Filed 8/26/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Appellant,

v.

PETER MONTELLANO,

Defendant and Respondent.

 B292044

 (Los Angeles County

 Super. Ct. No. VA041564)

APPEAL from a postjudgment order of the Superior Court 

of the County of Los Angeles, William C. Ryan, Judge. 

Dismissed.

Jackie Lacey, Los Angeles County District Attorney, Phyllis 

C. Asayama and Matthew Brown, Deputy District Attorneys, for 

Plaintiff and Appellant.

Nancy L. Tetreault, under appointment by the Court of 

Appeal, for Defendant and Respondent.
2

I. INTRODUCTION

The Los Angeles County District Attorney (the District 

Attorney) appeals from the trial court’s postjudgment order 

finding defendant Peter Montellano eligible for resentencing 

under Penal Code section 1170.126,1 the Three Strikes Reform 

Act of 2012 (Proposition 36 or the Act). We conclude that the 

trial court’s eligibility determination did not affect the 

substantial rights of the People by altering the underlying 

judgment, its enforcement, or the defendant’s relationship to it, 

and the order thus was not appealable under section 1238, 

subdivision (a)(5). We therefore dismiss the appeal.

II. FACTUAL AND PROCEDURAL BACKGROUND

In November 1994, defendant participated in the gang 

murder of Raul Casillas and the attempted gang murder of 

Casillas’s pregnant wife, G.C. After the victims lost their way in 

East Los Angeles and unintentionally drove through defendant’s 

gang territory, defendant and his fellow gang members 

surrounded their car and shot into it multiple times with a 

shotgun and a handgun, hitting Casillas in the head and G.C. in

multiple locations. Casillas died from his wounds, but G.C.

survived. Although the police were aware of defendant’s 

involvement in the shooting and were actively trying to locate 

him, he evaded arrest for over two years.

In February 1997, while still at large on the gang shooting 

case, defendant stole a car and a Bell Gardens police officer 

1 All further statutory references are to the Penal Code.
3

initiated a pursuit. During the pursuit, defendant drove 

recklessly trying to evade the police, running stop signs and red 

lights at a high rate of speed. Defendant eventually abandoned 

the car and fled on foot. He was apprehended 90 minutes later, 

and thereafter made several admissions to the police concerning 

his guilt.

In an information filed in the instant case (No. VA041564) 

in March 1997, the District Attorney charged defendant in 

count 1 with the unlawful driving or taking of a vehicle in 

violation of Vehicle Code section 10851, subdivision (a) and in 

count 2 with evading an officer in violation of Vehicle Code 

section 2800.2. The District Attorney alleged as to count 2 that 

defendant had suffered two prior strike convictions for robbery 

and two prior convictions for which he served a prison term.

In an information filed in a subsequent case (No. 

BA140730) in July 1997, the District Attorney charged defendant 

with the murder of Casillas in violation of section 187, 

subdivision (a) and the attempted murder of G.C. in violation of 

sections 664 and 187, subdivision (a).

In July 1997, the jury in this case found defendant guilty of 

unlawful driving or taking of a vehicle and evading a police 

officer. Because defendant admitted that he suffered two prior 

strike convictions, the trial court sentenced him under the Three 

Strikes Law on count 2 to a 25-years-to-life sentence, plus an 

additional two years for the two prior prison term enhancement 

allegations.

The following year, in April 1998, a jury in the gang 

shooting case found defendant guilty of the murder of Casillas

and the attempted murder of G.C. The trial court ordered 
4

defendant’s sentence in that case to run consecutively to 

defendant’s three-strike sentence in the instant case.

On May 22, 2014, defendant petitioned in this case under 

section 1170.126 for recall of his three-strike sentence on the

grounds that his third-strike felony conviction for evading an 

officer under Vehicle Code section 2800.2 was not a violent or 

serious felony. Following extensive briefing and several 

continuances, the trial court held a hearing on the petition in 

April 2018 to determine defendant’s eligibility for resentencing 

and then took the matter under submission. In July 2018, the 

court issued its statement of decision ruling that defendant’s socalled “super strike” convictions for murder and attempted 

murder were not disqualifying “prior convictions” under section 

1170.126. The court therefore found that defendant was eligible 

for resentencing under section 1170.126, subdivision (e)(3) and 

advised that the matter would proceed on a later date to a 

determination of whether defendant was suitable for 

resentencing under section 1170.126, subdivisions (f) and (g).

In August 2018, the District Attorney filed a notice of 

appeal from the trial court’s eligibility determination. The 

statement of appealability in the opening brief asserted that the 

eligibility determination was appealable under section 1238, 

subdivision (a)(5) as a postjudgment order that affects the 

substantial rights of the People, citing People v. Superior Court

(Martinez) (2014) 225 Cal.App.4th 979 (Martinez). Defendant did 

not contest appealability in the respondent’s brief.

After the case was fully briefed, but prior to oral argument, 

we sent a letter to the parties advising them to be prepared to 

address at argument whether the trial court’s eligibility 

determination was an appealable order under section 1238, 
5

subdivision (a)(5). At oral argument, the District Attorney, 

relying exclusively on Martinez, supra, 225 Cal.App.4th 979, 

reiterated that the eligibility determination was appealable 

under section 1238, subdivision (a)(5), and defendant disagreed.

III. DISCUSSION

A. Prerequisite to Appellate Jurisdiction

“Appellate courts have jurisdiction over a direct appeal . . . 

only where there is an appealable order or judgment. (Griset v. 

Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [107 

Cal.Rptr.2d 149, 23 P.3d 43] (Griset); Jennings v. Marralle (1994) 

8 Cal.4th 121, 126 [32 Cal.Rptr.2d 275, 876 P.2d 1074] (Jennings) 

[an appealable order or judgment ‘is a jurisdictional prerequisite 

to an appeal’].) ‘A trial court’s order is appealable when it is 

made so by statute.’ (Griset[, supra, 25 Cal.4th] at p. 696; see 

Dana Point Safe Harbor Collective v. Superior Court (2010) 51 

Cal.4th 1, 5 [118 Cal.Rptr.3d 571, 243 P.3d 575] [‘right to appeal 

is wholly statutory’ (citing § 904.1).)” (Katzenstein v. Chabad of 

Poway (2015) 237 Cal.App.4th 759, 765-766.) “A reviewing court 

must raise the issue on its own initiative whenever a doubt exists 

as to whether the trial court has entered a final judgment or 

other order or judgment made appealable by [statute].” 

(Jennings, supra, 8 Cal.4th at p. 126.)

B. Section 1170.126 Resentencing

The trial court’s eligibility determination was made as part 

of its adjudication of defendant’s resentencing petition pursuant 
6

to section 1170.126. We therefore begin our appealability 

analysis with a review of the statutory procedures that govern 

the adjudication of such a petition in the trial court.

Proposition 36 “amended the Three Strikes law with 

respect to defendants whose current conviction is for a felony that 

is neither serious nor violent. In that circumstance, unless an 

exception applies, the defendant is to receive a second[-]strike 

sentence of twice the term otherwise provided for the current 

felony . . . . [¶] . . . [¶] In addition to reducing the sentence to be 

imposed for some third[-]strike felonies that are neither violent 

nor serious, [Proposition 36] provides a procedure by which some 

prisoners already serving third[-]strike sentences may seek 

resentencing in accordance with the new sentencing rules. 

(§ 1170.126.)” (People v. Johnson (2015) 61 Cal.4th 674, 681-682.)

“The trial court’s consideration of a [resentencing] petition 

under the Act is a two-step process. First, the court determines 

whether the petitioner is eligible for resentencing. If the 

petitioner is eligible, the court proceeds to the second step, and 

resentences the petitioner under the Act unless it determines 

that to do so would pose ‘an unreasonable risk of danger to public 

safety.’ (§ 1170.126, subd. (f).)” (Martinez, supra, 225 

Cal.App.4th at p. 987.)

C. Section 1238, subdivision (a)(5)

In criminal cases, the People’s right to appeal is controlled

and limited by section 1238. “‘The prosecution’s right to appeal 

in a criminal case is strictly limited by statute. [Citation.] Longstanding authority requires adherence to these limits even 

though “the People may thereby suffer a wrong without a 
7

remedy.” [Citation.] The circumstances allowing a People’s 

appeal are enumerated in section 1238.’ (People v. Chacon (2007) 

40 Cal.4th 558, 564 [53 Cal.Rptr.3d 876, 150 P.3d 755]; see People 

v. Drake (1977) 19 Cal.3d 749, 754 [139 Cal.Rptr. 720, 566 P.2d 

622] [‘“The Legislature has determined that except under certain 

limited circumstances the People shall have no right of appeal in 

criminal cases.” [Citation.] Those circumstances are enumerated 

in section 1238’].) ‘“[C]ourts are precluded from so interpreting 

section 1238 as to expand the People’s right of appeal into areas 

other than those clearly specified by the Legislature.” [Citation.]’ 

(People v. McGuire (1993) 14 Cal.App.4th 687, 700-701 [18 

Cal.Rptr.2d 12] . . . .)” (In re Anthony (2015) 236 Cal.App.4th

204, 211.)

Here, the District Attorney asserts that the trial court’s 

eligibility determination is “[a]n order made after judgment, 

affecting the substantial rights of the [P]eople.” (§ 1238, 

subd. (a)(5).) An order affects the substantial rights of the People 

if it alters the judgment, its enforcement, or the defendant’s 

relationship to the judgment. (People v. Benavides (2002) 99 

Cal.App.4th 100, 105; see also People v. Leonard (2002) 97 

Cal.App.4th 1297, 1300 [“‘[I]n order to affect the People’s 

substantial rights an order “must in some way affect the 

judgment or its enforcement or hamper the further prosecution of 

the particular proceeding in which it is made”’”].)

“[O]ur courts have generally held that section 1238, 

subdivision (a)(5) authorizes the People to appeal orders that 

affect the defendant’s sentence or the timing of his or her 

release.” (In re Anthony, supra, 236 Cal.App.4th at pp. 211-212.) 

Such orders include, for example: “(1) an order erroneously 

granting a defendant credits against his or her prison sentence 
8

(People v. Minjarez (1980) 102 Cal.App.3d 309, 311-312 [162 

Cal.Rptr. 292]); (2) a certificate of rehabilitation issued to a 

defendant before the period of rehabilitation required by law has 

been completed (Daudert v. People (1979) 94 Cal.App.3d 580, 582-

585 [156 Cal.Rptr. 640]); (3) an order granting probation (People 

v. Warner (1978) 20 Cal.3d 678, 681-682 [143 Cal.Rptr. 885, 574 

P.2d 1237]); (4) an order erroneously staying sentence pursuant 

to section 654 (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2

[153 Cal.Rptr. 40, 591 P.2d 63]; People v. Holly (1976) 62 

Cal.App.3d 797, 801-802 [133 Cal.Rptr. 331]); and (5) an order 

reducing a felony to a misdemeanor (People v. Douglas (1999) 20 

Cal.4th 85, 96 [82 Cal.Rptr.2d 816, 972 P.2d 151]).” (People v. 

Benavides, supra, 99 Cal.App.4th at p. 104, fn. omitted.)

In each of the foregoing examples, the postjudgment orders 

found appealable under section 1238, subdivision (a)(5) shared a 

common characteristic: Each had a direct and immediate impact 

on either the length of the defendant’s sentence or its 

enforceability.

D. Analysis

The District Attorney’s appealability contention is 

premised exclusively on section 1238, subdivision (a)(5), as 

construed by the court in Martinez, supra, 225 Cal.App.4th 979. 

According to the court in Martinez, a trial court’s eligibility 

determination under section 1170.126 qualifies as (1) a 

postjudgment order (2) that affects the substantial rights of the 

People because it necessarily “affects enforcement of the 

judgment (in which the People clearly have a substantial 

interest), and it affects the inmate’s status with relation to the 
9

judgment already imposed.” (Id. at p. 987.) Although we agree 

that a trial court’s eligibility determination under section 

1170.126 is a postjudgment order, we disagree with the Martinez 

court’s conclusion that such a determination necessarily alters 

the judgment or a defendant’s relationship to it.

Martinez, supra, 225 Cal.App.4th 979 involved the distinct 

issue of whether a trial court’s eligibility determination under 

section 1170.126 was properly challenged by writ petition. The 

court addressed appealability in response to the defendant’s 

assertion that the writ petition in that case challenging the trial 

court’s eligibility determination should be dismissed because, 

“‘[a]s a general rule, the People may not seek an extraordinary 

writ in circumstances where the Legislature has not provided for 

an appeal.’” (Martinez, supra, 225 Cal.App.4th at p. 986, quoting 

People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1008.) 

Based on its view that an eligibility determination affects the 

substantial rights of the People, the court in Martinez concluded 

that “the People have the right to appeal the eligibility finding 

under section 1238, subdivision (a)(5).” (Id. at p. 988.)

But the court in Martinez, supra, 225 Cal.App.4th 979 then 

went on to hold that, “[e]ven if we were to conclude the People 

had no right of appeal at this juncture of the proceedings, we 

would still find writ review appropriate. ‘If the prosecution has 

not been granted by statute a right to appeal, review of any 

alleged error may be sought by a petition for writ of mandate only

when a trial court has acted in excess of its jurisdiction and the 

need for such review outweighs the risk of harassment of the 

accused. [Citations.] Mandate is not available to the prosecution 

for review of “ordinary judicial error” [citation] or even 

“egregiously erroneous” orders [citations] . . . .’ (People v. 
10

Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626 [156 

Cal.Rptr. 626, 596 P.2d 691], fn. omitted.)” (Id. at p. 988.) 

According to the court in Martinez, the trial court’s order finding 

defendant eligible for resentencing in that case exceeded the 

court’s jurisdiction to act under section 1170.126 and was 

therefore subject to writ review, regardless of whether that 

determination was also appealable. (Id. at pp. 988-989.)

Given the court’s conclusion on the availability of writ relief 

in that case, the appealability discussion in Martinez, supra, 225 

Cal.App.4th 979 is dictum, as it was unnecessary to the court’s 

ultimate holding authorizing writ review of the eligibility 

determination. (See Manufacturers Life Ins. Co. v. Superior 

Court (1995) 10 Cal.4th 257, 287.) But even if the appealability 

discussion in Martinez, supra, 225 Cal.App.4th 979 was 

necessary to the court’s alternative holding in that case, we 

disagree with the premise of that holding, that the eligibility 

determination necessarily affects enforcement of the judgment or 

defendant’s relationship to it.

As explained above, a trial court’s adjudication of a petition 

for resentencing under section 1170.126 requires a two-step 

process. In the first step, defendant bears the burden of 

demonstrating eligibility. If the defendant satisfies his or her 

burden, the burden then shifts to the prosecution, in the second 

step, to demonstrate that the defendant is unsuitable for release. 

Resentencing, however, occurs only after the second step is 

completed and only if the trial court determines that the 

defendant does not pose an unreasonable risk to public safety.

Here, the trial court completed only the first step in that 

process by finding defendant eligible for resentencing under the 

terms of section 1170.126. But, at that point in the adjudication 
11

process, defendant was not automatically entitled to 

resentencing. Instead, his three-strikes sentence remained in full 

force and effect, and would continue to control the terms and 

conditions of his incarceration during the entire time the 

resentencing process was pending completion.

Only if the trial court determines a defendant is suitable 

for resentencing, is a defendant entitled to a second-strike 

sentence and a modification to the judgment necessarily occurs. 

Therefore, it is only at that point in the process—when the length 

of the defendant’s three-strike sentence is directly and 

immediately impacted—that the People’s substantial rights are 

affected under section 1238, subdivision (a)(5) and the District 

Attorney is empowered to appeal. (See People v. Superior Court

(Kaulick) (2013) 215 Cal.App.4th 1279, 1295 [because a 

resentencing order under section 1170.126 “is simply a

modification of the original sentence,” and not a new judgment, 

“it is appealable under . . . section 1238, subdivision (a)(5) as a 

postjudgment order affecting the substantial rights of the 

People”].)

Accordingly, we conclude that because the trial court’s 

preliminary eligibility determination did not, by itself, entitle 

defendant to a second-strike sentence, that ruling did not 

necessarily affect the substantial rights of the People by directly 

and immediately altering the judgment, its enforcement, or 

defendant’s relationship to it. The trial court’s order was 

therefore not directly appealable under section 1238, 

subdivision (a)(5).
12

IV. DISPOSITION

The appeal is dismissed.

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.