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,

Defe ndant and Responde nt. B292044

(Los Ang eles 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 tri al court’s postjudgment order finding defendant Peter Montellano e ligible 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 d id not affect the substantial rights of the People by altering the underlying judgment, its enforcement, or the def endant’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

I n November 1994, defendant participated in the gang murder of Raul Casillas and the attempted gang murder of
Casillas’s pregnant wife, G

. C. After t he victims lost their way in East Los Angeles and unintentiona lly drove through defendant’s gang territory

, defendant and his fellow gang members
surrounded the ir 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 defendan t’s involvement in the shooting and were actively trying to locate him, he evaded arrest for over two years.
I n February 1997, while still at large on the gang shooting

case, defendant stole a car and a B ell Gardens police officer

1 All further statutory references are to the Penal Code.3 initiate d 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 fo ot. He was apprehended 90 minutes later, and thereafter made several admissions to the police concerning his guilt.
In an information filed in the in stant case ( N o. VA041564)
i n March 1997, the District Attorney charged defendant in

count 1 with the unlawful dr iving 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 ( N o. BA140730 ) i n July 1997, the District Attorney charged defendant
with the murder of Casillas in violation of secti on 187, subdivision (a) and the attempted murder of G .C. in violation of sections 664 and 187, subdivision (a).
I n July 1997, the jury in this case found defendant guilty of unlawful driving or taking of a vehicle and evading a police
officer. Because de fendant 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 enhanc ement allegations.
The fo llowing year, i n 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 ordered4 defendant’s sentence in th at case to run consecutively to
defendant’s three

- strike sent ence 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 i n April 2018 to determine defendant’s eligibility for resentencing
and then took the matter u nder submission. I n July 2 018, the
court issued its st atement of decision ruling that defendant’s so

called “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 wo uld proceed on a later date to a d etermin ation of whether defendant was suitable for resentencing under section 1170. 126, subdivisions (f) and (g).
I n Augus t 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) a s a postjudgment order that affects the substantial rights of the People, citing People v. Superior Court (Martinez) (2014) 225 C al.App.4th 979 ( Martinez ) . D efendant did not contest appealabil ity in the respondent’s brief. After the case was fully brief ed, 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 D istrict 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 Jur isdiction

“ 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. Mar ralle (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 Ca l.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] [‘ righ t to appeal is wholly statutory’ (citing § 904.1).) ” ( Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4 th 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 pursuant6 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, un less 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. 4t h 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, subdivisi on (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.] Long

standing authority requires adherence to these limits even though “ the People may thereby suffer a wrong without a7 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 ar e 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.4t h 687, 700

- 701 [18 Cal.Rptr.2d 12 ]

. . . .) ” ( In re Anthony (2015) 236 Cal.App.4 th 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 i nclude, for example: “ (1) an order erroneously granting a defendant credits against his or her prison sentence8 ( 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 th e period of rehabilitation required by law has been completed ( D audert 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.
Ben avides , supra , 99 Cal.App.4 th at p. 104 , fn. omitted .) In each of the foregoing examples, the postjudgment orders found appealable under sectio n 1238, subdivision (a)(5) shared a
common characteristic: E ach had a direct and immediate impact on either the length of the defendant’s sentence or its enforceability.

D. Analysis

The District A ttorney’s appealability contention is premised exclusive ly 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 a s (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 the9 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, w e disagree with the Martinez
court’s conclusion that such a determination necessarily alters the judgment or a defendant’s relations hip 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 defenda nt ’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

w rit in circumstances where the L egislature has not prov ided for an appeal.’” ( Martinez, supra , 225 Cal.App.4th at p. 986, quoting People v. S uperior Court ( Vida l ) (2007) 40 Cal.4th 999, 1008.) Based on its view that an eligibility determination affects the substantial rights of the People, t he court in Marti nez concluded
that “the People have the right to appeal the eligibility finding under section 1238, subdivision (a)(5).” ( Id. at p. 98 8 .)
But the court in Martinez, supra , 225 Cal.App.4 th 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 mand ate 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 t he 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
determin ation. ( 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 pr emise of that holding, that the eligibility
determination necessarily affects enforcement of the judgment or
d efendant’s relationship to it. As explained above, a trial court’s adjudication of a petition for resentencing under section 1170.126 requires a t wo

- 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

proce ss by finding defendant eligible for resentencing under the
terms of section 1170.126. But

, a t that point in the adjudication11 process, defendant wa s not automatically entitled to

re sentencing. Instead, his three

- strikes sentence remain ed in full
force an d effect , and would continue to control the terms and
conditions of his incarceration d uring the entire time the resentencing process wa s pending completion

. Only if the trial court determines a defendant is suitable for resentencing

, is a defendant entit led 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 subst antial rights are affected under section 1238, subdivision (a)(5) and the D istrict Attorney is empowered to appeal. ( See People v. S u perior C ourt ( 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 cour t’s preliminary eligibility determination did n o t, 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.