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Name: People v. Loper
Case #: D062693
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/29/2013
Subsequent History: Review granted 9/11/2013: S211840

Court’s order denying request to recall inmate’s sentence under compassionate release provisions of Penal Code is not appealable as an order affecting the substantial rights of the party. Loper pled guilty in 2010 to Insurance Code violations and was sentenced to six years in prison. In May 2012, medical personnel at the prison where Loper was incarcerated issued an internal request that a compassionate release request be made under Penal Code section 1170, subdivision (e) because Loper was in poor health with a short life expectancy, possibly less than six months. After a diagnostic study was performed, the under secretary for the Board of Parole hearings sent a letter to the trial court recommending compassionate release. After holding a hearing and requesting additional information, the trial court denied the request and Loper appealed. Held: Appeal dismissed. The right to appeal is statutory. A defendant may appeal an order after judgment which affects his substantial rights. (Pen. Code, § 1237, subd. (b).) As under section 1170, subdivision (d), a defendant has no right under subdivision (e) to apply for an order recalling his sentence on compassionate release grounds. Since Loper had no right to request recall of his sentence in the first place, his substantial rights were not affected by denial of the order.