People v. Niren

California Court of Appeal Jan 13, 1978 No. Crim. No. 9643Published

Before: Gardner

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Holding. An order denying a defendant's motion to recall a commitment under Penal Code section 1168 is nonappealable because a defendant lacks standing to initiate such proceedings.

Issues

Whether a defendant has standing to initiate proceedings under Penal Code section 1168.
Whether an order denying a defendant's motion to recall a commitment under Penal Code section 1168 is appealable.

Disposition. Appeal dismissed.

Quotations verified verbatim against the opinion

“The defendant simply has no standing to make a motion to recall under Penal Code section 1168. Therefore, the trial court’s denial of such a motion is not appealable.”

Opinion

GARDNER, P. J. Defendant pleaded guilty to arson and was sentenced to prison. A report was requested pursuant to Penal Code section 1168. The court subsequently received an unfavorable report from the Director of Corrections and declined to recall the commitment. Defendant then made a motion to recall the commitment. This motion was denied. Defendant then filed a notice of appeal from the latter order.

The Attorney General contends that the order purportedly appealed from is a nonappealable order. We agree.

Proceedings under Penal Code section 1168 cannot be initiated by a defendant. (Thomas v. Superior Court, 1 Cal.3d 788, 790 [83 Cal.Rptr. 357, 463 P.2d 709]; Alanis v. Superior Court, 1 Cal.3d 784 [83 Cal.Rptr. 355, 463 P.2d 707].) The defendant simply has no standing to make a motion to recall under Penal Code section 1168. Therefore, the trial court’s denial of such a motion is not appealable.

Appeal dismissed.

Kaufman, J., and McDaniel, J., concurred.

People v. Niren

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