People v. Sellers CA1/1

Filed 11/30/21 P. v. Sellers CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A162340

v. (Alameda County ROBERT SELLERS, Super. Ct. No. 106955) Defendant and Appellant.

Robert Sellers appeals from an order denying his petition to recall his sentence and resentence him pursuant to Penal Code1 sections 1170, subdivision (d) and 1170.126, and Senate Bills No. 260 (2013–2014 Reg. Sess.) (Senate Bill 260) and No. 261 (2015–2016 Reg. Sess.) (Senate Bill 261). (Stats. 2013, ch. 312, § 4; Stats. 2015, ch. 471, § 1; see also § 1237, subd. (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 597 [allowing appeal of an order after judgment affecting substantial rights].) Sellers’s appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441–442 (Wende). Although counsel advised Sellers of his right to file a supplemental brief—bringing to this court’s attention any issue he believed deserved review—Sellers has not done so. Assuming without deciding that Wende review is available in these proceedings, our

1 All statutory references are to the Penal Code.

independent review of the record has revealed no arguable issues. We therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND2 On November 18, 1990, Sellers, an admitted drug dealer, and his younger brother gunned down a rival drug dealer and his assistant. The crime, which took place on 65th Avenue in Oakland, was witnessed by 17- year-old Johnny M. According to the witness, neither victim had anything in their hands when they were shot. Sellers was arrested at his residence on December 5. His home safe contained four rocks of cocaine. On December 20, 1990, Johnny M. was shot in the back while he was asleep in his bed but did not die.3 One of the two men who were charged with the attempted murder told the police that Sellers had ordered the hit. After a 20-day jury trial, Sellers—who was 21 years old at the time of the crimes—was convicted of two counts of second degree murder. With respect to each charge, the jury found true the allegation that Sellers had personally used a firearm. Sellers was sentenced to 34 years to life and remains in custody. The judgment was affirmed on appeal. (People v. Sellers (Oct. 27, 1992, A054612) [nonpub. opn.].) In March 2021, Sellers filed a petition seeking resentencing pursuant to section 1170, subd. (d), section 1170.126, Senate Bill 260, and Senate Bill 261. He requested appointment of counsel to represent him. On March 15, 2021, the trial court summarily denied the petition.