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P. v. Varnum CA3

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P. v. Varnum CA3
By
02/12/18

Filed 12/19/17 P. v. Varnum CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Siskiyou)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN LEE VARNUM,

Defendant and Appellant.
C084606

(Super. Ct. No. SCSCCRF2000210)




In 2000, defendant Steven Lee Varnum killed the man who reported him for child abuse. (People v. Varnum (May 27, 2004, C042701) [nonpub. opn.] at p. 4.) He was convicted of first degree murder (Pen. Code, § 187; statutory section references that follow are to the Penal Code) with the special circumstance of murder to prevent the testimony of a witness (§ 190.2), along with an enhancement for using a firearm in the commission of a murder (§ 12022.53, subd. (d)). (Varnum, at p. 1.) He was sentenced to life without parole plus a consecutive term of 25 years to life. (Ibid.)
On February 1, 2017, defendant filed a petition for recall of sentence pursuant to section 3051, asserting he was entitled to relief because he was 19 years old when he committed his crimes. The trial court denied the petition as it lacked jurisdiction for resentencing.
Defendant appeals from the denial.
Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant filed a supplemental brief asserting this court can address his appeal and he was entitled to relief under section 3051 as a matter of equal protection.
Section 3051 provides for parole hearings for offenders who were 23 or younger at the time of the offense and serving either a determinate term or a term of 25 years to life or less, or were under the age of 18 at the time of offense and serving a term of life without the possibility of parole. (§ 3051, subds. (a), (b).)
“ ‘[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. [Citation.]’ [Citations.] There are few exceptions to the rule.” (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204.) No recognized exception applies here, defendant filed his petition more than 120 days after the sentence was rendered, while section 3051 provides for parole hearings for certain youthful offenders, it provides no mechanism for petitioning for relief in a court.
In addition, the statute does not apply to defendant, who is serving a life without parole term for a crime committed when he was 19. Equal protection does not help; the persons covered by section 3051 are either juveniles or convicted of less serious crimes, those crimes punishable by less than life without parole. “The concept of equal protection recognizes that persons who are similarly situated with respect to a law’s legitimate purposes must be treated equally.” (People v. Brown (2012) 54 Cal.4th 314, 328.) Defendant is not similarly situated to the offenders covered by section 3051.
“ ‘ “It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.” [Citations.]’ [Citation.]” (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) “Stated simply, a criminal appeal by the defendant may be taken only from ‘a final judgment of conviction’ (§§ 1237, subd. (a), 1466, subd. (2)(A)) or from ‘any order made after judgment, affecting the substantial rights’ of the party (§§ 1237, subd. (b), 1466, subd. (2)(B)).” (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) Here, appeal is not taken from the judgment of conviction. And, “[s]ince the trial court lacked jurisdiction to [rule on defendant’s petition], its order denying [the petition] did not affect his substantial rights and is not an appealable postjudgment order. [Citation.] The appeal [must] be dismissed. [Citation.]” (People v. Turrin, supra, 176 Cal.App.4th at p. 1208; accord, People v. Mendez (2012) 209 Cal.App.4th 32, 34.)
DISPOSITION
The appeal is dismissed.



HULL , Acting P. J.



We concur:



ROBIE , J.



RENNER , J.





Description In 2000, defendant Steven Lee Varnum killed the man who reported him for child abuse. (People v. Varnum (May 27, 2004, C042701) [nonpub. opn.] at p. 4.) He was convicted of first degree murder (Pen. Code, § 187; statutory section references that follow are to the Penal Code) with the special circumstance of murder to prevent the testimony of a witness (§ 190.2), along with an enhancement for using a firearm in the commission of a murder (§ 12022.53, subd. (d)). (Varnum, at p. 1.) He was sentenced to life without parole plus a consecutive term of 25 years to life. (Ibid.)
On February 1, 2017, defendant filed a petition for recall of sentence pursuant to section 3051, asserting he was entitled to relief because he was 19 years old when he committed his crimes. The trial court denied the petition as it lacked jurisdiction for resentencing.
Defendant appeals from the denial.
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