Filed 12/10/13 P. v. S mith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KEONA SMITH,

Defendant and Appellant. D063754

(Super. Ct. No s . SCD238273, SCD244164, SCE325006)

APPEAL from an order of the Superior Court of San Diego County, Charles

Ervin, Judge. Dismissed

.

Richard L. Schwartzberg, under appointment by the Court of Appeal, f or

Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 I.

INTRODUCTION

On January 7, 201 3 , the trial court sentenced Keona Smith to an aggregate te rm of

two years eight months in prison ( case Nos. SCD 238273, SCD 244164, SCD 325006)

purs u ant to plea agreements in each of the three cases. Smith did not file an appeal from

the January 7 judgment. On February 20, the trial court granted Smith ' s counsel ' s request

to award Smith additional conduct credits with respect to one of the cases (No.

SCD 238273) . In April 201 3 , Smith filed an appeal, in pro pria persona , from the

February 20 order. Appointed appellate counsel filed a brief presenting no argument for

reversal, but inviting this court to review the record for error in accordance with Pe ople v.

Wende (1979) 25 Cal.3d 436 ( Wende ).

We conclude that we lack appellate jurisdiction over Smith ' s appeal. The only

order f r om which Smith has appealed is the February 20 order granting Smith ' s request

for additional custody credits. Because Sm ith was not aggrieved by th is order

, we must

dismiss her appeal. (See, e.g., People v. Picklesimer (2010) 48 Cal.4th 330, 336

( Picklesimer ) ( [affirming Court of Appeal ' s conclusion that " [defendant] was not

aggri eved by the trial court ' s order

. . . , the order was therefore unappealable, and the

appeal must be dismissed ] " ; see also Pen. Code, § 1237 [ " An appea l may be taken by the

defendant [¶]

. . . [¶] (b) From any order made after judgment, affecting the substantial

rights of the party " ].)3 II.

FACTUA L AND PROCEDURAL BACKGROUND

In both January and D e cember 2012, Smith entered into plea agreements in three

cases ( Nos. SCD 238273, SCD 244164, SCD 325006 ). O n January 7, 201 3

, the trial court

sentenced Smith to a stipulated term of two years eight months o n the three cases

. The

court awarded Smith 104 total days of custody credit in No. SCD 238273.

On February 20, the trial court held a hearing because there " was some confusion "

with respect to the court ' s award of custody credits in one of the case s ( N o.

SCD 238273 )

. At that hearing, defense counsel requested that Smith be given additional

custody credits in case No. SCD 23827 3

. The trial court agreed with defense counsel and

granted the request, awarding Smith 203 total days of custody credit in case N o.

SCD 238273.

On March 26, Smith wrote a letter to the trial judge asking for a sentence

modification . In her letter, Smith stated that she had a drug problem, that her drug usage

had played a large role in her commission of the charged crimes, and that she would

benefit from a drug treatment program. On April 2, the court issued an order denying

Smith ' s request

.

On April 8, Smith filed a notice of appeal from the February 20 order.

On Sept 20, counsel filed a Wende brief. After this co urt received counsel ' s brief,

we provided Smith with the opportunity to file a supplemental brief. Smith did not file a

supplemental brief.4 III.

DISCUSSION

The appeal must be dismissed

As noted above, Smith did not appeal from the January 7, 2013 judgment

. T he

Apr il 8 , 201 3 notice of appeal is not timely as to the judgment in any event. (See Cal.

Rules of Court, r ule 8. 3 08 [criminal appeal must be filed within 60 days of judgment or

order being appealed].) Thus, we may not interpret the notice of appeal as effect uating

an appeal from the judgment. ( See ibid . [ " no court may extend the time to file a notice of

appeal " ]; People v. Mendez (1999) 19 Cal.4th 1084, 1094 [ " An untimely notice of appeal

is ' wholly ineffectual: The delay cannot be waived, it cannot be cure d by nunc pro tunc

order, and the appellate court has no power to give relief, but must dismiss the appeal on

motion or on its own motion. ' [Citation.] " ].)

Further, Smith was not aggrieved by the February 20, 201 3 order

— the onl y order

from whi ch she has a ppealed. 1 Rather, in its February 20 order, the trial court granted

Smith ' s counsel ' s request to award her additional custody credits. Because Smith was not

1 We may not construe Smith ' s notice of appeal as seeking review of the April 2 order because, eve n assuming the April 2 order is appealable, we may not construe

Smith ' s notice of appeal, which refers expressly and only to the February 20 order, as also applying to the April 2 order. ( See Colony Hill v. Ghamaty (200 6) 143 Cal.App.4th 1156, 1171 [ " ' " [W]here several judgments and/or orders occurring close in time are separately appealable

. . . , each appealable judgment and order must be expressly specified

— in either a single notice of appeal or multiple notices of appeal

— in order to be

reviewable on appeal. " ' [Citation.] " ]; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625 [ " ' The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from

. . . one of two separate appealable j udgment s or orders. [Citation.] ' " ].)5

aggrieved by the February 20 order

, we must dismiss the appeal. ( See, e.g., Picklesimer

,

supra , 48 Cal.4th at p. 336 ; Pen. Code, § 1237.)

IV.

DISPOSITION

The appeal is dismissed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

O ' ROURKE , J.