California Court of Appeal Aug 23, 2024 No. E082518Unpublished
Filed 8/23/24 P. v. Burton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082518
v. (Super.Ct.No. FBA1000492)
DEREK TYRONE BURTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer,
Judge. Affirmed.
Derek Tyrone Burton, in pro. per.; and Andrea S. Bitar, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Derek Tyrone Burton appeals from the trial court’s order
denying his petition for resentencing pursuant to Penal Code1 former section 1171.1 (now
section 1172.75).2 For the reasons set forth post, we affirm the trial court’s order.
STATEMENT OF THE CASE
On May 16, 2011, “[a] jury convicted defendant of one count of first degree
On August 19, 2011, the trial court sentenced defendant to an indeterminate term
of 25 years to life on the burglary conviction, plus five years on one of the prior felony
conviction findings. The court struck the second prior conviction finding. The abstract
of judgment indicated that the five-year enhancement was imposed under section 667,
subdivision (a)(1).
“On June 13, 2013, defendant filed an in pro. per. petition for resentencing under
section 1170.126. The court denied the petition because defendant’s current conviction
was for a serious offense, which made him ineligible for resentencing. (§ 1170.126,
subd. (e)(1).)” (Burton, supra, E059285.) On appeal, we affirmed the court’s order.
(Ibid.)
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Former section 1171.1 was later amended and renumbered as section 1172.75. (Stats. 2022, ch. 58, § 12.) Former section 1171.1 will be referred to as section 1172.75.
2
On July 28, 2023, defendant filed a petition for resentencing under
section 1172.75. Defendant alleged that he was eligible for resentencing because he had
been sentenced to enhancements under Penal Code section 667.5, subdivision (b), and
Health and Safety Code section 11370.2.
On September 8, 2023, the trial court held that defendant was ineligible for relief
as a matter of law because he had not been sentenced to any enhancements under either
Penal Code section 667.5, subdivision (b), or Health and Safety Code section 11370.2.
On November 2, 2023, defendant filed a timely notice of appeal.
DISCUSSION
Counsel has filed a brief under the authorities of People v. Wende (1979)
25 Cal.3d 436, Anders v. California (1967) 386 U.S. 739 (Anders), and People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). In the brief, pursuant to Anders, appellate
counsel has identified the following issue to assist the court in its search of the record for
error: “Did the trial court err when it denied [defendant’s] petition to be resentenced
under section 1171.1 (1172.75)?” (All caps omitted.)
On April 9, 2024, we sent notice to defendant regarding the filing of a Delgadillo
brief, as follows: “Counsel for appellant has filed a brief stating no arguable issues can
be found. Because this is an appeal from the denial of a post-conviction proceeding, this
court is not required to conduct an independent review of the record but may do so in its
discretion. (People v. Delgadillo (2022) 14 Ca1.5th 216 []; People v. Serrano (2012) 211
Ca1.App.4th 496.) The appellant is personally granted 30 days to file any supplemental
3
brief deemed necessary. If appellant files a supplemental brief, this court will evaluate
the specific arguments presented in that brief in its opinion. (Delgadillo, supra,
14 Ca1.5th 216[].) Failure to timely file a supplemental brief may result in the dismissal
of the appeal as abandoned.”
On July 15, 2024, defendant filed a four-page supplemental brief with
attachments. In the brief, defendant asks this court “to consider exercising plenary
[discretion] to recall and vacate [defendant’s] severe sentence and conviction pursuant to
AB #600 of 2023, effective on January 2024 . . . .” Defendant then contends that he “had
no right to petition/motion the court for any relief pursuant to § 1171.1 (1172.75) as
amended.”3
In this case, defendant’s appeal stems from the trial court’s denial of defendant’s
petition for resentencing under section 1172.75. On appeal, we lack jurisdiction to
consider issues outside of the denial of defendant’s petition for resentencing under
section 1172.75. Therefore, we cannot consider the motion included with defendant’s
supplemental brief.
Based on the above and our independent review of the record, we find that the trial
court correctly determined defendant is ineligible for relief under section 1172.75.
(Delgadillo, supra, 14 Cal.5th at p. 233.)
3 We note that defendant has included a motion for recall of sentence under section 1385 as part of his supplemental brief.
4
DISPOSITION
The trial court’s order denying defendant’s section 1172.75 petition for
resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS McKINSTER J.
We concur:
RAMIREZ P. J.
FIELDS J.
5
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1172.75, finding the defendant ineligible for relief because he was not sentenced to any enhancements under the specified statutes.
Issues
Did the trial court err when it denied defendant's petition to be resentenced under section 1172.75?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the trial court correctly determined defendant is ineligible for relief under section 1172.75.”
“the trial court held that defendant was ineligible for relief as a matter of law because he had not been sentenced to any enhancements under either Penal Code section 667.5, subdivision (b), or Health and Safety Code section 11370.2.”