People v. Ross CA2/5

Filed 8/12/14 P. v. Ross CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B255548

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA028210) v.

ARTHUR JAMES ROSS, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Dismissed. Jill Ishida, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Defendant, Arthur J. Ross, purports to appeal from an order denying his motion to recall his sentence. The gravamen of defendant’s papers filed in the trial court resemble a habeas corpus petition and a motion to vacate the judgment. We recognized the order under review may not be appealable. We have a duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Hence, we issued an order to show cause and calendared the matter of argument which was waived. We have previously modified the judgment in two separate opinions. (People v. Ross (August 15, 2012, B238327) [nonpub. opn.]; People v. Ross (Mar. 15, 2006, B179610) [nonpub. opn.].) The denial of a motion to vacate the judgment is, under our circumstances, nonappealable. (People v. Banks (1959) 53 Cal.2d 370, 378; People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) In some respects, defendant’s paperwork resembles a habeas corpus petition. The denial of a habeas corpus petition is not appealable. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7; In re Hochberg (1970) 2 Cal.3d 870, 876, disapproved on other grounds in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.) Further, the gravamen of his motion in the trial court is not a challenge to a jurisdictional error. Thus, we have no jurisdiction to consider defendant’s contentions on direct appeal. The appeal is dismissed.