People v. Gastelum CA3

DISCUSSION

Defendant contends the trial court denied him the opportunity to establish a prima facie case for relief when it treated defendant’s motion, denominated a “Motion to Vacate Sentence and Conviction Due to Actual Innocence of Charged Offense,” as a motion to vacate pursuant to section 1016.5 rather than a petition for writ of habeas corpus. Defendant cites no legal authority to support his contention that the trial court had any obligation to construe his motion, which raised concerns about ineffective assistance of counsel, as a petition for writ of habeas corpus, and we find none. Nor do we find any statutory or other authority that makes defendant’s nonstatutory motion to vacate his judgment appealable. Accordingly, we dismiss defendant’s appeal as noncognizable. “ ‘[A]n order is not appealable unless declared to be so by the Constitution or by statute. [Citations.]’ [Citation.] Stated simply, a criminal appeal by the defendant may be taken only from ‘a final judgment of conviction’ [citation] or from ‘any order made after judgment, affecting the substantial rights’ of the party [citation.]” (People v.

Section 1016.5, subdivision (a), requires that, prior to…