Filed 12/10/13 P. v. Smith CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063754
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD238273,
SCD244164, SCE325006)
KEONA SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Charles
Ervin, Judge. Dismissed.
Richard L. Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
On January 7, 2013, the trial court sentenced Keona Smith to an aggregate term of
two years eight months in prison (case Nos. SCD 238273, SCD244164, SCD325006)
pursuant to plea agreements in each of the three cases. Smith did not file an appeal from
the January 7 judgment. On February 20, the trial court granted Smith's counsel's request
to award Smith additional conduct credits with respect to one of the cases (No.
SCD238273). In April 2013, Smith filed an appeal, in propria persona, from the
February 20 order. Appointed appellate counsel filed a brief presenting no argument for
reversal, but inviting this court to review the record for error in accordance with People v.
Wende (1979) 25 Cal.3d 436 (Wende).
We conclude that we lack appellate jurisdiction over Smith's appeal. The only
order from which Smith has appealed is the February 20 order granting Smith's request
for additional custody credits. Because Smith was not aggrieved by this order, we must
dismiss her appeal. (See, e.g., People v. Picklesimer (2010) 48 Cal.4th 330, 336
(Picklesimer) ([affirming Court of Appeal's conclusion that "[defendant] was not
aggrieved by the trial court's order . . . , the order was therefore unappealable, and the
appeal must be dismissed]"; see also Pen. Code, § 1237 ["An appeal may be taken by the
defendant [¶] . . . [¶] (b) From any order made after judgment, affecting the substantial
rights of the party"].)
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II.
FACTUAL AND PROCEDURAL BACKGROUND
In both January and December 2012, Smith entered into plea agreements in three
cases (Nos. SCD 238273, SCD244164, SCD325006). On January 7, 2013, the trial court
sentenced Smith to a stipulated term of two years eight months on the three cases. The
court awarded Smith 104 total days of custody credit in No. SCD 238273.
On February 20, the trial court held a hearing because there "was some confusion"
with respect to the court's award of custody credits in one of the cases (No.
SCD238273). At that hearing, defense counsel requested that Smith be given additional
custody credits in case No. SCD238273. The trial court agreed with defense counsel and
granted the request, awarding Smith 203 total days of custody credit in case No.
SCD238273.
On March 26, Smith wrote a letter to the trial judge asking for a sentence
modification. In her letter, Smith stated that she had a drug problem, that her drug usage
had played a large role in her commission of the charged crimes, and that she would
benefit from a drug treatment program. On April 2, the court issued an order denying
Smith's request.
On April 8, Smith filed a notice of appeal from the February 20 order.
On Sept 20, counsel filed a Wende brief. After this court received counsel's brief,
we provided Smith with the opportunity to file a supplemental brief. Smith did not file a
supplemental brief.
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III.
DISCUSSION
The appeal must be dismissed
As noted above, Smith did not appeal from the January 7, 2013 judgment. The
April 8, 2013 notice of appeal is not timely as to the judgment in any event. (See Cal.
Rules of Court, rule 8.308 [criminal appeal must be filed within 60 days of judgment or
order being appealed].) Thus, we may not interpret the notice of appeal as effectuating
an appeal from the judgment. (See ibid. ["no court may extend the time to file a notice of
appeal"]; People v. Mendez (1999) 19 Cal.4th 1084, 1094 ["An untimely notice of appeal
is 'wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc
order, and the appellate court has no power to give relief, but must dismiss the appeal on
motion or on its own motion.' [Citation.]"].)
Further, Smith was not aggrieved by the February 20, 2013 order—the only order
from which she has appealed.1 Rather, in its February 20 order, the trial court granted
Smith's counsel's request to award her additional custody credits. Because Smith was not
1 We may not construe Smith's notice of appeal as seeking review of the April 2
order because, even assuming the April 2 order is appealable, we may not construe
Smith's notice of appeal, which refers expressly and only to the February 20 order, as also
applying to the April 2 order. (See Colony Hill v. Ghamaty (2006) 143 Cal.App.4th
1156, 1171 [" ' "[W]here several judgments and/or orders occurring close in time are
separately appealable . . . , each appealable judgment and order must be expressly
specified—in either a single notice of appeal or multiple notices of appeal—in order to be
reviewable on appeal." ' [Citation.]"]; Unilogic, Inc. v. Burroughs Corp. (1992) 10
Cal.App.4th 612, 625 [" 'The rule favoring appealability in cases of ambiguity cannot
apply where there is a clear intention to appeal from . . . one of two separate appealable
judgments or orders. [Citation.]' "].)
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aggrieved by the February 20 order, we must dismiss the appeal. (See, e.g., Picklesimer,
supra, 48 Cal.4th at p. 336; Pen. Code, § 1237.)
IV.
DISPOSITION
The appeal is dismissed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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