Filed 8/7/26 P. v. Shaw CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C105604
Plaintiff and Respondent,
(Super. Ct. Nos. 21FE010287,
v. 22FE016328)
RUSSELL JAMES SHAW,
Defendant and Appellant.
Appointed counsel for defendant Russell James Shaw asks this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436.) Because we conclude the trial court’s order is not appealable, we
dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2021, Shaw shot a gun three or four times in the direction of two men. He was
arrested and released on bond. In case No. 21FE010287 (case No. 287), Shaw was
charged with two counts of assault with a firearm (Pen. Code,1 § 245, subd. (b); counts
one & two), with firearm use enhancements (§ 12022.5, subds. (a), (d)). Shaw was also
charged with being a felon in possession of a firearm (§ 29800, subd. (a)(1); count three),
and it was alleged that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
1 Undesignated statutory references are to the Penal Code.
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Around one year later, Shaw struck his girlfriend in the knee with a pair of metal
gardening shears, causing a two-inch gash. In case No. 22FE016328 (case No. 328),
Shaw was charged with assault with a deadly weapon (§ 245, subd. (a)(1); count one) and
making a criminal threat (§ 422; count two). It was also alleged that he had a prior strike
conviction (§§ 667, subds. (b)-(i); 1170.12) and was on bail in case No. 287 when he
committed the assault.
Pursuant to the stipulation of the parties, on April 22, 2025, Shaw pled no contest
to assault with a firearm in case No. 287 in exchange for a six-year prison sentence.
Shaw also pled no contest in case No. 328 to assault with a deadly weapon and admitted
the on-bail enhancement, in exchange for a four-year prison sentence. Shaw also
admitted the prior strike conviction in both cases. The remaining counts were dismissed
with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
On May 19, 2025, the trial court sentenced Shaw to an aggregate term of 10 years,
consisting of the following: in case No. 287, six years (the low term of three years
doubled due to the strike); and in case No. 328, two years (one-third the middle term
doubled due to the strike) to run consecutively, plus two years consecutive for the on-bail
enhancement. The trial court awarded two days of actual custody credit and two days of
conduct credit in case No. 287, and 964 days of actual custody credit and 964 days of
conduct credit in case No. 328, for a total of 1,932 days of presentence custody credit.
The court ordered Shaw to pay a $300 restitution fine in each case (§ 1202.4), imposed
and stayed a corresponding $300 parole revocation restitution fine in each case
(§ 1202.45), and imposed an $80 court operations assessment (§ 1465.8) and a $60
criminal conviction assessment (Gov. Code, § 70373).
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Shaw filed a pro se motion to recall his sentence that was mailed on September 15,
2025, and received by the trial court on September 30, 2025.2 Shaw argued (1) he should
have received a lower term sentence due to psychological trauma and (2) his custody
credits were being applied incorrectly. In a written order dated January 7, 2026, the court
dismissed the motion, stating that it had not received a recommendation for recall and
resentencing from an appropriate authorized agency, it declined to make its own motion,
and it lacked jurisdiction to do so more than 120 days after sentencing absent new
statutory authority or case law.
Shaw timely appealed the denial of his motion to recall his sentence.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel noted that there may
be an issue with the appealability of the matter. Shaw was advised by counsel of the right
to file a supplemental brief within 30 days of the filing of the opening brief. More than
30 days have elapsed, and we have received no communication from Shaw.
Before we may consider the merits of Shaw’s appeal, we must first determine
whether the trial court’s order denying his section 1172.1 motion is appealable. (People
v. Clark (2021) 67 Cal.App.5th 248, 254 [“Because an appealable judgment or order is
essential to appellate jurisdiction, the appellate court must consider the question of
appealability sua sponte, and dismiss the appeal if the judgment or order is found to be
nonappealable”].)
2 Shaw’s motion for recall and resentencing referred to section 1170, subdivision (d), but
we conclude that Shaw intended to refer to section 1172.1, the current version of that
section. (See, e.g., People v. E.M. (2022) 85 Cal.App.5th 1075, 1082 [in enacting
§ 1172.1, the Legislature amended and renumbered former § 1170, subd. (d)].)
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“The right to appeal is statutory only, and a party may not appeal a trial court’s
judgment, order or ruling unless such is expressly made appealable by statute.” (People
v. Loper (2015) 60 Cal.4th 1155, 1159.) Section 1172.1, subdivision (a)(1) provides that
the trial court may, “on its own motion, within 120 days of the date of commitment or at
any time if the applicable sentencing laws at the time of original sentencing are
subsequently changed by new statutory authority or case law, … recall the sentence and
commitment previously ordered and resentence the defendant in the same manner as if
they had not previously been sentenced, whether or not the defendant is still in custody,
and provided the new sentence, if any, is no greater than the initial sentence.”
Section 1172.1, subdivision (c) expressly states, however: “A defendant is not
entitled to file a petition seeking relief from the court under this section. If a defendant
requests consideration for relief under this section, the court is not required to respond.”
Thus, “ ‘a defendant who chooses to file an unauthorized request for resentencing has no
right to a ruling.’ ” (People v. Roy (2025) 110 Cal.App.5th 991, 998, quoting People v.
Hodge (2024) 107 Cal.App.5th 985, 996.)
Section 1172.1 does not address whether a trial court’s dismissal of a defendant’s
request for recall and resentencing under the statute is appealable. But several courts,
including this court, have interpreted the second sentence in section 1172.1,
subdivision (c) to mean that defendants do not have a substantial right at stake when they
request recall and resentencing. (People v. Roy, supra, 110 Cal.App.5th at pp. 998-999;
People v. Hodge, supra, 107 Cal.App.5th at p. 996; People v. Faustinos (2025) 109
Cal.App.5th 687, 696.) As Hodge explained: “That sentence excuses the trial court from
any responsibility to rule on such a request, or even to respond. It follows that a
defendant who chooses to file an unauthorized request for resentencing has no right to a
ruling. The defendants may have a liberty interest at stake in any decision as to whether
they should remain incarcerated. But a defendant has no right to demand that the trial
court actually make such a decision. If the defendant has no right to a decision, the trial
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court’s choice not to make one does not deprive the defendant of any right, much less a
substantial one.” (Hodge, at p. 996; see Roy, at p. 998.) Hodge further explained that a
contrary conclusion would result in an arbitrary rule where, if a trial court does not
respond to a defendant’s request for recall and resentencing, there would be no order to
appeal, but if the court informs a defendant that it will take no action on the request, the
defendant would be able to appeal that decision. (Hodge, at p. 996.) The court in Hodge
found “such an irrational and arbitrary result” seemed unlikely to have been intended by
the Legislature. (Ibid.)
We remain persuaded by the reasoning of these cases and conclude that, because
Shaw had no right to a response from the trial court, an order dismissing his request
under section 1172.1 cannot be said to affect his substantial rights. This is so even if the
trial court’s order could be construed as erroneously stating it lacked authority to
resentence Shaw on its own motion. (See People v. Faustinos, supra, 109 Cal.App.5th at
p. 698.) Accordingly, the trial court’s order was not an appealable order and the appeal
must be dismissed.
DISPOSITION
The appeal is dismissed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
EARL, P. J.
/s/
MESIWALA, J.
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