People v. Terp CA1/5

Filed 12/2/22 P. v. Terp CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A164689
v.
CHAD W. TERP, (Sonoma County
Defendant and Appellant. Super. Ct. Nos. SCR-747034-1,
SCR-738398-1)
Chad W. Terp’s appointed appellate counsel has filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Our
independent review of the record reveals that Terp has not filed a
timely appeal from an appealable order. We dismiss the appeal.
BACKGROUND
Terp entered plea agreements in two criminal cases (Nos.
SCR-747034-1 & SCR-738398-1) filed by the Sonoma County
District Attorney. On November 5, 2021, Terp was sentenced to
the negotiated aggregate term of three years and eight months on
both cases. The trial court imposed a split sentence (Pen. Code, §
1170, subd. (h)(5)(B)):1 Terp was to serve the first two years in
county jail and the remainder of his sentence on mandatory
supervision. Terp was awarded 89 total days of presentence
custody credits (45 days actual/44 days conduct).
1 Undesignated statutory references are to the Penal Code.
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At the same time, Terp was also resentenced, on a case
from Napa County, to a concurrent term of 16 months. His
custody credits on that case were stated to be 165 days (83 days
actual/82 days custody), which was the number of credits
calculated at his initial sentencing in Napa County Superior
Court.
About a month later, the trial court called the matter
because there was confusion regarding custody credits awarded
on the Napa case. Defense counsel indicated that she would
request a transcript and add the case to calendar if any
recalculation was needed.
Almost two months later, defense counsel requested that
the matter be set for appearance on February 4, 2022 for
modification of “[s]entencing [t]erms.” However, on February 4,
the matter was dropped from the calendar.
Almost four months after judgment was imposed, Terp filed
notices of appeal from a purported judgment or order entered on
February 4, 2022, checking the box that indicated the appeal was
“based on the sentence or other matters occurring after the plea
that do not affect the validity of the plea.”
DISCUSSION
Terp’s appointed appellate counsel advised Terp of his right
to file a supplemental brief to bring to this court’s attention any
issue he believes deserves review. Terp filed no such brief.
Terp’s notices of appeal (read in conjunction with the
record) are unclear. To the extent he attempts to appeal from the
November 5, 2021 judgment, we lack jurisdiction because Terp
did not file a timely notice of appeal. (Cal. Rules of Court, rule
8.308(a) [notice of appeal generally must be filed within 60 days
of rendition of judgment or entry of order being appealed]; People
v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 [judgment is
rendered when trial court orally pronounces sentence]; In re
2
Jordan (1992) 4 Cal.4th 116, 121 [“[u]nless the notice [of appeal]
is actually or constructively filed within the appropriate filing
period, an appellate court is without jurisdiction to determine the
merits of the appeal and must dismiss the appeal”].) After 60
days passed (on January 4, 2022) without Terp filing a notice of
appeal, the judgement became final.
Furthermore, there was no appealable order entered on
February 4, 2022. (See § 1237, subd. (b) [appeal may be taken
from order made after judgment that affects party’s substantial
rights].) The record shows that the only order made by the trial
court on February 4 was an order dropping the matter from
calendar.
In any event, the augmented record shows that the trial
court has since recalculated Terp’s custody credits to reflect the
actual time he spent in custody after his initial sentencing in the
Napa case. (See § 2900.1.)
DISPOSITION
The appeal is dismissed.
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______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
WISEMAN, J.*
A164689
* Retired Associate Justice of the Court of Appeal, Fifth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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