People v. Ellis ( 2024 )

Filed 5/15/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B325433
(Super. Ct. No. 14C-20633-B)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JUSTIN CARLYLE ELLIS,
Defendant and Appellant.
Justin Carlyle Ellis appeals from a resentencing order
which reduced his stipulated sentence of ten years down to eight
years. The trial court struck two “one year” priors. Nevertheless,
he now contends that the trial court did not afford him a “full
resentencing” and consider newly enacted Senate Bill No. 567
(S.B. 567) (2021-2022 Reg.Sess.), which, generally, requires the
middle term to be imposed. At no time below did the parties or
the resentencing court expressly mention S.B. 567. When he was
originally sentenced in 2014, appellant stipulated to the upper
four-year term, doubled to eight years because of a strike prior
offense.
There are several reasons, i.e., traditional rules of
limitation, which require us to affirm the judgment. First, error
is never presumed. Second, it is counsel’s burden to point out
legal error and persuade the appellate court that any such error
has resulted in a miscarriage of justice. Third, a silent record
may not be a springboard for a successful appeal. Fourth, it is
presumed that the trial court was aware of existing law, i.e., S.B.
567. Fifth, failure or election not to raise the claim at trial level
may be a waiver/forfeiture on appeal. Sixth, appellant agreed to
the upper term and cannot retain the fruits of his negotiated
disposition while at the same time jettison the unfavorable
aspects of the negotiated disposition. Seventh, there is an
exception from the “middle term” on resentencing if the trial
court “originally imposed the upper term.” (Pen. Code, § 1172.75,
subd. (d)(4).) Eighth, this was an aggravated case calling for the
upper term. While serving a term in state prison, appellant
conspired with a woman to smuggle marijuana into the prison by
secreting it in her underwear. This attempt, strikes at the very
heart of imprisonment. Prison is not the place where marijuana
should be available for personal use or distribution.
Recognizing some of the rules of limitation, appellant says
that he was deprived of the effective assistance of counsel
because counsel did not argue the potential application of S.B.
567. Respondent points out that where, as here, the record is
silent, there may have been a tactical reason for not so objecting,
i.e., there is case law that says the People may have a right to
rescind the plea bargain and insist upon their trial rights, and
perhaps a greater sentence would be imposed. Any claim of
ineffective assistance of counsel should be addressed, if at all, in
a petition for writ of habeas corpus.
2
Disposition
The judgement is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
3
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Susan S. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Seth P. McCutcheon, Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.