Opinion
F053628
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW VARGAS, Defendant and Appellant.
Matthew Vargas, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
STATEMENT OF FACTS
In Fresno County Superior Court case No. 596324-4, appellant was convicted in 1998 of two counts of attempted murder and one court of first degree murder with a special circumstance that the murder was a `drive by shooting. Appellant committed these crimes when he was 17 years old. It was undisputed that he was unfit to be tried as a juvenile. He was sentenced to 10 years of determinant time based upon Penal Code section 12022.5 for the aggravated use of a gun, followed by an indeterminate life term without the possibility of parole, followed by two consecutive indeterminate life terms with the possibility of parole. A restitutionary fine was also imposed.
In 1999, appellants conviction was affirmed on appeal in F030649. Appellant did not challenge the restitutionary fine.
On March 27, 2007, appellant filed in Fresno County Superior Court case No. 07CRWR678335 a "Petition for Writ of Habeas Corpus." That petition challenged the imposition of the restitutionary fine in Fresno County Superior Court case No. 596324-4.
On May 11, 2007, the superior court denied appellants petition for writ of habeas corpus.
On September 4, 2007, appellant filed a notice of appeal "from the ORDER/JUDGMENT entered in this case, #07CRWR678335, on the Eleventh day of May, 2007..." The notice of appeal admitted that "This Appeal is NOT TIMELY as Petitioner is suffering the extraordinary circumstance of incarceration at a State Prison that lacks even a basic Law Dictionary."
This court allowed petitioner the opportunity to brief the issues of whether the notice of appeal was timely filed, whether the order appellant was appealing was an appealable order and whether the above entitled appeal should be dismissed.
DISCUSSION
In the notice of appeal and in appellants informal letter filed on December 3, 2007, petitioner admitted that the notice of appeal was not filed within 60 days of the order being appealed. Therefore, the appeal in the above entitled action is not timely filed and should be dismissed.
Appellant is challenging in this appeal an order denying a petition for writ of habeas corpus. Such orders are not appealable. (People v Ryan (1953) 118 Cal.App.2d 144, 149.) Therefore, this appeal should also be dismissed because it is taken from a nonappealable order.
DISPOSITION
Therefore, the appeal in the above entitled action is dismissed. --------------- Notes: Before Ardaiz, P.J., Levy, J., Gomes, J.