Filed 8/24/20 P. v. Wilburn CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY WILBURN,

Defendant and Appellant.

 B301902

 (Los Angeles County

 Super. Ct. No. BA137387)

APPEAL from an order of the Superior Court of 

Los Angeles County, Richard S. Kemalyan, Judge. Appeal 

dismissed. 

Milena N. Blake and Michael S. Romano for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Nima Razfar, Deputy Attorneys 

General, for Plaintiff and Respondent.

____________________________
2

In July 1997, Defendant Anthony Wilburn was convicted of 

one count of false imprisonment of a hostage, two counts of 

assault with a firearm, and two counts of terrorist threats, and 

was sentenced to 28 years to life in prison. Nearly 22 years later, 

the secretary of the California Department of Corrections and 

Rehabilitation (CDCR) sent a letter to the trial court 

recommending that Wilburn’s sentence be recalled and that he be 

resentenced to a shorter term pursuant to Penal Code1

section 1170, subdivision (d)(1).2 

1 Undesignated statutory citations are to the Penal Code.

2 Section 1170, subdivision (d)(1) provides in pertinent 

part: “When a defendant subject to this section . . . has been 

sentenced to be imprisoned in the state prison . . . and has been 

committed to the custody of the secretary[,] . . . the court may, . . . 

at any time upon the recommendation of the secretary . . . recall 

the sentence and commitment previously ordered and resentence 

the defendant in the same manner as if they had not previously 

been sentenced, provided the new sentence, if any, is no greater 

than the initial sentence. . . . The court resentencing under this 

paragraph may reduce a defendant’s term of imprisonment and 

modify the judgment, including a judgment entered after a plea 

agreement, if it is in the interest of justice. The court may 

consider postconviction factors, including, but not limited to, the 

inmate’s disciplinary record and record of rehabilitation while 

incarcerated, evidence that reflects whether age, time served, and 

diminished physical condition, if any, have reduced the inmate’s 

risk for future violence, and evidence that reflects that 

circumstances have changed since the inmate’s original 

sentencing so that the inmate’s continued incarceration is no 

longer in the interest of justice. Credit shall be given for time 

served.” (See § 1170, subd. (d)(1).)
3

The trial court summarily denied the recommendation on 

May 13, 2019. On July 18, 2019, Wilburn and the District 

Attorney filed a joint request to reopen the case and allow the 

trial court to consider “[Wilburn’s] background materials used by 

the [CDCR] to arrive at the release recommendation.” On 

September 17, 2019, the trial court denied the joint request. On 

October 17, 2019, Wilburn appealed that ruling. 

On appeal, Wilburn contends the trial court violated his 

due process rights by rejecting the CDCR secretary’s 

recommendation without first holding a formal hearing. The 

People counter that we lack jurisdiction because the order 

denying the joint request is not an appealable order. Because

Wilburn fails to establish that the joint request was not simply a 

motion seeking a new ruling on the recommendation based on the 

same facts, we conclude that he has improperly sought review of 

a nonappealable order. As a result, we dismiss his appeal.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize only those facts that are relevant to this 

appeal.

On July 16, 1997, the People filed an amended information 

charging Wilburn with one count of false imprisonment of a 

hostage, in violation of section 210.5 (count 1); two counts of 

assault with a firearm, in violation of section 245, 

subdivision (a)(2) (counts 2 and 3); and two counts of terrorist 

threats, in violation of section 422 (counts 4 and 5). A jury later

found Wilburn guilty on all five counts. On July 24, 1997, the 

trial court sentenced Wilburn to an aggregate prison term of 

28 years to life on count 1, and stayed the sentence on the 

remaining counts pursuant to section 654.
4

Ralph M. Diaz, the CDCR secretary, later sent a two-page 

letter dated April 9, 2019 to the trial court, which recommended

that Wilburn’s sentence be recalled and that he be resentenced 

pursuant to section 1170, subdivision (d)(1) (recommendation 

letter). 

In support of his recommendation, Secretary Diaz stated 

the following: “Inmate Wilburn has received two Rules Violation 

Reports, since being received to CDCR [sic] on November 5, 1997. 

However, he has remained disciplinary free since 

February 9, 2001. Inmate Wilburn is currently assigned to the 

Dining Room as a Line Server. Wilburn was previously assigned 

to Adult Basic Education from December 3, 2013 to 

March 1, 2019. Inmate Wilburn participates in Alcoholics 

Anonymous and has also attended and completed a vast array 

courses [sic] in other Self-Help Programs. During his 

incarceration, Inmate Wilburn has taken full advantage of the 

opportunities available in order to better prepare himself for a 

release back into society. There are no [sic] active or potential 

holds, warrants, or detainers.”

In the concluding paragraph of the recommendation letter, 

Secretary Diaz stated: “Having reviewed the enclosed

documentation it appears that [I]nmate Wilburn’s sentence

warrants the attention of the court.” The following four 

enclosures are listed below the secretary’s signature 

line: “Abstract of Judgment[,] [¶] Minute Order[,] [¶] Court 

Information-Charging Documents[, and] [¶] Cumulative Case 

Summary.” Although the abstract of judgment and the operative 

information appear elsewhere in the clerk’s transcript (but are 

not attached to the recommendation letter that is included in 

that transcript), the secretary’s correspondence does not clarify 
5

which minute order is referenced therein, and the “Cumulative 

Case Summary” is not in the record before us.

On May 13, 2019, the trial court issued a minute order,

wherein the court observed it had received the recommendation 

letter, and the court stated that upon having “reviewed and 

considered the matter,” it decided to “take no further action” at 

that time. 

On May 16, 2019, Wilburn’s counsel filed a notice of 

appearance and a motion for a case management conference.3

Wilburn’s motion sought “a case management conference with 

the Court and District Attorney to discuss CDCR’s 

recommendation and, if necessary, set a briefing and hearing 

schedule for the matter.” 

On May 22, 2019, the trial court issued another minute 

order. The court noted that upon reviewing the CDCR secretary’s 

correspondence and the attachments thereto, the court had

issued a ruling on May 13, 2019 “that no further judicial action 

would be taken” at that time. The court further stated that on 

May 16, 2019, it received Wilburn’s counsel’s notice of 

appearance and motion for a case management conference. It 

then remarked that “[t]he decision under . . . section 1170(d) is a 

discretionary matter with the court” and that “[t]he prior order 

remain[ed] and no further judicial action w[ould] be taken at 

th[at] time.” The court concluded the May 22, 2019 order by 

explaining that the ruling “[was] provided as a courtesy to all 

counsel and Mr. Wilburn.” 

3 It appears that Wilburn’s attorneys had submitted the 

notice of appearance and the motion for a case management 

conference for filing before the court had issued the May 13, 2019 

order. 
6

On July 18, 2019, Wilburn and the Los Angeles County 

District Attorney’s Office filed a “Joint Request to Reopen Case 

and to Submit Supplemental Documents Pursuant to Cal. 

Penal Code § 1170(d)” (joint request). The joint request asked 

that “this case be reopened to permit [Wilburn] to lodge 

documents to [sic] the Court pursuant to . . . section 1170(d)(1).”

In particular, the parties “request[ed] the opportunity for 

[Wilburn] to present [Wilburn’s] background materials used by 

the [CDCR] to arrive at the release recommendation.”

4 The joint 

request noted that it did not “reflect the District Attorney’s 

position on the merits of the case,” but instead “reflect[ed] only 

[the] District Attorney’s agreement that the Court have the 

opportunity to review [Wilburn’s] background materials used by 

the [CDCR] to arrive at the release recommendation.” (Boldface 

& underscoring omitted.)

On September 17, 2019, the trial court denied the joint 

request (September 17, 2019 order). The court stated that it 

previously declined to accept the recommendation of the CDCR 

secretary after reviewing the court file for this case, the 

recommendation letter, and a 20-page document titled 

“ ‘Cumulative Case Summary Evaluation Report Pursuant to the 

4 Although the first page of the joint request sought an 

order “reopen[ing the case] to permit [Wilburn] to lodge 

documents,” the second page stated: “After reviewing the 

background information materials used by the [CDCR] to arrive 

at the release recommendation, it will be up to the Court to 

determine whether he would like the case to be reopened.” (Italics 

added.) In any event, it is apparent that the parties to the joint 

request desired to have the trial court once again consider 

whether Wilburn’s sentence should be recalled so that he could be 

resentenced pursuant to section 1170, subdivision (d)(1). 
7

Provisions of Penal Code 1170 (d)’ ” that was attached to the 

letter. The court found that “[n]othing in the materials provided 

by the Secretary establish any particularly exemplary conduct by 

the inmate” and “there is no necessity for a hearing or submission 

of additional documents.” It also concluded that a ruling on a 

recommendation to recall a sentence under section 1170, 

subdivision (d)(1) is “purely discretionary with the Court and 

there is no provision in the statute for a hearing, or resubmission 

of documents.” 

On October 17, 2019, Wilburn appealed the 

September 17, 2019 order. 

DISCUSSION

On appeal, Wilburn contends that the trial court violated 

his due process rights by rejecting the CDCR secretary’s 

recommendation without first affording Wilburn an opportunity 

to be heard and present evidence at a formal hearing. Before we 

may consider the merits of Wilburn’s claim of error, we must first 

decide whether we have the jurisdiction to do so. (See In re 

Mario C. (2004) 124 Cal.App.4th 1303, 1307 (Mario C.) [“[A] 

reviewing court is ‘without jurisdiction to consider an appeal from 

a nonappealable order, and has the duty to dismiss such an 

appeal upon its own motion. [Citations.]’ [Citation.] [¶] The 

fundamental rule governing the appealability of orders is that ‘ “a 

judgment or order is not appealable unless expressly made so by 

statute.” [Citations.]’ [Citations.]”].)

The People claim that the September 17, 2019 order is a 

nonappealable ruling on a motion for reconsideration.

5

5 In his reply, Wilburn cites People v. Castillo (2010) 

49 Cal.4th 145, 154, for the proposition that the People are
8

At bottom, the People complain that entertaining Wilburn’s 

appeal would allow him to circumvent the 60-day deadline for 

appealing the court’s prior ruling on the CDCR secretary’s 

recommendation. (See Cal. Rules of Court, rule 8.308(a) [“[A] 

notice of appeal . . . must be filed within 60 days after the 

rendition of the judgment or the making of the order being 

appealed.”].)6 As discussed below, we agree with the People.

“estopped from opposing [his] appeal” because the Los Angeles 

County District Attorney’s Office joined his request to reopen the 

case and the CDCR secretary recommended that his sentence be 

recalled. Although Castillo identified the necessary elements of 

judicial, equitable, and promissory estoppel, respectively, (see 

Castillo, at pp. 154–156 & fns. 9–11), Wilburn does not explain 

why this case satisfies each of the requirements of any of the

three estoppel doctrines discussed in Castillo. Accordingly, he

has waived these estoppel arguments. (See People v. Stanley

(1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal 

argument with citation of authorities on the points made. If none 

is furnished on a particular point, the court may treat it as 

waived, and pass it without consideration. [Citations.]’

[Citations.]”].) 

6 In passing, Wilburn seems to argue that under California 

Rules of Court, rule 8.108(e)(1), the parties’ filing of the joint 

request extended the 60-day deadline for appealing the minute

order issued on May 13, 2019, a deadline that had expired on 

July 12, 2019. This argument is without merit because that 

provision does not apply to criminal appeals. (See id., rule 8.108 

[appearing in the chapter titled “Civil Appeals”]; id., rule 8.7 

[“[I]n these rules the headings of divisions, chapters, articles, 

rules, and subdivisions are substantive.”]; id., rule 8.308 [rule 

governing the time to appeal in a criminal case, which does not 

incorporate by reference Cal. Rules of Court, rule 8.108].) Thus, 

we lack jurisdiction to review the trial court’s prior order denying 

the CDCR secretary’s recommendation. (See People v. Lyons
9

As a preliminary matter, Wilburn does not dispute the 

People’s assertion that the September 17, 2019 order constituted 

a ruling on a motion for reconsideration. In fact, he 

contends that “initiating an appeal from the denial of a 

motion to reconsider is an appropriate means to appeal the 

underlying order . . . .” Curiously, Wilburn also claims that the 

September 17, 2019 order “denied the recall request submitted by 

CDCR Secretary Diaz.” Yet, the joint request denied by the

September 17, 2019 order had sought a ruling “reopen[ing]” 

the case to “permit [Wilburn] to lodge documents [with] the 

Court . . . .” (See also ante, fn. 4.) Hence, we treat the 

September 17, 2019 order as a denial of a motion for 

reconsideration. (See California Correctional Peace Officers Assn. 

v. Virga (2010) 181 Cal.App.4th 30, 43 [“ ‘ “The nature of a motion 

is determined by the nature of the relief sought . . . .” ’ ”].)

Wilburn claims this order is appealable under section 1237, 

which provides in pertinent part: “An appeal may be taken by 

the defendant from . . . [¶] . . . [¶] . . . any order made after 

judgment, affecting the substantial rights of the party.” (§ 1237, 

subd. (b).)7 Notwithstanding the seemingly broad scope of this 

provision, “[a]n order made after judgment is not appealable 

where the motion merely ask[s] the court to repeat or overrule a 

(2009) 178 Cal.App.4th 1355, 1361 [“ ‘Unless the notice [of 

appeal] is actually or constructively filed within the appropriate 

filing period, an appellate court is without jurisdiction to 

determine the merits of the appeal and must dismiss the 

appeal.’ ”].)

7 Subdivision (a) of this statute does not apply because the 

September 17, 2019 order is not “a final judgment of conviction.” 

(See § 1237, subd. (a).)
10

former ruling on the same facts.” (People v. Rick (1952) 

112 Cal.App.2d 410, 412 (Rick); see also People v. Palmer (1942) 

49 Cal.App.2d 579, 580 [“[I]t is . . . well established that an order 

made after judgment is not appealable where the motion or 

application merely asks the court to repeat or overrule the former 

ruling on the same facts.”]; cf. People v. Orrante (1962) 201 

Cal.App.2d 553, 558 [“[A]n order denying a motion to vacate a 

prior judgment or order is not appealable [by the People] where 

the motion merely seeks to change the former decision on the 

same facts and where the grounds of the motion existed before 

the entry of the original order and were available on an appeal 

from such order.”], superseded on other grounds by Stats. 1986, 

ch. 59, § 1.) To hold otherwise would lead to an absurd result—

i.e., it “ ‘would . . . virtually allow[ ] two appeals from the same 

ruling, and would, in some cases, have the effect of extending the 

time for appealing . . . .’ ” (See Palmer, at p. 580.)

Wilburn fails to demonstrate that the joint request did not

“merely ask[ ] the court to repeat or overrule a former ruling on 

the same facts.”8 (Rick, supra, 112 Cal.App.2d at p. 412, italics 

8 Although the People raised this jurisdictional defect, 

Wilburn must still demonstrate that the September 17, 2019 

order was appealable. (See Cal. Rules of Court, rule 8.360(a) 

[“Except as provided in this rule, briefs in criminal appeals must 

comply as nearly as possible with rules 8.200 and 8.204.”]; id., 

rule 8.204(a)(2)(B) [“An appellant’s opening brief [in a civil 

appeal] must: . . . [¶] State that the judgment appealed from 

is final, or explain why the order appealed from is appealable,” 

italics added]; Good v. Miller (2013) 214 Cal.App.4th 472, 476–

477 [observing that Cal. Rules of Court, rule 8.204(a)(2)(B) 

“ ‘requires an appellant to make the preliminary and 

fundamental determination that the order appealed from is, in 

fact, an appealable order or judgment[,]’ ” and that the failure to 
11

added.) The joint request sought leave to submit “background 

materials used by the [CDCR] to arrive at the release 

recommendation.” That filing did not further identify any of 

these background materials, nor did it provide any indication 

that these materials contained facts not already included in the 

documents that Secretary Diaz had submitted with his letter

(e.g., the “ ‘Cumulative Case Summary Evaluation Report’ ”).

In their appellate briefing, Wilburn’s attorneys suggest they 

intended to submit information that was not previously before 

the court, including “security reviews, criminal risk assessments, 

victims’ statements, mental health assessments, . . . performance 

evaluations[,] . . . . the recommendations of several layers of 

CDCR bureaucracy, . . . and consultation with the Board of 

Parole Hearings . . . .” We disregard these factual assertions 

because none of them is supported by any citation to the record.9

comply therewith “ ‘serves the question of appealability onto the 

court’s [or respondent’s] side of the net.’ ”].)

9 We note that Wilburn’s counsel could have moved to 

augment the appellate record to include the enclosures attached 

to the recommendation letter. (See Cal. Rules of Court, 

rule 8.340(c) [“At any time, on motion of a party or on its own 

motion, the reviewing court may order the record augmented or 

corrected as provided in rule 8.155.”]; id., rule 8.155(a)(1)(A) [“At 

any time, on motion of a party or its own motion, the reviewing 

court may order the record augmented to include: . . . [¶] Any 

document filed or lodged in the case in superior court . . . .”].) 

Further, there is no apparent reason that Wilburn’s attorneys 

could not have attached the “background materials” to the joint 

request, in which case these materials would have been part of 

the record before us. (See id., rule 8.320(d)(1)(C) [“[I]f the 

defendant or the People appeal from an appealable order other 

than a ruling on a motion for new trial, the normal record is 
12

(See People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17 

[“ ‘[C]ourts will decline to consider any factual assertion 

unsupported by record citation at the point where it is 

asserted[.]’ ”].)

Secretary Diaz provided the trial court with a “ ‘Cumulative 

Case Summary Evaluation Report.’ ” At the time the secretary 

made his recommendation, the CDCR’s regulations required that 

extensive information be included in this type of report, including 

(inter alia): “Active or potential holds, warrants, [and] 

detainers”; “[i]nstitutional adjustment, including rules violation 

reports, counseling chronos, pending disciplinary actions, 

gang/disruptive group information, placement score, current 

housing assignment, work and education assignments, and 

participation in self-help activities”; “[t]he inmate’s post-release 

plan”; “Institutional Staff Recommendation Summary”; and “[t]he 

inmate’s most recent Board of Parole Hearings Parole 

Consideration Report . . . .” (See Cal. Code Regis., tit. 15, 

§ 3076.2, subd. (b)(2) (2018).) Thus, we cannot conclude on this 

record that Wilburn had asked the court to overrule its prior 

denial on the basis of any new facts.

Wilburn nonetheless intimates that the Supreme Court’s 

decision in People v. Loper (2015) 60 Cal.4th 1155, establishes 

that the September 17, 2019 order is appealable. In Loper, the 

CDCR secretary recommended the recall of a defendant’s

composed of: . . . [¶] A clerk’s transcript containing: [¶] . . . [¶] 

Any written motion or notice of motion granted or denied by the 

order appealed from, with supporting and opposing memoranda 

and attachments . . . .”].) Instead, it seems that counsel would 

have us rely on their unsworn representations concerning these 

documents. 
13

sentence under section 1170, subdivision (e), which

“authorizes . . . the [trial] court to recall a previously imposed 

sentence because the prisoner is now terminally ill or medically 

incapacitated . . . .” (See Loper, at pp. 1158–1159.) The trial 

court denied the recommendation, and the defendant appealed 

that decision. (See id. at p. 1159.) Our high court held that the 

Court of Appeal had jurisdiction over the defendant’s appeal 

pursuant to section 1237, subdivision (b), even though 

section 1170, subdivision (e) “does not specifically authorize the 

[defendant] to seek recall of his sentence” in the trial court. (See 

Loper, at pp. 1158, 1161.) Loper had no occasion to decide 

whether the denial of a motion to reconsider the trial court’s 

rejection of a recall recommendation constitutes an appealable 

order under section 1237, subdivision (b). (See People v. Williams

(2005) 35 Cal.4th 817, 827 [“ ‘[A]n opinion is not authority for a 

proposition not therein considered.’ ”].)

For the foregoing reasons, we conclude that Wilburn has 

sought review of a nonappealable order. We thus dismiss this

appeal for lack of jurisdiction. (See Mario C., supra, 

124 Cal.App.4th at p. 1307.)
14

DISPOSITION

We dismiss Wilburn’s appeal of the trial court’s order

denying the joint request to reopen the case.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

SINANIAN, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.