California Court of Appeal May 13, 2024 No. E082700Unpublished
Filed 5/13/24 P. v. Hampton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082700
v. (Super.Ct.No. FWV20001565)
DURRELL DESHAWN HAMPTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon. D. Ferguson,
Judge. Dismissed.
Durrell Deshawn Hampton, in pro. per.; and Cindi B. Mishkin, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Durrell Deshawn Hampton appeals from a postjudgment
order denying his petition to strike a sentencing enhancement, pursuant to Senate Bill
No. 1393. His appellate counsel filed a brief under People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo), and defendant filed a supplemental brief. We have reviewed
Defendant was charged by second amended felony complaint with various
felonies, including assault with a firearm (Pen. Code1, § 245, subd. (a)(2)) and inflicting
corporal injury on a spouse (§ 273.5, subd. (a)), as well as allegations of inflicting great
bodily injury (GBI) (§ 12022.7, subd. (a)) and personally using a firearm (§ 12022.5,
subd. (a)). On August 26, 2021, an allegation of inflicting GBI under circumstances
involving domestic violence (§ 12022.7, subd. (e)) was added, upon motion of the
People. The defendant subsequently entered into a plea agreement with the People and
pled no contest to one count of assault with a firearm (§ 245, subd. (b), count 1) and
admitted as true the section 12022.7, subdivision (e) GBI allegation. The court dismissed
the remaining counts and allegations, pursuant to a motion by the People. The trial court
then sentenced defendant in accordance with the terms of the plea agreement to three
years on count 1, plus a consecutive five years on the GBI enhancement, for a total term
of eight years in state prison.
1 All further statutory references will be to the Penal Code, unless otherwise indicated.
2
On November 1, 2023, defendant filed an in propria persona “Petition to
Strike/Remove 5-Year Enhancement and Sentence” (all caps omitted) pursuant to
Senate Bill No. 1393. On November 3, 2023, the court dismissed the petition.
Defendant filed a notice of appeal of the denial of the petition, in propria persona.
DISCUSSION
Defendant was provided notice under Delgadillo and advised that his counsel filed
a brief stating no arguable issues could be found, and that because this is an appeal from a
postconviction proceeding, this court is not required to conduct an independent review of
the record but may do so in its discretion. (Delgadillo, supra, 14 Cal.5th at p. 232.) The
notice advised him that he could file a supplemental brief within 30 days. Defendant has
done so. Where a defendant has filed a supplemental brief, a court of appeal need only
evaluate the specific arguments presented in the brief. (Ibid.) “The filing of a
supplemental brief or letter does not compel an independent review of the entire record to
identify unraised issues.” (Ibid.) Defendant filed a one-page handwritten letter which
simply states that he needs a “reconsideration of [his] conviction” (all caps omitted)
because “a number of Assembly Bills and Senate Bills have been applied to [his]
conviction and [he] qualif[ies] for a number of them.” (All caps omitted.)
On the court’s own motion, this appeal filed from the trial court’s denial of
defendant’s postjudgment, nonstatutory petition to strike a sentencing enhancement
pursuant to Senate Bill No. 1393 is dismissed because it does not affect defendant’s
substantial rights. (Pen. Code, § 1237, subd. (b).) The trial court lacked jurisdiction to
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modify defendant’s sentence. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1725
(Chlad).) As explained more fully in People v. Burgess (2022) 86 Cal.App.5th 375
(Burgess), once a criminal judgment becomes final, courts no longer have jurisdiction to
vacate or modify a sentence absent an exception to the jurisdictional bar. (Id. at p. 381;
see People v. King (2022) 77 Cal.App.5th 629, 634 (King).) Section 1172.75 prescribes
the procedure for resentencing affected defendants. The Secretary of the Department of
Corrections and Rehabilitation (CDCR) and the county correctional administrator must
first identify individuals serving terms that include no-longer-valid enhancements and
then provide certain information about those individuals to the sentencing court that
imposed the enhancement. (§ 1172.75, subd. (b); see People v. Newell (2023) 93
Cal.App.5th 265, 268.) “[S]ection 1172.75 does not authorize a defendant to seek
resentencing on his or her own motion or petition. Rather the process is triggered by the
Department of Corrections and Rehabilitation identifying a defendant as a person serving
a sentence that includes a prior prison term enhancement.” (People v. Cota (2023) 97
Cal.App.5th 318, 332.) Nothing in this statute authorizes a defendant to bring this motion
whether the defendant was sentenced before or after January 1, 2020.2
Accordingly, in Burgess, since the defendant’s resentencing petition was
unauthorized by statute, the trial court did not have jurisdiction to adjudicate it. (Burgess,
2 Section 1172.75, subdivision (a), provides as follows: “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”
4
supra, 86 Cal.App.5th at p. 382.) As such, the appellate court did not have jurisdiction
over the defendant’s appeal from the denial of the motion. (Ibid.; King, supra, 77
Cal.App.5th at p. 634.) Thus, the court dismissed the appeal. (Burgess, at p. 385; see
King, at p. 634.)
Here, defendant sought to strike a sentencing enhancement under the authority of
Senate Bill No. 1393. Penal Code section 1172.75 does not authorize an individual
defendant to seek such relief. Thus, the trial court did not have jurisdiction to adjudicate
defendant’s motion. (Burgess, supra, 86 Cal.App.5th at pp. 381-382; see King, supra, 77
Cal.App.5th at p. 634.) Since the court lacked jurisdiction when it denied defendant’s
petition, the court’s order could not have affected his substantial rights. (Chlad, supra, 6
Cal.App.4th at pp. 1725-1726.) Accordingly, the court’s order on defendant’s petition to
strike a sentencing enhancement is not an appealable order, and the appeal must be
dismissed. (Id. at p. 1725; see People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; see
also King, at p. 634.)
DISPOSITION
The appeal is ordered dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS FIELDS J. We concur:
MILLER Acting P. J.
MENETREZ J.
5
AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal because the trial court lacked jurisdiction to adjudicate the defendant's unauthorized postjudgment petition to strike a sentencing enhancement, rendering the order non-appealable.
Issues
Whether a defendant may file a motion to strike a sentencing enhancement under Penal Code section 1172.75.
Whether the denial of an unauthorized postjudgment petition to strike a sentencing enhancement is an appealable order.
Disposition. Dismissed
Quotations verified verbatim against the opinion
“the trial court did not have jurisdiction to adjudicate defendant’s motion.”
“the court’s order on defendant’s petition to strike a sentencing enhancement is not an appealable order, and the appeal must be dismissed.”