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People v. Niren

California Court of Appeal · Crim. No. 9643 · 1978-01-13 · Published · 76 Cal. App. 3d 850 · 143 Cal. Rptr. 130 · 1978 Cal. App. LEXIS 1171

THE PEOPLE, and v. GARY ROBERT NIREN, and

Area
criminal
Panel
Robert Gardner (author)

Analysis

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Opinion — Gardner

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.

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.

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