Filed 5/21/14 P. v. Shell CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064433
Plaintiff and Respondent,
v. (Super. Ct. No. SCD126559)
EDWARD V. SHELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Appellate Defenders, Inc. and Arthur Martin, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Respondent.
This is an appeal from the denial of a request to have a three strikes sentence
recalled pursuant to Penal Code1 section 1170.126.
In 1997, Edward V. Shell was sentenced to an indeterminate term of 80 years-to-
life following his conviction for four counts of robbery (§ 211) and one count of
1 All statutory references are to the Penal Code unless otherwise noted.
attempted robbery (§§ 211 & 664). Shell was also found to have suffered seven
serious/violent (strike) prior convictions (§ 667, subds. (b)-(i)) and one serious felony
prior conviction (§ 667, subd. (a)).
In 2013, Shell filed a motion to recall his sentence under section 1170.126, which
was denied by the trial court. Shell filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible but not
arguable appellate issues. We offered Shell the opportunity to file his own brief on
appeal and he has done so. We will consider Shell's brief in the discussion.
STATEMENT OF FACTS
There are no relevant facts to discuss in this appeal.
DISCUSSION
Shell has filed several briefs and materials with the court following our invitation
to file his own brief. Shell essentially contends his original sentence in 1997 was flawed
because several of his strike priors were not convictions incurred by him. Rather he
contends some of those prior convictions were suffered by someone else. Thus, he
claims he is entitled to have his sentence recalled and that appellate counsel is ineffective
for failing to raise the alleged 1997 sentencing error on this appeal.
Shell's 1997 convictions and true findings on prior convictions are long since final.
The validity of those earlier court decisions were not before the trial court on the motion
to recall the sentence and are not properly before this court. Rather Shell's remedy, if
any, for alleged errors which are not part of the record in the instant case is by way of
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petition for writ of habeas corpus filed in the trial court. (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267.) Thus, we find no arguable appellate issues have been
presented by the materials filed by Shell.
As we have previously noted, appellate counsel has filed a brief indicating he is
unable to identify any argument for reversal and asks this court to review the record for
error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies the possible, but not arguable issue:
Whether the court erred in determining that Shell did not qualify for recall of his
sentence under section 1170.126?
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 has represented Shell on this appeal.
DISPOSITION
The order denying Shell's petition to recall his sentence is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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People v. Shell CA4/1
Combined Opinion