PEOPLE v. NIREN (1978)

Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Robert NIREN, Defendant and Appellant.

Cr. 9643.

Decided: January 13, 1978

Stephan T. Ripps for defendant and appellant. Evelle J. Younger, Atty. Gen., and Karl J. Phaler, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Defendant pleaded guilty to arson and was sentenced to prison. A report was requested pursuant to Penal Code s 1168. The court subsequently received an unfavorable report from the Director of Corrections and declined to recall the commitment. Defendant then made a motion to recall the commitment. This motion was denied. Defendant then filed a notice of appeal from the latter order.

The Attorney General contends that the order purportedly appealed from is a non-appealable order. We agree.

Proceedings under Penal Code s 1168 cannot be initiated by a defendant. (Thomas v. Superior Court, 1 Cal.3d 788, 790, 83 Cal.Rptr. 357, 463 P.2d 709; Alanis v. Superior Court, 1 Cal.3d 784, 83 Cal.Rptr. 355, 463 P.2d 707.) The defendant simply has no standing to make a motion to recall under Penal Code s 1168. Therefore, the trial court's denial of such a motion is not appealable.

Appeal dismissed.

GARDNER, Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.

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