Filed 4/24/23 P. v. Ellis CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN CARLYLE ELLIS,

Defendant and Appellant.

 D081219

 (Super. Ct. No. SCD156047)

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.
2

(§ 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.
3

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.