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Shell v. Rackley

United States District Court, S.D. California

July 17, 2017

EDWARD V. SHELL, Petitioner,
v.
RONALD RACKLEY, Warden, Respondent. v.

          REPORT AND RECOMMENDATION FOR ORDER: (1) DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 5]; AND (2) DENYING MOTION FOR ORDER TO EXPAND RECORD [ECF NO. 15]

          Hon. Jill L. Burkhardt United States Magistrate Judge

         I. INTRODUCTION

         Before the Court is the first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 of Edward V. Shell. (ECF No. 5.) Also before the Court is Petitioner's motion for an order to expand the record. (ECF No. 15.)

         This Report and Recommendation is submitted to United States District Judge Larry Alan Burns pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. For the reasons discussed below, the Court recommends that Petitioner's first amended petition (ECF No. 5) and motion for an order to expand the record (ECF No. 15) be DENIED.

         II. BACKGROUND

         In 1997, a jury convicted Petitioner of three counts of robbery under California Penal Code § 211 and one count of attempted robbery under California Penal Code §§ 211, 213, and 664. (ECF No. 12-4 at 2.)[1] The trial court made true findings as to allegations that Petitioner had seven prior serious or violent felony convictions and one prior serious felony conviction for multiple robberies committed in 1991. (Id.) Pursuant to California's three-strikes law, the court sentenced Petitioner to three consecutive terms of 25 years to life, plus a consecutive five-year enhancement, for an aggregate indeterminate term of 80 years to life. (Id.)

         On November 4, 2014, California voters approved Proposition 47, which redesignated some non-serious, non-violent crimes as misdemeanors instead of felonies and permitted resentencing for prisoners currently serving a sentence for any of the offenses that the initiative reduced to misdemeanors. See Turner v. Richardson, 2:13-cv-00454 WBS AC P, 2016 WL 47445, at *1 (E.D. Cal. Jan. 5, 2016). Proposition 47 was codified as California Penal Code § 1170.18, and it became effective on November 5, 2014. Cal. Penal Code § 1170.18 (West 2014). Section 1170.18 provides, in relevant part:

A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (“this act”) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section [sic] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.

Cal. Penal Code § 1170.18(a).

         On November 17, 2014, Petitioner filed a petition pursuant to Proposition 47 to recall the sentence he received in 1997. (ECF No. 5 at 23-52.) The San Diego County Superior Court denied the petition on February 5, 2015, on the basis that the crimes for which Petitioner was convicted, three counts of robbery under California Penal Code § 211 and one count of attempted robbery under California Penal Code §§ 211, 213, and 664, were not eligible for resentencing under Proposition 47. (Id. at 53.)

         On August 3, 2015, Petitioner, through his counsel John L. Dodd, filed an appeal of the San Diego County Superior Court's denial of his petition for resentencing. (ECF No. 12-2.) According to the California Court of Appeal's opinion in People v. Shell, No. D067745 (Cal.Ct.App. Jan. 25, 2016):

Shell's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, 744 (Anders) raising one possible but not arguable appellate issue: whether the trial court erred in denying Shell's motion for resentencing pursuant to Proposition 47.

(ECF No. 12-4 at 3.) The Court of Appeal invited Petitioner to file his own supplemental appellate brief and he did so on August 28, 2015. (ECF No. 12-3.) Petitioner argued that he received ineffective assistance of appellate counsel and was denied due process when his attorney erroneously filed a Wende brief that referenced California Penal Code § 1170.126 (Proposition 36) instead of California Penal Code § 1170.18 (Proposition 47). (ECF No. 12-3 at 7-11.)

         The California Court of Appeal denied Petitioner's appeal in a reasoned decision dated January 25, 2016. (ECF No. 12-4.) The court reasoned as follows:

         A

         In a Wende appeal, we must consider defendant's supplemental contentions and state the reasons why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 120.) Shell contends he suffered prejudice and was denied due process and effective assistance of counsel because counsel filed a Wende brief relying on section 1170.126, which was codified as part of Proposition 36, instead of section 1170.18, which was enacted as part of Proposition 47. Shell was not prejudiced or denied due process by the mention of section 1170.126 because counsel listed the denial of Shell's Proposition 47 petition as an issue, which counsel considered. “[T]he constitutional right to assistance of counsel entitles an indigent defendant to independent review by the Court of Appeal when counsel is unable to identify any arguable issue on appeal. California's procedure for securing this right requires counsel to file a brief summarizing the proceedings and the facts with citations to the record.” (People v. Kelly, supra, at p. 119.) Counsel did that and was not required to raise or argue specific issues in his Wende brief. (Id. at p. 118.)

         B

         Shell contends section 490.2, a provision added by Proposition 47, required resentencing because his robbery convictions were for petty thefts, “which were elevated to felony charges based on his 1991 priors.” (See § 667, subd. (b) [“[i]t is the intent of the Legislature . . . to ensure longer prison sentences and greater punishment for those who commit a felony”].)[3]

         Section 490.2 states: “obtaining any property by theft where the value . . . does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor.” The record shows Shell was not arrested or charged with theft or petty theft in the 1997 convictions. Rather, he was charged with and convicted of three counts of robbery (§ 211) and one count of attempted robbery (§§ 211, 213, 664) from separate victims at two restaurants and a convenience store, all with threats of violence. These felony offenses were crimes against a person and required proof the taking of property from the person or presence of another occurred by force or fear. (§ 211; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [“mere theft becomes robbery if the perpetrator . . . resorts to force or fear while carrying away the loot”].) “Although classified in the Penal Code as a crime against the person, robbery is actually a crime against both the person and property. [Citation.] ‘Robbery violates the social interest in the safety and security of the person as well as the social interest in the protection of property rights.'” (People v. Gomez (2008) 43 Cal.4th 249, 264.) Robbery is categorically different than simple theft of property. (See §§ 484, 490.2.) Therefore, section 490.2, which applies to theft cases, does not apply to the robbery and attempted robbery convictions in this case and no counts were eligible for resentencing under section 1170.18.

         C

         Shell again attempts to challenge the validity of his prior strike convictions and contends they were suffered by someone else. Shell's 1997 convictions and the true findings on the 1991 convictions are long since final. The validity of these earlier decisions were not properly before the trial court on the petition for resentencing under Proposition 47 and are not properly before us on an appeal from the order denying the petition for resentencing.

         Even if these issues were properly before us, we would find no merit in Shell's contentions. We briefly address these issues because they are a consistent theme in Shell's appellate challenges. Shell contends his guilty plea in a single case in 1991 resulting in seven strike convictions should constitute only one strike prior. However, a prior qualifying conviction need not have been brought and tried separately from another qualifying conviction in order to be counted as a separate strike. (People v. Fuhrman (1997) 16 Cal.4th 930, 938-40.)

         Shell's contention he was sentenced under the three strikes law based on a probation report referring to an unrelated case involving other defendants is equally without merit. From the record Shell provided, it is clear the probation report contains a typographical error. The probation report summarizing the 1991 prior strike allegations, refers to superior court case number CR124967 for five counts of robbery pursuant to section 211 and superior court case number CR124969 for two additional counts of first degree robbery pursuant to sections 211 and 212.5, subdivision (a). However, the 1997 amended information charging Shell with the 1991 convictions as prior strike allegations refers to Shell's seven convictions in superior court case number CR124969. The court found these allegations true prior to the issuance of the probation report. Thus, there is no indication the court relied on an unrelated superior court case from 1991 for his sentencing in 1997.

         D

         We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any arguable appellate issue. ...


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