "serve very different core purposes

and functions," in that one focuses on compassionate release and the other focuses on

correcting errors in the original sentence; (2) under section 1170, subdivision (d)(1), a

trial court has a 120-day deadline to recall a sentence, but that no such deadline exists in

the compassionate release provision of section 1170, subdivision (e); and (3) the facts of

Pritchett are distinguishable because in that case, the trial court granted the defendant's

request to recall his sentence for the purpose of avoiding the time limit for filing an

appeal. (Pritchett, supra, 20 Cal.App.4th at pp. 192-193.) We do not find any of Loper's

attempted distinctions to be relevant. As we have explained, the fundamental legal

principle expressed in Pritchett and the cases it cites is that a defendant's substantial

rights are not affected by denial of an order for a sentence recall under section 1170,

subdivision (d)(1) because the defendant had no legal right to request the order in the first

place. That principle is equally applicable here where Loper had no right in the first

place to request a recall of his sentence under section 1170, subdivision (e).

                                               8
      When a defendant appeals from a postjudgment order that is not appealable, the

proper procedure is to dismiss the appeal. (People v. Turrin (2009) 176 Cal.App.4th

1200, 1208; People v. Chlad (1992) 6 Cal.App.4th 1719, 1726-1727.) Accordingly we

dismiss Loper's appeal.

                                    DISPOSITION

      The appeal is dismissed.



                                                                              IRION, J.

WE CONCUR:



             MCCONNELL, P. J.



                   O'ROURKE, J.




                                           9
