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C.A. Rejects Contention That Judge Erred in Choosing Upper Term in Resentencing
By a MetNews Staff Writer
The Court of Appeal for this district, in a brief opinion, yesterday rebuffed the contention of a convict whose prison term was reduced at a resentencing hearing from 10 to eight years that the judge erred in failing to follow the mandate of a new statute that generally requires that a new sentence be based on the middle term.
Instead, San Luis Obispo Superior Court Judge Jacquelyn H. Duffy, after striking two one-year enhancements based on priors, resentenced Justin Carlyle Ellis to the upper term of four years, doubled to eight years based on a prior offense, as stipulated to when he was originally sentenced. There was no reference at the hearing to Senate Bill 567, signed into law on Oct. 8, 2021.
Justice Kenneth Yegan authored the opinion. He wrote:
“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.”
He continued:
“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.’…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.”
Ellis argued that he was denied competent assistance of counsel by virtue of his lawyer not bringing up SB 567. Yegan said this could have been a tactical decision because the prosecution could then have renounced the plea agreement and insisted on going to trial, potentially resulting in a greater sentence.
At any rate, he said, “[a]ny claim of ineffective assistance of counsel should be addressed, if at all, in a petition for writ of habeas corpus.”
The case is People v. Ellis, B325433.
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