People v. Druschel

Opinion

BEACH, J.

On April 20, 1981, Gerald Edwin Druschel was sentenced to state prison for a total aggregate unstayed term of three years four months following revocation of probation previously granted in Los Angeles Superior Court cases Nos. A586723 and A586797.

1

On July 8, 1981, appellant, represented by counsel, obtained an order for nine months fifteen days of presentence credit. The court, however, refused the request to order a report prepared pursuant to Penal Code section 1170, subdivision (d).

2

It is here claimed that “[a]ppellant had a right to be personally present at the post-judgment sentencing hearing.”

We need not reach the merits of the appeal. By its own terms, defendant has no standing to make a motion for recall of sentence pur

[669]

suant to Penal Code section 1170, subdivision (d), and the denial of such a motion is not one which affects the substantial right's of the defendant within the meaning of Penal Code section 1237, subdivision 2. (See

People

v.

Niren

(1978) 76 Cal.App.3d 850, 851 [143 Cal.Rptr. 130].) Nothing in

In re Cortez

(1971) 6 Cal.3d 78, 89 [98 Cal.Rptr. 307, 490 P.2d 819] concerning the defendant’s presence at a postjudgment proceeding to determine the validity of a prior requires that we declare that a defendant has the right to be present when he unsuccessfully requests a recall pursuant to Penal Code section 1170, subdivision (d). The appeal being irregular, it is subject to dismissal. (Pen. Code, § 1248;

People

v.

Bond

(1981) 115 Cal.App.3d 918, 922-923 [172 Cal.Rptr. 4].)