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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

AN THONY WILBURN,

Defendant and Appellant. B 301902

(Los Angeles County Super. Ct. No. B A 137387 )

APPEAL from a n 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 pursu ant to Penal Code 1
section 1170, subdivision (d)(1). 2

1 Undesignated statutory citations are to the Penal Code.

2 S ection 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

co nsider 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 inm ate’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 i s 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
hos tage, 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 g uilty on all five counts. On July 24, 1997, the trial court sentenced Wilburn to an aggregate prison term of

28 years to life on c ount 1 , and stayed the sentence on the remaining counts pursuant to section 654.4 Ralph M. Diaz, the CDCR se cretary , 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 c urrently 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

c ourses [ sic ] in other Self

- Help P rograms. During his
i ncarceration, 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, w arrants, 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

enc losures are listed b elow 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 els ewhere 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 clarify5

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

, an d 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 moti on sought “a case management conference with
the C ourt 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 a nother 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 orde r 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 A ngeles County District Attorney’s Office filed a “Joint Request to Reopen Case and to Submit Supplemental Documents Pursuant to C al.
Penal Code § 1170(d)” (joint request). The joint request asked
that “this case be reopened to permit [Wilburn] to lodge
do cuments 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 th e 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
& under scori ng omitted.) On September 17, 2019, the trial court denied the joint
request (September 17, 2019 order)

. The court stated that it

p reviously declined to accept the recomme ndation of the CDCR
secretary a fter 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 j oint 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 .” (I talics added.) In any event, it is apparent that the parties to the joint request desired to have the trial court once aga in 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 ]ot hing 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 rulin g 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 resubm ission
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 fo rmal 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 t o 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 u nless expressly made so by
statute.” [Citations.]’ [Citations.]”].)
T he 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 are8

At bottom, the People complain that entertaining Wilburn’s appeal would a llow 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, w e 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 & fn s

. 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 with out 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 appealin g 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. Lyons9 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 reconsi deration. 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 reques t 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 appealab le 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 appropr iate 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 conv iction.” (See § 1237, subd. (a).)10

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

112 Cal.App.2d 410, 41 2 ( 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 f ormer 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

s ame 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 St ats. 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 n ot “merely ask[ ] the court to repeat or overrule a fo rmer 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.

, r ule 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 app ealed 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 fr om is, in fact, an appealable order or judgment[,]’ ” and that the failure to11

added .) The joint request sought leave to submit “background materials used by the [CDCR] to arrive at the release

reco mmendation.” That filing did not further identify any of
the se background materials

, n or 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 appel late 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 t he question of appealability on to the court’s [or respondent’s] side of the net

. ’ ”].)

9 We note that Wilburn’s counsel could have moved to augment t he 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 provi ded 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 t he “background materials” to the j oint request, in which case these materials would ha ve 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 is12

(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

as serted[.]’ ”].) 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 t his type of repo rt, 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 s core, current housing assignment, work and education assignments, and participation in self

- help activities”; “[t]he inmate’s post

- release plan”; “Institutional S taff Recommendation Summary”; and “[t]he inmate’s most recent Board of Parole Hearings Parole
Consid eration 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 tha t the Supreme Court’s
decision in People v. Loper (2015) 60 Cal. 4 th 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 contain ing: [¶] . . . [¶] 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 denie d the recommendation, and the defendant appeal ed 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 reje ction 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

propo sition not therein considered. ’ ” ].) For the foregoing r easons, we conclude that Wilburn has sought review of a nonappealable order

. We thus dismiss t his 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.