Ellis

Filed 5/15/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B325433 (Super. Ct. No. 14C-20633-B) Plaintiff and Respondent, (San Luis Obispo County)

v.

JUSTIN CARLYLE ELLIS,

Defendant and Appellant.

Justin Carlyle Ellis appeals from a resentencing order which reduced his stipulated sentence of ten years down to eight years. The trial court struck two “one year” priors. Nevertheless, he now contends that the trial court did not afford him a “full resentencing” and consider newly enacted Senate Bill No. 567 (S.B. 567) (2021-2022 Reg.Sess.), which, generally, requires the middle term to be imposed. At no time below did the parties or the resentencing court expressly mention S.B. 567. When he was originally sentenced in 2014, appellant stipulated to the upper four-year term, doubled to eight years because of a strike prior offense. There are several reasons, i.e., traditional rules of limitation, which require us to affirm the judgment. First, error is never presumed. Second, it is counsel’s burden to point out legal error and persuade the appellate court…