People v. Whitfield CA5

Filed 6/27/22 P. v. Whitfield CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F083178 Plaintiff and Respondent, (Super. Ct. No. SC076688A) v.

TIMOTHY LEON WHITFIELD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Max Feinstat and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Peña, J. and Snauffer, J.

INTRODUCTION In 1999, a jury convicted defendant Timothy Leon Whitfield, in part, of second degree murder and found true allegations he personally used a firearm during the commission of the murder in violation of Penal Code section 12022.5, subdivision (a) and he personally and intentionally discharged a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the commission of the murder in violation of section 12022.53, subdivision (d). (Undesignated statutory references are to the Penal Code.) In March 2021, defendant submitted a “Motion for Discriminatory Relief” pursuant to section 745, subdivision (a). The trial court denied the motion in an order stating, “Case is final. Therefore, defendant is not eligible for resentencing as requested in motion/petition.” Defendant did not appeal from that order. On August 4, 2021, defendant submitted a “Motion for Judicial Notice Pursuant to Evidence Code 451, 459(a) … /Petition for Resentence [sic] pursuant to P.C. 745(a),” asserting the court’s denial of his March 2021 motion for discriminatory relief was “based on the erronius [sic] assumption that defendant’s case was final.” The court denied this motion/petition on August 5, 2021, stating in the order, “Case is on appeal. Therefore, this court has no jurisdiction on this request.” Defendant now appeals that order. The parties agree, as do we, the August 2021 order is not an appealable order. Accordingly, we dismiss the appeal for lack of jurisdiction. BACKGROUND In 1999, a jury found defendant not guilty of first degree murder, but guilty of, second degree murder (§ 187, subd. (a); count 1) and found true allegations he personally used a firearm during the commission of the murder in violation of section 12022.5, subdivision (a); he personally and intentionally discharged a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the