People v. Shipley CA6

Filed 9/25/24 P. v. Shipley CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H051155 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC940297)

v.

CRAIG SHIPLEY,

Defendant and Appellant.

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.

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.”