P. v. Castellanos

Filed 10/9/08 P. v. Castellanos CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Robert Perry, Judge. Dismissed.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance on behalf of Plaintiff and Respondent.

Defendant, Lisinio A. Castellanos, purports to appeal from a March 3, 2008 post-judgment order denying his sentence modification motion. In his post-judgment motion, defendant argued the trial court abused its discretion when it imposed a victim restitution order (Pen. Code, 1202.4) in an amount that exceeded his ability to pay. We recognized that the post-judgment order might not be appealable. We have a duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127; Olson v. Cory (1983) 35 Cal.3d 390, 398.) We issued an order to show cause concerning possible dismissal of this appeal and set the matter for oral argument. The order denying defendants motion to modify the July 26, 1999 sentence insofar as it imposed restitution is not, under the facts of this case, appealable. (People v. Cantrell (1961) 197 Cal.App.2d 40, 43; People v. Bowles (1933) 135 Cal.App. 514, 516; see People v. Thomas (1959) 52 Cal.2d 521, 527.)

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J. MOSK, J.

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