People v. Sellers CA1/1 ( 2021 )

Filed 11/30/21 P. v. Sellers CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A162340
v. (Alameda County
ROBERT SELLERS, Super. Ct. No. 106955)
Defendant and Appellant.
Robert Sellers appeals from an order denying his petition to recall his
sentence and resentence him pursuant to Penal Code1 sections 1170,
subdivision (d) and 1170.126, and Senate Bills No. 260 (2013–2014 Reg.
Sess.) (Senate Bill 260) and No. 261 (2015–2016 Reg. Sess.) (Senate Bill 261).
(Stats. 2013, ch. 312, § 4; Stats. 2015, ch. 471, § 1; see also § 1237,
subd. (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 597 [allowing appeal
of an order after judgment affecting substantial rights].) Sellers’s appointed
appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436, 441–442 (Wende). Although counsel advised Sellers of his
right to file a supplemental brief—bringing to this court’s attention any issue
he believed deserved review—Sellers has not done so. Assuming without
deciding that Wende review is available in these proceedings, our
1 All statutory references are to the Penal Code.
independent review of the record has revealed no arguable issues. We
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
On November 18, 1990, Sellers, an admitted drug dealer, and his
younger brother gunned down a rival drug dealer and his assistant. The
crime, which took place on 65th Avenue in Oakland, was witnessed by 17-
year-old Johnny M. According to the witness, neither victim had anything in
their hands when they were shot. Sellers was arrested at his residence on
December 5. His home safe contained four rocks of cocaine. On December 20,
1990, Johnny M. was shot in the back while he was asleep in his bed but did
not die.3 One of the two men who were charged with the attempted murder
told the police that Sellers had ordered the hit.
After a 20-day jury trial, Sellers—who was 21 years old at the time of
the crimes—was convicted of two counts of second degree murder. With
respect to each charge, the jury found true the allegation that Sellers had
personally used a firearm. Sellers was sentenced to 34 years to life and
remains in custody. The judgment was affirmed on appeal. (People v. Sellers
(Oct. 27, 1992, A054612) [nonpub. opn.].)
In March 2021, Sellers filed a petition seeking resentencing pursuant
to section 1170, subd. (d), section 1170.126, Senate Bill 260, and Senate Bill
261. He requested appointment of counsel to represent him. On March 15,
2021, the trial court summarily denied the petition.
2The facts regarding the underlying crimes are taken from the July
1991 probation report in this matter.
Two days earlier, on December 18, gunmen narrowly missed shooting
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Johnny M., wounding a bystander with assault rifle fire.
2
The court noted that it had no jurisdiction to recall Sellers’s sentence
under section 1170, subdivision (d)(1) because more than 120 days had
passed since the date of Sellers’s commitment, and it had not received a recall
request from the district attorney or the secretary of the Board of Parole
Hearings. Subdivision (d)(2) of section 1170 pertains only to individuals who
were under 18 at the time of their offenses and thus is also inapplicable to
Sellers. With respect to section 1170.126, the trial court explained that
resentencing is only available under that statute for three strike offenders
serving an indeterminate term for felonies “that are not defined as serious
and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c)
of Section 1192.7.” (§ 1170.126, subds. (b), (e)(1).) Sellers’s murder
convictions were both serious and violent felonies, precluding any relief. (See
§ 667.5, subd. (c)(1) & (8) [violent felony]; 1192.7, subd. (c)(1) & (8) [serious
felony].)
The trial court then addressed Sellers’s claim under Senate Bills 260
and 261, concluding that Sellers was not entitled to relief under that
legislation, which requires the Board of Parole Hearings to conduct youth
offender parole hearings to consider the release of offenders who committed
specified crimes when they were under 25 years of age and who were
sentenced to state prison. (See generally §§ 3051, 4801.) As the trial court
pointed out, Sellers did not contend he was being unlawfully denied a hearing
pursuant to these provisions—which require action by the Board of Parole
Hearings rather than permitting resentencing by the courts. Moreover, the
court noted that, in August 2019, Sellers filed a petition for writ of habeas
corpus which the court treated as a motion seeking a postsentence hearing
pursuant to People v. Franklin (2016) 63 Cal.4th 261 to present evidence
related to the hallmark features of youth for use at an eventual youth
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offender parole hearing. Counsel was appointed for Sellers, who
subsequently withdrew the motion in December 2020. However, counsel will
continue to represent Sellers for purposes of submitting youthful offender
materials to the parole board. Based on all of these circumstances, the trial
court denied the petition.
DISCUSSION
As stated above, Sellers appealed from the trial court’s March 2021
denial of his petition for resentencing. We appointed counsel to represent
him. After examining the record, counsel filed a Wende brief raising no
issues on appeal and requesting that we independently review the record.
(Wende, supra, 25 Cal.3d at p. 441; see also People v. Kelly (2006) 40 Cal.4th
106, 109–110.) Sellers was advised by his attorney of the opportunity to file a
supplemental brief with this court, but he has not done so. Assuming
without deciding that Wende review is available in these proceedings, we
have examined the entire record and are satisfied that Sellers’s attorney has
complied with his responsibilities and that no arguable issue exists. As the
trial court demonstrated in its ruling, none of the grounds raised by Sellers in
his petition for resentencing are applicable to his case.
DISPOSITION
The order denying Sellers’s March 8, 2021 petition is affirmed.
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SANCHEZ, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162340
People v. Sellers
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