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March 4, 2026 Get Citation Alerts Download PDF Add Note

People v. Shaw CA2/4

California Court of Appeal

• Citations: None known
• Docket Number: B341611

• Precedential Status: Non-Precedential

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.5K)

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Combined Opinion

Filed 3/4/26 P. v. Shaw CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B341611

Plaintiff and Respondent,

(Los Angeles County
Super. Ct. No. MA025252)
v.

ANDRE CURTIS SHAW,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County,
Emily J. Cole, Judge. Appeal is dismissed.
Gabrielle D. Trujillo, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt
E. Bloomfield and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff
and Respondent.
In 2006, a jury found Andre Shaw guilty of involuntary manslaughter
and willful, deliberate, and premeditated attempted murder, with firearm
enhancements on both counts. The trial court sentenced Shaw to a term of
27 years to life. In 2024, Shaw filed a request for recall and resentencing
under Penal Code section 1172.1.1 The trial court denied the petition, stating
that it did not have the jurisdiction to recall and resentence Shaw.
Shaw appeals, arguing that the trial court incorrectly concluded it
lacked the discretion to resentence him based on a belief that there were no
applicable changes in the law. He contends this erroneous order affected his
substantial rights and is therefore appealable. Respondent contends the trial
court’s order is not appealable. We agree with respondent that the court’s
denial of Shaw’s petition did not affect his substantial rights. We therefore
dismiss the appeal.
BACKGROUND
In 2004, Shaw was charged by information with murder (§ 187, subd.
(a), count 1); assault with a deadly weapon (an automobile) (§ 245, subd.
(a)(1), count 2); willful, deliberate, premeditated attempted murder (§§ 664,
187, subd. (a), count 3); and three counts of shooting from a motor vehicle
(§ 12034, subd. (c), counts 4, 5 and 6). The information further alleged
firearm use enhancements as to each count (§§ 1203.06, subd. (a)(1), 12022.5,
subd. (a)(1)), § 12022.53, subds. (b)-(d)).
The jury found Shaw guilty of involuntary manslaughter on count 1
and attempted murder on count 3, and not guilty on the remaining counts.
The jury also found true the allegations that Shaw personally used a firearm
in the commission of count 1 within the meaning of section 12022.5,
subdivision (a) and personally used and intentionally discharged a firearm in
the commission of count 3 within the meaning of section 12022.53,
subdivisions (b) and (c). The trial court sentenced Shaw to a term of 27 years
to life in prison for the attempted murder, including a term of 20 years for the
section 12022.53, subdivision (c) enhancement, as well as a concurrent term
of seven years for involuntary manslaughter. This court affirmed the

1
All undesignated statutory references are to the Penal Code.
2
judgment on direct appeal, with a modification to the amount of the fees
imposed. (People v. Shaw (Jan. 12, 2009, B193550) [nonpub. opn.].)
In July 2024, Shaw filed a form petition for recall and resentencing. He
checked the boxes indicating he was eligible for resentencing under section
1172.1 because of changes in the law since his sentencing, specifically
sections 1385 and 1170 and 1170.1. Shaw attached a letter expressing
remorse for his crimes and detailing his efforts at improvement in prison, as
well as a “relapse prevention plan.” He also attached program certificates,
laudatory chronos, and other materials.
On August 23, 2024, the court issued a written order summarily
denying Shaw’s petition for re-sentencing. The order stated, “This Court does
not have the jurisdiction to recall and resentence the defendant as he was
properly sentenced in 2006. [¶] None of the new laws passed have any effect
on the charges or allegations that the defendant was convicted of. The
defendant is still serving a sentence based on current valid law. [¶] The
Court would like to congratulate the defendant on the programs he is
participating in and encourages him to continue to do so.” Shaw timely filed
a notice of appeal.
DISCUSSION
Shaw appeals from the denial of his request for recall and resentencing
pursuant to section 1172.1, asserting the court misapprehended its
sentencing discretion under the resentencing statute. Respondent counters
that the appeal must be dismissed because a trial court’s denial of a
defendant-initiated request for resentencing under section 1172.1 is not
appealable and does not affect the defendant’s substantial rights. We agree
with respondent that the appeal must be dismissed.
Where, as here, execution of sentence has commenced and the
judgment is final, the trial court is generally “deprived of jurisdiction to
resentence” a criminal defendant. (People v. Karaman (1992) 4 Cal.4th 335,
344, citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455; accord, People v.
E.M. (2022) 85 Cal.App.5th 1075, 1082 (E.M.).) “Because of this ‘rule
precluding postjudgment motions,’ a trial court generally lacks jurisdiction to
hear one unless ‘the Legislature has expressly authorized’ the motion.”

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(People v. Faustinos (2025) 109 Cal.App.5th 687, 694 (Faustinos), quoting
People v. Picklesimer (2010) 48 Cal.4th 330, 337 & fn.2 (Picklesimer).)
Section 1172.1 (former § 1170, subd. (d)) provides an exception to this
general rule by authorizing a recall and resentencing procedure that may be
invoked when, for example, the Secretary of the Department of Corrections
and Rehabilitation recommends resentencing. (§ 1172.1, subd. (a)(1); E.M.,
supra, 85 Cal.App.5th at p. 1082.) Effective January 1, 2024, the Legislature
amended section 1172.1 to expand a court’s ability to resentence a defendant
“on its own motion.” (See Assembly Bill No. 600 (2023-2024 Reg. Sess.; Stats.
2023, ch. 446, § 2.) Accordingly, section 1172.1, subdivision (a)(1) provides the
court may, “on its own motion, ... 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.”
Though the court can act on its own motion, defendants may not
petition under section 1172.1. The statute expressly states, “A defendant is
not entitled to file a petition seeking relief from the court under this section.”
(§ 1172.1, subd. (c).) Further, “If a defendant requests consideration for relief
under this section, the court is not required to respond.” (Ibid.) Accordingly,
a defendant who files “an unauthorized request for resentencing has no right
to a ruling.” (People v. Hodge (2024) 107 Cal.App.5th 985, 996 (Hodge).) The
court in Hodge then concluded that because a trial court’s decision not to
exercise its discretion to recall a defendant’s sentence did not affect a
defendant’s substantial rights, there was no statutory right to appeal under
section 1237, subdivision (b). (Ibid.)
We join the other Courts of Appeal that have unanimously followed
Hodge and concluded that a trial court’s decision declining to consider a
defendant’s resentencing request under section 1172.1 is not appealable.
(People v. Brammer (2025) 117 Cal.App.5th 675, 696; People v. Brinson (2025)
112 Cal.App.5th 1040, 1045; People v. Roy (2025) 110 Cal.App.5th 991, 994;
Faustinos, supra, 109 Cal.App.5th 687, 693; People v. Wilson (2025) 109

4
Cal.App.5th 198, 202.) The trial court’s order denying Shaw’s postjudgment
request to modify his sentence under section 1172.1 did not affect his
substantial rights and therefore did not constitute an appealable order.
(§ 1237, subd. (b).)
Shaw points to the trial court’s statement that it did “not have the
jurisdiction to recall and resentence the defendant as he was properly
sentenced in 2006,”and that none of the new laws passed would affect his
sentence. Shaw argues that the trial court therefore “accepted [his]
invitation to act under section 1172.1 and then articulated a plainly incorrect
reason for its decision.” We disagree. The specific language used by the court
in denying Shaw’s request for relief does not change our conclusion that its
order is not appealable. (See Faustinos, supra, 109 Cal.App.5th at p. 697
[“We do not think that a court’s phrasing of an order can convert a non-
appealable order into an appealable one.”].) Indeed, the court in Faustinos
addressed this issue. There, the trial court denied the defendant’s section
1172.1 motion, stating it “[did] not have jurisdiction to consider [the] motion.”
(Id. at p. 693.) The Court of Appeal concluded the order was not appealable,
explaining, “A defendant is not entitled to file a section 1172.1 petition nor to
receive a ruling if he nevertheless files one. It follows that an appeal from an
order acting on his petition (whether couched as a denial, dismissal, or any
other statement that the court is not acting) does not affect the defendant's
substantial rights. We lack the authority to rule on the merits of appeals
from orders filed in response to a defendant’s attempt to seek resentencing
under section 1172.1.” (Id. at p. 696.)
The Faustinos court also rejected the defendant’s argument that the
trial court’s order may have indicated that the court erroneously believed
that it lacked the authority to act on its own motion, and that such error
would render the order appealable. (Faustinos, supra, 109 Cal.App.5th at p.
697.) Even assuming such an error, the court found that it would not
“convert a non-appealable order to an appealable one” because “appealability
depends upon the nature of the decision made, not the court's justification for
its ruling.” (Id. at p. 698, citing People v. Gallardo (2000) 77 Cal.App.4th 971,
985.) We agree with Faustinos and conclude that a court cannot “transform a
non-appealable order (stating that it would not act on an unauthorized

5
motion) into an appealable one by addressing a matter that it needed [sic] not
address (its jurisdiction to act on its own), even if it was wrong about that
matter.” (Faustinos, supra, 109 Cal.App.5th at p. 698.) As that court noted,
“a defendant has a remedy if a trial court wrongly declares that it lacks
jurisdiction to act on its own motion under section 1172.1. That remedy is to
petition for a writ of habeas corpus in the trial court.” (Id. at p. 699, citing
Picklesimer, supra, 48 Cal.4th at pp. 354-355 [post-judgment issue non-
appealable so habeas petition is the “preferred remedy”].)
Contrary to Shaw’s claim, the court here did not initiate recall and
resentencing proceedings on its own motion. Instead, the court denied Shaw’s
request. The cases in which courts have “accepted [a defendant’s] invitation
to act” on a petition under section 1172.1, thereby resulting in an appealable
order, involved full briefing and argument by the parties, a hearing on the
petition, and the court’s full evaluation of the merits. (See People v. Craig
(2026) 117 Cal.App.5th 1165; People v. Olea (2025) 115 Cal App 5th 889, 901-
902 [court “appointed counsel, released prison records to the parties, and
scheduled a contested hearing, which the defendant attended remotely.”])
Here, the trial court summarily denied Shaw’s petition. That denial was not
appealable. We also are not persuaded by Shaw’s citation to People v. Loper
(2015) 60 Cal.4th 1155. Loper involved the appealability of a post-judgment
proceeding that was “properly initiated” by government authorities rather
than by the defendant. (Loper, supra, 60 Cal.4th at p. 1158.) No such
proceeding was initiated here.
Finally, we disagree with Shaw’s contention that the trial court’s
statement congratulating him on his participation in programs was an action
by the court to “engage[ ] with the evidence of rehabilitation.” Shaw cites no
authority in support of this contention and we are not persuaded that the
court’s statement of congratulations and encouragement to Shaw reflects a
full consideration of his petition on the merits. Thus, because the trial court’s
order denying Shaw’s motion was not appealable, we must dismiss the
appeal.

6
DISPOSITION
The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

ZUKIN, P. J.

TAMZARIAN, J.

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