Opinion
F074565
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN RAY DYNES, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Max Feinstat, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F13907336, F14902059)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Max Feinstat, Deputy Attorney General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant John Ray Dynes appeals from the trial court's denial of two of his petitions to recall his sentence pursuant to Penal Code section 1170.126 and his petition to modify his sentence. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
All further statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL HISTORY
On December 19, 2013, in case No. F13907336, Dynes pled no contest to second degree robbery (§ 211) and he admitted six prior prison term enhancements (§ 667.5, subd. (b)) and an allegation that he had a prior conviction within the meaning of the "Three Strikes" law.
On April 3, 2014, in case No. F14902059, Dynes pled no contest to carrying a concealed dirk or dagger (§ 21310) and he admitted an allegation that he had a prior conviction within the meaning of the Three Strikes law. Additionally, on that date, the court sentenced Dynes in both cases to an aggregate term of eight years four months, a doubled four-year term on Dynes's robbery conviction, a consecutive 16-month term (a doubled one-third the middle term of two years) on his possession of a dirk or dagger conviction, and three one-year prior prison term enhancements.
On July 18, 2016, in both cases, Dynes filed a petition for recall of sentence pursuant to section 1170.126.
On July 29, 2016, in both cases, Dynes filed a petition for modification of sentence.
On August 15, 2016, in both cases, Dynes filed a second petition for recall of sentence pursuant to section 1170.126.
On August 19, 2016, the court denied all three petitions.
On October 12, 2016, Dynes filed a timely appeal from the court's denial of his petitions that referenced case No. F13907336 and two unrelated cases, but not case No. F14902059.
On November 21, 2016, Dynes's appellate counsel filed a motion requesting that his appeal also be construed as an appeal from case No. F14902059.
On December 23, 2016, this court granted appellate counsel's motion.
Dynes's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on August 9, 2017, Dynes contends he committed petty theft, not robbery, and that he should have been sentenced to local time. He also appears to contend that his three prior prison term enhancements are invalid because the underlying convictions were reduced to misdemeanors. None of these contentions is cognizable on appeal.
California Rules of Court, rule 8.308(a) provides:
"Except [in circumstances not present here], a notice of appeal and any statement required by Penal Code section 1237 .5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except [in circumstances not present here], no court may extend the time to file a notice of appeal." (Italics added.)
"In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
Dynes's first two contentions are not cognizable on appeal because they challenge the original judgment in this matter, which was rendered on April 3, 2014, when he was sentenced in the instant two cases, and the instant appeal was filed more than 60 days after that date. His remaining contention is not cognizable on appeal because he never raised it in the trial court. (In re Seaton (2004) 34 Cal.4th 193, 199.)
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The order denying Dynes's petitions is affirmed.