P. v. Zingerle CA2/4

Filed 7/23/13 P. v. Zingerle CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B246641

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA089046) v.

BRADY ZINGERLE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Dismissed. California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Defendant Brady Zingerle appeals from the trial court‟s denial of his motion to recall his sentence. (Pen. Code, § 1170, subd. (d).) Because the denial of such a motion is not appealable, we will dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The record on appeal is quite sparse. On January 14, 2013, defendant filed a request for the trial court to recall his sentence pursuant to Penal Code section 1170, subdivision (d). From the motion, we can determine that defendant was in a drug program pursuant to Proposition 36 (Pen. Code, §1210 et seq.), violated the conditions of his probation, and was sentenced. Defendant argued that he should not have been ordered to serve time in custody.1 On January 17, the trial court denied the motion. A timely appeal from that denial followed.

DISCUSSION