People v. Smith CA4/2

Opinion

Filed 12/11/23 P. v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E081859

v. (Super.Ct.No. FWV21000842)

KEVIN DARNELL SMITH, JR.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Joseph B. Widman,

Judge. Dismissed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 On the court’s own motion, the appeal filed in the superior court on

September 28, 2023, from the trial court’s denial of defendant’s postjudgment motion for

resentencing under Penal Code section 1172.75 is DISMISSED because it does not affect

defendant’s substantial rights. (Pen. Code, § 1237, subd. (b).) The trial court lacked

jurisdiction to adjudicate defendant’s motion for resentencing. (See People v. Burgess

(2022) 86 Cal.App.5th 375, 380-382, 384 [“[S]ection 1172.75 simply does not

contemplate resentencing relief initiated by any individual defendant’s petition or

motion.”].) Since the court lacked jurisdiction when it denied defendant’s resentencing

motion, denial of the motion could not have affected his substantial rights. (People v.

Chlad (1992) 6 Cal.App.4th 1719, 1725-1726.) Accordingly, the order denying

defendant’s motion for resentencing is not an appealable order, and the appeal must be

dismissed. (Id. at p. 1725; see People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

MILLER Acting P.J.

CODRINGTON J.