People v. Niren

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[Crim. No. 9643. Fourth Dist., Div. Two. Jan. 13, 1978.]

THE PEOPLE, Plaintiff and Respondent, v. GARY ROBERT NIREN, Defendant and Appellant.

(Opinion by Gardner, P. J., with Kaufman and McDaniel, JJ., concurring.)

COUNSEL

Stephan T. Ripps for Defendant and Appellant.

Evelle J. Younger, Attorney General, and Karl J. Phaler, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

GARDNER, P. J.

Defendant pleaded guilty to arson and was sentenced to prison. A report was requested pursuant to Penal Code section 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 nonappealable order. We agree.

[1] Proceedings under Penal Code section 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 section 1168. Therefore, the trial court's denial of such a motion is not appealable.

Appeal dismissed.

Kaufman, J., and McDaniel, J., concurred.