Filed 1/25/16 P. v. Shell CA4/1
Opinion following rehearing
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067745

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD126559)

EDWARD VICTOR SHELL,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County,

David J. Danielsen, Judge. Affirmed.



         John L. Dodd, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.
                        INTRODUCTION AND BACKGROUND

       In 1997, a jury convicted Edward Victor Shell of three counts of robbery (Pen.

Code, § 211)1 and one count of attempted robbery (§§ 211, 213, 664). The jury found

Shell not guilty of one count of robbery. The court found true allegations Shell had seven

prior serious or violent felony convictions (strikes) (§§ 667, subds. (b)-(i), 1170.12) and

one serious felony prior conviction (§§ 667, subd. (a), 1192.7, subd. (c)(19)) for robberies

in 1991. The court sentenced Shell to three consecutive terms of 25 years to life plus a

consecutive five-year enhancement pursuant to section 667, subdivision (a), for an

aggregate indeterminate term of 80 years to life. The court stayed imposition of

sentencing for one of the robbery counts pursuant to section 654.

       In 2014 Shell petitioned for resentencing pursuant to section 1170.18, subdivision

(a) (Proposition 47), contending: (1) his last conviction was for petty theft, which was

elevated to a serious felony due to his prior strike convictions; (2) his prior strikes arose

from a single case and should have been a single strike; and (3) the probation department

report referenced a case not involving Shell for some of the prior strike counts. The court

denied the petition concluding no counts were eligible for resentencing because his

convictions were for robbery and attempted robbery. Shell appealed.2



1      All further statutory references are to the Penal Code unless otherwise specified.

2      Shell is not a stranger to this court. He has filed four appeals, three petitions for
writ of habeas corpus and one petition for writ of error coram vobis arising from the 1997
convictions. On the direct appeal this court affirmed the judgment and denied a
companion petition for writ of habeas corpus. (People v. Shell (Feb. 11, 1999, D029077,
D030457) [nonpub. opn.].) We denied a second petition for writ of habeas corpus in
                                               2
       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. We offered Shell the

opportunity to file his own supplemental brief and he has done so. We consider Shell's

brief in the discussion.

                                      DISCUSSION

                                             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

which Shell raised claims regarding his sentence, sufficiency of the evidence, and
instructional error. (In re Shell on Habeas Corpus (Aug. 19, 2008, D052488) [order
denying petition].) We denied a third petition for writ of habeas corpus in which Shell
contended his sentence was unauthorized because his seven convictions in 1991 arose
from one criminal proceeding. (In re Shell on Habeas Corpus (Jan. 12, 2012, D061085)
[order denying petition].) We affirmed an order denying Shell's motion to recall his
sentence under section 1170.126 (Proposition 36). (People v. Shell (May 21, 2014,
D064433) [nonpub. opn.].) We dismissed Shell's appeal of an order denying his motion
to vacate the 1997 judgment because the order was not appealable. (People v. Shell
(Aug. 11, 2015, D068373) [dismissal order].) We also denied Shell's petition for writ of
error coram vobis, which raised nearly identical issues to those Shell asserts in his
supplemental brief in this appeal. (People v. Shell (Sept. 22, 2015, D068853) [order
denying petition].)
                                             3
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


3      During a discussion regarding whether Shell wanted the jury to be instructed
regarding lesser included offenses, the court explained lesser included offenses could
include petty theft. However, the court explained petty theft by a felon is also a felony.
Shell asked the court not to instruct the jury regarding the lesser included offense of petty
theft because it was inconsistent with his defense theory of the case. Thereafter, the jury
convicted Shell of three counts of robbery and one count of attempted robbery.
                                              4
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

                                               5
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, 938-940.)

       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. Competent counsel represented Shell on this appeal.




                                             6
                              DISPOSITION

     The order is affirmed.



                                            MCCONNELL, P. J.

WE CONCUR:


BENKE, J.


MCINTYRE, J.




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