People v. Shells CA2/2

Filed 6/29/16 P. v. Shells CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B269286

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA024549) v.

BRADLEY EUGENE SHELLS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent. __________________

In 1995, a jury convicted defendant and appellant Bradley Eugene Shells of possession of a firearm by a felon with a prior conviction (Pen. Code, § 12021.1).1 In a bifurcated proceeding, the trial court found that defendant had suffered two prior convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to 25 years to life in prison pursuant to the Three Strikes law. On June 10, 1997, this Court affirmed defendant’s conviction, but remanded the matter to the trial court to exercise its discretion to determine whether to strike one or both of defendant’s prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (People v. Shells (June 10, 1997, B099474) [nonpub. opn.], p. 9.) On February 18, 1998, the trial court decided not to vacate either of the prior strike findings and again sentenced defendant to a prison term of 25 years to life. (People v. Shells (Apr. 5, 1999, B119951) [nonpub. opn.], p. 2.) Defendant again appealed, and on April 5, 1999, we affirmed defendant’s life sentence. (Id. at pp. 1, 15–16.) On January 25, 2013, defendant filed a petition for recall of sentence in the trial court pursuant to section 1170.126. Following a hearing, the trial court denied the petition pursuant to sections 667, subdivision (c)(2)(C)(iii) and 1170.126, subdivision (e)(2), “because during the commission of the current offense [defendant] was armed with a firearm.” Defendant timely filed a notice of appeal. On appeal, he argues that the trial court erred in finding that he was ineligible for recall and resentencing based on the factual finding that he was armed at the time of the commission of the crime. We affirm. FACTUAL BACKGROUND “On June 9, 1995, [defendant] was inside a jewelry store with three other men. [Defendant] and one of the men each had a loaded gun. [Defendant] did not display his