Filed 9/25/24 P. v. Shipley CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CRAIG SHIPLEY,

Defendant and Appellant.

 H051155

 (Santa Clara County

 Super. Ct. No. CC940297)

I. INTRODUCTION

In 2010, defendant Craig Shipley was sentenced to 20 years eight months in 

prison. As part of the sentencing, the trial court “impose[d] two one-year prison priors” 

but then proceeded to “strik[e] the two one-year prison priors.” (See Pen. Code, § 667.5, 

former subd. (b).)

1

In 2023, after the Legislature limited the circumstances in which prior prison term 

enhancements may apply, defendant filed a motion to have his sentence recalled and be 

resentenced under section 1172.75. The trial court denied the motion.

On appeal, defendant contends that his due process rights were violated when the 

trial court denied the motion without first appointing counsel or holding a hearing. 

Defendant also argues that he is eligible for relief under section 1172.75 because the 

1 All further statutory references are to Penal Code unless otherwise indicated.
2

original sentencing court struck only the punishment for the prior prison term 

enhancements, not the enhancement themselves.

For reasons that we will explain, we conclude that the trial court did not have 

jurisdiction to rule on the motion and we will therefore dismiss the appeal.

II. BACKGROUND

A. The Convictions and Sentence

In early 2010, defendant was convicted by plea of two counts of second degree 

robbery and two counts of attempted second degree robbery (§§ 664, 211, 212.5, 

subd. (c)). Allegations were admitted or found true that defendant had two prior serious 

felony convictions that also qualified as strikes (§ 667, former subds. (a), (b)–(i); former 

§ 1170.12) and that he had served two prior prison terms (§ 667.5, former subd. (b)). The 

prior prison terms were based on convictions for second degree burglary (§§ 459, 460, 

subd. (b)) and possession of a controlled substance (Health & Saf. Code, § 11377, former 

subd. (a)).

In the probation report, regarding the prior prison term enhancements, the 

probation officer recommended that the trial court “strike add’l punish purs to 1385 PC.”

In late 2010, after striking one of defendant’s strikes (see People v. Superior Court

(Romero) (1996) 13 Cal.4th 497), the trial court sentenced defendant to 20 years eight 

months in prison. In explaining how the court reached that sentence, the court stated the 

following regarding the prior prison term enhancements: “The Court will impose two 

one-year prison priors for a total term of 2 years. The Court will strike those pursuant to 

1385, which reasons include the following: [¶] That the defendant . . . has committed 

himself in an outstanding manner to his sobriety. He’s done an outstanding job while in 

custody and doing rehabilitative programs. And the Court will find that substance abuse 

played a significant condition on the part of the entire crime spree involved in this case. 

I’m, therefore, striking the two one-year prison priors.”
3

The abstract of judgment for defendant’s case includes the following preprinted 

instructions, “Enter time imposed for each [enhancement] or ‘S’ for stayed. DO NOT 

LIST ANY STRICKEN ENHANCEMENT(S).” The abstract of judgment lists both

prior prison term enhancements as “PC667.5(b) x 2” with the notation “**S” in the 

column for the number of years. Under a section for “[o]ther orders,” the abstract of 

judgment states, “**Stricken pur PC1385.”

Defendant appealed from the judgment regarding issues unrelated to the prior 

prison term enhancements, and this court affirmed the judgment. (People v. Shipley

(Nov. 17, 2011, H036252) [nonpub. opn.].) In this court’s opinion, in summarizing the 

procedural history of the case, this court stated that the trial “court imposed then struck 

the additional punishment for the two prison priors (§ 667.5, subd. (b)).”

B. Motion for Resentencing Under Section 1172.75

Effective in 2020, the Legislature limited the circumstances in which a prior 

prison term enhancement may apply and effective in 2022, enacted a statute allowing for 

resentencing in certain cases. (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, 

§ 1, eff. Jan. 1, 2020; former § 1171.1, added by Stats. 2021, ch. 728, § 3, eff. Jan. 1, 

2022, renumbered without substantive change as § 1172.75 by Stats. 2022, ch. 58, § 12, 

eff. June 30, 2022.)

On March 24, 2023, defendant, as a self-represented litigant, filed a motion for 

resentencing under section 1172.75. He contended that his sentence was “illegal under 

current laws” and that he was entitled to a full resentencing.

On May 9, 2023, the public defender’s office filed on behalf of defendant a 

(second) motion for resentencing pursuant to section 1172.75, apparently unaware of 

defendant’s earlier motion. In the motion, defense counsel contended that defendant was 

entitled to recall of his sentence and resentencing because the abstract of judgment 

referred to prior prison term enhancements with the notation “ ‘PS,’ ” which meant that 
4

only the punishment stricken, not the entire enhancements themselves. The motion was 

set for hearing on June 6, 2023.

The prosecutor did not file a response to either motion.

Without conducting a hearing, the trial court issued a written order dated May 10, 

2023, and filed on May 19, 2023, denying defendant’s “motion for resentencing.” The 

court stated that defendant was “not eligible for resentencing under [section 1172.75] 

because the [original sentencing] court struck the additional punishment for the two 

prison priors,” citing and quoting this court’s opinion from defendant’s direct appeal in 

which this court stated that the trial court had “imposed then struck the additional 

punishment for the two prison priors.”

A hearing was held on June 6, 2023, which was the date set for a hearing on 

defendant’s second motion for resentencing, which had been filed by the public 

defender’s office. The record on appeal contains the clerk’s minutes for the hearing but 

not a reporter’s transcript. According to the clerk’s minutes, defense counsel was present 

at the hearing, and defendant’s appearance was waived. The hearing was continued to 

June 28, 2023 for “status review.”

However, before the status review took place, defense counsel filed a notice of 

appeal on June 22, 2023, regarding the trial court’s May 19, 2023 order denying 

defendant’s motion for resentencing.

III. DISCUSSION

Defendant acknowledges case law holding that a defendant may not petition for 

relief under section 1172.75 and that instead the process must be initiated by the 

Department of Corrections and Rehabilitation (CDCR). He nevertheless contends that 

his due process rights were violated when the trial court denied his initial motion for 

resentencing without first appointing counsel or holding a hearing. He also argues that he 

is eligible for relief under section 1172.75 because the original sentencing court struck 
5

only the punishment for the prior prison term enhancements, not the enhancement 

themselves.

The Attorney General contends that section 1172.75 requires appointment of 

counsel only after the CDCR notifies the trial court that a defendant is eligible for relief 

and that the record in this case does not reflect that the CDCR so notified the trial court. 

The Attorney General also argues that defendant “did not pursue” the hearing “he was 

offered” for his second motion for resentencing that was filed by the public defender’s 

office, and instead defendant elected to file a notice of appeal. The Attorney General 

further contends that defendant is not entitled to relief under section 1172.75 because his 

prison priors were stayed or the punishment was stricken. As “an alternative . . . middle 

ground,” the Attorney General suggests that, because the parties agree that the 

enhancements are no longer valid, this court could strike the enhancements without 

remanding for resentencing under section 1172.75.

In reply, defendant contends that the “procedural developments” in his case “made 

it unclear as to his eligibility for resentencing relief.” Although defendant still seeks a 

resentencing hearing, he argues that “[a]t a minimum, the Abstract of Judgment should be 

corrected by removing the now invalid section 667.5, subdivision (b) enhancements.”

We determine that the trial court did not have jurisdiction to rule on defendant’s 

first motion for resentencing. “The general rule is that ‘once a judgment is rendered and 

execution of the sentence has begun, the trial court does not have jurisdiction to vacate or 

modify the sentence.’ [Citations.]” (People v. King (2022) 77 Cal.App.5th 629, 634 

(King).) Consequently, a defendant’s “freestanding motion challenging [a] sentence is 

not a proper procedural mechanism to seek relief. A motion is not an independent 

remedy, but must be attached to some ongoing action. [Citation.]” (Id. at p. 640.)

Section 1172.75 authorizes a trial court to recall a sentence and resentence a 

defendant under specified circumstances. In subdivision (a) of section 1172.75, the 

Legislature declared that any prior prison term “enhancement that was imposed prior to 
6

January 1, 2020,” except for an enhancement that was imposed for a prior conviction for 

a sexually violent offense, “is legally invalid.”

In subdivision (b) of section 1172.75, the Legislature required the Secretary of the 

CDCR and county correctional administrators to “identify those persons in their custody 

currently serving a term for a judgment that includes [a legally invalid] enhancement 

described in subdivision (a)” and provide the defendant’s name and case number, among 

other information, “to the sentencing court that imposed the enhancement.”

Subdivision (c) of section 1172.75 provides that upon receiving this information, 

the trial court “shall review the judgment and verify that the current judgment includes a 

sentencing enhancement described in subdivision (a). If the court determines that the 

current judgment includes an enhancement described in subdivision (a), the court shall 

recall the sentence and resentence the defendant.”

In People v. Burgess (2022) 86 Cal.App.5th 375 (Burgess), the appellate court 

held that section 1172.75 “does not contemplate resentencing relief initiated by any 

individual defendant’s petition or motion.” (Burgess, supra, at p. 384.) Instead, “the 

Legislature provided an express system for the orderly implementation of relief for 

affected defendants to receive the benefit of the amended law in a timely manner. Under 

this express procedure, any review and verification by the court in advance of 

resentencing is only triggered by receipt of the necessary information from the CDCR 

Secretary or a county correctional administrator, not by any individual defendant. 

(§ 1172.75, subds. (b)–(c).)” (Ibid.) The appellate court concluded that the “trial court 

lacked jurisdiction to adjudicate [the defendant’s] motion for resentencing,” and that the 

appellate court “lack[ed] jurisdiction over his appeal from the motion’s denial. 

[Citation.]” (Id. at p. 382.)

In People v. Cota (2023) 97 Cal.App.5th 318 (Cota), the defendant similarly “filed 

an unauthorized motion for resentencing” prior to the CDCR identifying him as having a 

prior prison term enhancement. (Id. at p. 332.) However, “[e]ventually, during the 
7

pendency of the motion, the Department of Corrections and Rehabilitation identified 

defendant as an individual potentially eligible for resentencing” before the trial court 

ruled on the motion. (Ibid.) In that circumstance, “when the Department of Corrections 

and Rehabilitation provided this identification to the trial court,” the appellate court 

determined that “it triggered the trial court’s review and resentencing obligations under 

section 1172.75, subdivision (b) thereby placing the matter within a statutorily authorized 

exception to the general rule that a trial court has no jurisdiction to modify a final 

judgment,” and therefore the trial court “had authority over the matter and was statutorily 

authorized to act. [Citations.]” (Id. at pp. 332–333.)

In this case, nothing in the record indicates that the trial court was notified by the 

CDCR under section 1172.75 before defendant’s two motions for resentencing were 

filed, or before the trial court filed its order denying resentencing. To the contrary, a 

motion that defendant filed in this court (a now withdrawn motion to temporarily stay the 

appeal) includes as an attachment a CDCR list containing defendant’s name. Defendant 

cited this list in his motion to temporarily stay the appeal to support his contention that he 

“had been identified by CDCR as an individual eligible for relief.” However, the list is 

dated June 15, 2023, which is after defendant’s two motions for resentencing were filed 

and after the trial court ruled on the first motion. The trial court thus “lacked jurisdiction 

to adjudicate [defendant’s] motion for resentencing.” (Burgess, supra, 86 Cal.App.5th at 

p. 382; see Cota, supra, 97 Cal.App.5th at pp. 332–333.)

Although defendant acknowledges Burgess, he contends that in the present case, 

to the extent the trial court ruled on the merits of his petition for resentencing, “the trial 

court’s denial was not premised on the lack of jurisdiction to consider a petition initiated 

by the defendant.” Defendant does not persuasively articulate why the reason for the trial 

court’s denial of his petition has any legal significance. If the trial court did not have 

jurisdiction to rule on defendant’s motion, it does not matter why the court denied the 

motion.
8

In sum, the “trial court lacked jurisdiction to adjudicate [defendant’s] motion for 

resentencing” (Burgess, supra, 86 Cal.App.5th at p. 382), and therefore “ ‘its ruling is 

void’ ” (King, supra, 77 Cal.App.5th at p. 635). “A trial court order denying relief that 

the court has no jurisdiction to grant does not affect a defendant’s substantial rights and is 

therefore not appealable under section 1237, subdivision (b). [Citations.]” (King, supra, 

at p. 639.) We therefore must dismiss the appeal. (Burgess, supra, at p. 385.) The 

dismissal is without prejudice to the trial court considering anew whether defendant is 

entitled to relief under section 1172.75, now that the CDCR has apparently identified 

defendant as having prior prison term enhancements and has presumably notified the trial 

court accordingly. (See § 1172.75, subds. (b) & (c).)

IV. DISPOSITION

The appeal is dismissed without prejudice to the trial court considering anew 

whether defendant is entitled to relief under Penal Code section 1172.75.
BAMATTRE-MANOUKIAN, ACTING P. J.

WE CONCUR:

GROVER, J.

LIE, J.

People v. Shipley

H051155