People v. Gratton CA2/5

Filed 2/10/16 P. v. Gratton CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B262219

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA053037) v.

RICHARD ALAN GRATTON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Dismissed. Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.

Defendant, Richard A. Gratton, purports to appeal from an oral order denying his motion to modify the judgment. We recognized we may not have jurisdiction on direct appeal to consider the trial court’s response to defendant’s oral order denying his motion to modify the judgment. 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.) Thus, we issued an order to show cause re: possible dismissal of defendant’s appeal. We conclude we have no jurisdiction over defendant’s appeal which seeks to modify the judgment. On January 4, 2012, defendant was sentenced to prison for 10 years, 8 months. The sentence consisted of: four years for a violation of Penal Code1 section 4573.6, subdivision (a), controlled substance possession in a jail (count1); eight months as a subordinate term for methamphetamine possession in violation of Health and Safety Code section 11377, subdivision (a) (count 3); and six years as a result of findings that defendant had served six prior prison terms within the meaning of section 667.5, subdivision (a). We previously affirmed the judgment. (People v. Wood (May 3, 2012, B230344) [nonpub. opn.].) And, we have previously given notice of our intention to judicially notice the record in connection with the 2012 appeal as well as the superior court file. (People v. Gratton (Mar. 10 & Apr. 27, 2015, B262219) [nonpub. orders].) On an unspecified date, defendant filed a section 1170.18, subdivision (a) resentencing petition. We have judicially noticed the superior court file and there is no copy therein. On December 18, 2014, the trial court granted the resentencing petition as to count 3, methamphetamine possession and reduced the offense to a misdemeanor. The trial court denied defendant’s request to reduce count 1, controlled substance possession in a jail, to a misdemeanor. On January 13, 2015, defendant filed another section 1170.18, subdivision (a) resentencing petition. Other than a notation to a “Re-hearing,” the petition makes no reference to any particulars. A hearing was held on February 3, 2015, on defendant’s