Filed 8/4/26 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E085867
v. (Super.Ct.No. SWF005007)
SHAWN MORGAN BURTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Monterosso,
Judge. Reversed and remanded with directions.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and Arlene A. Sevidal,
Assistant Attorneys General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys
General, for Plaintiff and Respondent.
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At a hearing pursuant to Penal Code section 1172.75,1 the court found defendant
and appellant Shawn Morgan Burton ineligible for resentencing. On appeal, defendant
contends the court erred in declining to give him a resentencing hearing. We reverse and
remand.
I. PROCEDURAL BACKGROUND
On January 6, 2004, defendant pled guilty to forcible rape (§ 261, subd. (a)(2),
count 2), penetration by a foreign object (§ 289, subd. (a)(1), count 5), and elder abuse
(§ 368, subd. (b)(1), count 6). Defendant also admitted that he had suffered a prior
serious felony conviction (§ 667, subd. (a)(1)), a prior strike conviction (§§ 667,
subds. (b)-(i) & 1170.12, subds. (a)-(d)), and a prior prison term (§ 667.5, subd. (b)).
Pursuant to the plea agreement, the court sentenced defendant to 28 years in prison,
including one year on the prior prison term.
On December 13, 2022, the court recalled defendant’s sentence pursuant to section
1172.75.2 The court struck defendant’s prior prison term, reducing defendant’s sentence
by one year. The court continued the matter for potential resentencing.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 It was unclear from the record as originally filed how the section 1172.75
proceedings had been initiated. “[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 [CDCR] identifying a defendant as a
person serving a sentence that includes a prior prison term enhancement. [Citation.]”
(People v. Cota (2023) 97 Cal.App.5th 318, 332; accord, People v. Newell (2023) 93
Cal.App.5th 265, 268; People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and
appellate courts lack jurisdiction over a request for section 1172.75 relief brought solely
by a defendant].) On our own motion, we took judicial notice of a CDCR list, which
[footnote continued on next page]
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After several more continuances, the court noted at a hearing on March 13, 2025,
that defendant was no longer in prison; he had been released on parole. Defense counsel
confirmed the court’s assertion. The People argued that since defendant was no longer
serving a term of imprisonment, he was no longer entitled to resentencing pursuant to
section 1172.75. The court found defendant was “not entitled to further resentencing
because he’s not currently serving a judgment in the state prison.”
II. DISCUSSION
Defendant contends that the order finding him ineligible for a resentencing hearing
must be reversed and the matter remanded for a full resentencing hearing. The People
concede. We agree.
“In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the
Legislature passed Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136),
which amended section 667.5[, subdivision ](b) to eliminate prior-prison-term
enhancements for all prior crimes except for ‘sexually violent offense[s] as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code.’ (Stats. 2019,
ch. 590, § 1.) In 2021, Senate Bill No. 483 (2021-2022 Reg. Sess.) made this change
retroactive. It enacted Penal Code section 1171.1 (Stats. 2021, ch. 728, §§ 1, 3), later
renumbered without substantive change as Penal Code section 1172.75 (section 1172.75)
(Stats. 2022, ch. 58, § 12), which declares: ‘Any sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for
identifies individuals potentially eligible for section 1172.75 relief; defendant’s name
appears on that list.
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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.’
[Citation.]” (People v. Rhodius (2025) 17 Cal.5th 1050, 1054 (Rhodius).)
“A defendant serving a term for a judgment that includes a now-invalid
enhancement is entitled to resentencing. [Citation.] To facilitate the process, the statute
directs California’s Department of Corrections and Rehabilitation (CDCR) to ‘identify
those persons in their custody currently serving a term for a judgment that includes an
enhancement described in subdivision (a).’ [Citation.] Upon receiving that information,
the sentencing court must ‘review the judgment and verify that the current judgment
includes a sentencing enhancement described in subdivision (a).’ [Citation.] ‘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.’ [Citation.] The
statute provides separate deadlines for identification, review, and resentencing of
‘individuals . . . currently serving a sentence based on the enhancement’ and ‘all other
individuals.’ [Citation.]” (Rhodius, supra, 17 Cal.5th at p. 1055.)
“Section 1172.75, subdivision (d) sets forth detailed instructions for resentencing
once a sentence has been recalled. As relevant here, subdivision (d) specifies:
‘Resentencing pursuant to this section shall result in a lesser sentence than the one
originally imposed as a result of the elimination of the repealed enhancement, unless the
court finds by clear and convincing evidence that imposing a lesser sentence would
endanger public safety. Resentencing pursuant to this section shall not result in a longer
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sentence than the one originally imposed.’ [Citation.] The trial court must ‘apply the
sentencing rules of the Judicial Council’ as well as ‘any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.’ [Citation.] In addition, the court may ‘consider
postconviction factors, including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that reflects whether age,
time served, and diminished physical condition, if any, have reduced the defendant’s risk
for future violence, and evidence that reflects that circumstances have changed since the
original sentencing so that continued incarceration is no longer in the interest of justice.’
[Citation.]” (Rhodius, supra, 17 Cal.5th at p. 1055.)
“[S]ection 1172.75 entitles a defendant to resentencing if the underlying judgment
includes a prior-prison-term enhancement that was imposed before January 1, 2020,
regardless of whether the enhancement was then executed or instead stayed.” (Rhodius,
supra, 17 Cal.5th at p. 1054.)
“Section 1172.75 requires that the defendant be incarcerated at the beginning of
the process, when correctional officials ‘identify those persons in their custody currently
serving a term for a judgment that includes’ a one-year prior prison term enhancement
imposed under section 667.5, former subdivision (b) . . . . [Citation.] It does not require
the defendant thereafter remain incarcerated until the time of resentencing to maintain his
or her eligibility for relief. Nor is resentencing such a subsequently released defendant an
empty exercise, as it can afford practical relief that includes shortening the applicable
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parole term.” (People v. Washington (2026) 117 Cal.App.5th 1057, 1061 (Washington).)
Thus, a person who has been released on parole prior to the resentencing hearing
“remains eligible and should still be resentenced.” (Ibid.)
“Under the section 1172.75 resentencing scheme, there is necessarily a lag
between the time the CDCR provides the court with information about a defendant
potentially eligible for resentencing, and the time when the court can determine whether
in fact the defendant is entitled to resentencing and in fact resentence him or her.
Recognizing this aspect of the process, the Legislature included in section 1172.75
deadlines for the CDCR and resentencing courts to act.” (Washington, supra, 117
Cal.App.5th at p. 1066.)
Here, defendant’s judgment included a prior prison term enhancement that was
imposed and executed before January 1, 2020. The prior prison term enhancement was
not for a sexually violent offense. Defendant was apparently still incarcerated on
December 13, 2022, when the court initially recalled defendant’s sentence; however, he
had been released on parole in the ensuing two years while his resentencing hearing was
pending. The court below did not have the benefit of Washington when it issued its
ruling. Thus, the matter must be reversed and remanded for a full resentencing hearing.
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III. DISPOSITION
The matter is reversed and remanded to the trial court with directions to hold a full
resentencing hearing. We express no opinion on whether defendant would be entitled to
any further relief at the resentencing hearing on remand.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
LEE
J.
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