People v. Ellis CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD156047
- Trial judge
- Lisa R. Rodriguez
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), William S. Dato, Truc T. Do
Analysis
The trial court summarily denied Ellis's petition for resentencing under Penal Code section 1172.75, finding he was not eligible for relief. The Court of Appeal affirmed the denial, concluding that the appellant's new argument regarding Penal Code section 654 was not raised in the petition and that no arguable issues for reversal existed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.75“The trial court summarily denied the petition for resentencing, finding Ellis was not eligible for relief under the statute.” | de novo | correct | agree with court The appellate court affirmed the denial, noting that the appellant's new argument regarding Penal Code section 654 was not raised in the petition and that no arguable issues for reversal existed. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to request leave to withdraw.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of Wende/Anders review, correctly identifying that the appellant's new section 654 argument was not raised in the underlying petition. However, it is a 'sound with gaps' opinion because it does not explicitly state the standard of review for the summary denial of a section 1172.75 petition, relying instead on a general record review.
How this analysis was made · dispute it
unusual dispositionThe trial court summarily denied Justin Ellis's petition for resentencing under Penal Code section 1172.75, finding him ineligible because the prison-prior enhancements that statute addresses had already been stricken and formed no part of his 31-years-to-life third-strike sentence. On appeal, counsel filed a Wende brief, Ellis filed a letter brief raising a new section 654 multiple-punishment theory, and the Court of Appeal, finding no arguable issues after independent review, affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of petition for resentencing under Penal Code section 1172.75 on the ground that Ellis was not eligible for relief“The prison priors which would have been a subject of such petition had already been stricken and did not form a part of the sentence. The trial court summarily denied the petition for resentencing, finding Ellis was not eligible for relief under the statute.” | unclear | correct | agree with court Section 1172.75 invalidates and permits resentencing on section 667.5, subdivision (b) prison-prior enhancements. The opinion states the prison priors were stricken and Ellis's sentence (25 to life under the Three Strikes law, plus a section 12022(b)(1) weapon enhancement and a section 667(a)(1) serious felony prior) contains no such enhancement, so the statute offers him nothing. On these facts the denial is correct, and Wende/Anders independent review found nothing else. The opinion does not discuss whether a defendant may initiate a 1172.75 petition at all, but that omission does not change the outcome. |
Ellis's new argument on appeal that the Three Strikes sentence constitutes multiple punishment under section 654“Regardless of the merits, if any, of such argument, the petition for resentencing was based on different statutory grounds. It does not raise any arguable issues for reversal on appeal.” | unclear | not reached | agree with court The section 654 theory was not presented to the trial court and is unrelated to the statutory basis of the 1172.75 petition, so it cannot support reversal of the order under review. Declining to reach it is procedurally proper, though the court could have noted the argument also fails on the merits because recidivist sentencing based on prior convictions is not multiple punishment for the same act. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should identify anything in the record that might arguably support the appeal to assist the court's review.
- missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally required in appeals from denials of postconviction resentencing relief; when the defendant files a supplemental brief the court must evaluate the specific arguments presented, and may but need not independently review the record.
- missed: People v. Burgess (2022) 86 Cal.App.5th 375 — Section 1172.75 does not authorize a defendant to file his own petition for resentencing; relief is triggered by CDCR's identification of eligible inmates, and a trial court lacks jurisdiction over a defendant's freestanding motion.
The appellate opinion: sound with gaps — The result is plainly correct because Ellis's sentence contains no section 667.5(b) enhancement and his new section 654 theory was not before the trial court. The court, however, applied the Wende/Anders framework to a postconviction resentencing appeal without acknowledging Delgadillo, decided four months earlier, and did not address whether a defendant may even initiate a 1172.75 petition under Burgess.
Opinion
Filed 4/24/23 P. v. Ellis CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081219
Plaintiff and Respondent, v. (Super. Ct. No. SCD156047)
JUSTIN CARLYLE ELLIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Justin Carlyle Ellis, in pro. per.; and Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2000, Justin Carlyle Ellis committed a robbery using a pellet gun.
He ultimately pleaded guilty to one count of robbery (Pen. Code, 1 § 211). Ellis admitted a deadly weapon enhancement (§ 12022, subd. (b)(1)) and admitted three strike priors (§ 667, subds. (b)-(i)) and one serious felony prior 1 All further statutory references are to the Penal Code. (§ 667, subd. (a)(1)). His motion to strike the “strike priors” was denied. Ellis was sentenced to an indeterminate term of 31 years to life, consisting of 25 years to life as a third strike offender, one year for the use of the weapon and five years for the serious felony prior. Ellis filed a petition for resentencing under section 1172.75. The prison priors which would have been a subject of such petition had already been stricken and did not form a part of the sentence. The trial court summarily denied the petition for resentencing, finding Ellis was not eligible for relief under the statute. Ellis filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Ellis the opportunity to file his own brief on appeal. Ellis has responded by filing a letter brief. We will discuss his submission later in this opinion.
DISCUSSION2 As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue that was considered in evaluating the potential merits of this appeal: Whether Ellis’s sentence may be recalled. In his submission, Ellis maintains he should be resentenced, but under a theory which is different than that which was presented to the trial court. Now, Ellis appears to contend the original sentence violates section 654 in 2 The facts of the original crime are not relevant to the issues in this appeal. We will omit a statement of facts. 2 that it constitutes multiple punishment. Such reasoning appears to be based on the third strike sentence. The argument is that using prior robbery convictions to increase his latest robbery sentence constitutes multiple punishment in violation of section 654. Regardless of the merits, if any, of such argument, the petition for resentencing was based on different statutory grounds. It does not raise any arguable issues for reversal on appeal. We have reviewed the entire record, consistent with Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Ellis on this appeal. DISPOSITION The order denying Ellis’s petition for resentencing is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12