Filed 2/19/15 P. v. Russell CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



THE PEOPLE,                                                                B251286

         Plaintiff and Respondent,                                         (Los Angeles County
                                                                           Super. Ct. No. TA126145)
         v.

ERIC RUSSELL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Affirmed.
         Susan Morrow Maxwell, 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, Senior Assistant Attorney General,
James William Bilderback II, Supervising Deputy Attorney General, Steven E. Mercer
and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.


                            _______________________________________
       Defendant Eric Russell was convicted by a jury of assault with a firearm,
possession of a firearm by a felon, and possession of ammunition. Under the Three
Strikes law,1 the trial court sentenced him to 25 years to life. Defendant’s sole
contention on appeal is that the trial court abused its discretion by denying his Romero
motion.2 We disagree and affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Romel Pace had known defendant since 2000. They would frequently gamble on
football, baseball, and basketball games. Depending on the bet, one of them could owe
the other $300 to $400 at any one time. However, they always paid off the debts
without serious argument. Defendant would usually tell Pace, “ ‘Just holler at me when
you’re ready [to pay off the debt].’ ”
       On September 30, 2012, Pace lost a $600 bet with defendant over the outcome of
several football games. That same day, Pace sent defendant a text message that he
needed a “ ‘little time to pay’ ” the debt. Defendant responded to Pace’s text message
by calling him around 9:16 p.m. Defendant appeared angry and told Pace he wanted his
money. In response, Pace offered to pay defendant $200 the next day. Defendant was
not satisfied with Pace’s offer and became upset. According to Pace, defendant “was
talking about how he’s a gangster, he’s a killer, he’s a jacker, and that kind of stuff.”
Pace was surprised by defendant’s reaction and thought defendant “wasn’t in his right
mind, and it’s just that simple.” At some point during their conversation Pace became
upset with defendant’s ranting and said, “ ‘I don’t give a fuck about that shit.’ ”
Defendant said, “Well, I do.” Pace replied, “ ‘Well I don’t.’ ”




1
       Under the Three Strikes law, if a defendant reoffends after having suffered a first
qualifying felony conviction, a doubled sentence is mandatory. (People v. Vargas
(2014) 59 Cal.4th 635, 638.) “If, after having suffered two qualifying felony
convictions, an offender commits a third qualifying felony, the Three Strikes law
presumes he or she is incorrigible and requires a life sentence.” (Ibid.)
2
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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       Around 9:30 p.m., or shortly after their telephone conversation, defendant drove
to Pace’s home and stopped his car in the middle of the street. Pace approached
defendant’s car. Defendant got out of his car with a gun in his right hand and said to
Pace, “ ‘What’s up, big luck?’ ” When Pace saw that defendant had a gun, Pace started
to back away. Defendant then pointed the gun at Pace’s head. As Pace ran down the
street, he heard four or five gunshots but was not hit. Pace saw defendant pull the
trigger; he also saw a muzzle flash from the gun. Pace returned to his home after
defendant got back in his car and left the area.
       Donald Marshall was in his driveway on September 30, 2012 at approximately
9:30 p.m. when he heard two men arguing about 50 yards away. After Marshall heard
several gunshots and saw muzzle flashes, he called 911. The police arrived on the scene
a few minutes later.
       At first, Pace was reluctant to report the shooting or talk to the police because he
was in shock and had known defendant for a long time. However, after family and
friends convinced him to speak to the police, he did so about two hours after the
incident. After police officers searched the area identified by Pace as the scene of the
crime, they found three casings and one bullet. Cell phone records showed that when
defendant called Pace around 9:16 p.m., defendant was near the crime scene.
       In an information filed on March 11, 2013, defendant was charged in Count 1
with premeditated attempted murder in violation of Penal Code3 section 664/187,
subd. (a)); in Count 2 with assault with a firearm in violation of section 245,
subd. (a)(2); in Count 3 with possession of a firearm by a felon in violation of
section 29800, subd. (a)(1); and in Count 4 with possession of ammunition in violation
of section 30305, subd. (a)(1). The information also alleged as to Counts 1, 2, and 3
that defendant had suffered three prior convictions of violent or serious felonies within
the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b)
through (i), and that defendant had a prior prison term within the meaning of


3
       All further statutory references are to the Penal Code.

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section 667.5. Defendant pled not guilty and denied the special allegations. Following
a jury trial, he was found guilty of Counts 2, 3, and 4 in May 2013. He was acquitted of
Count 1. After the verdict was rendered, Defendant admitted his three prior strike
convictions from October 1994 consisting of two robbery counts (§ 211) and one count
of kidnapping during the commission of a carjacking (§ 209.5).
       Defendant’s motion to strike his prior convictions under Romero was denied by
the trial court. The court imposed a sentence of 25 years to life on Count 2 under the
Three Strikes law. The court stayed the sentence on Counts 3 and 4 under section 654.
Defendant filed a timely notice of appeal from the judgment of conviction.
                                       DISCUSSION
       1.     Standard of Review
       Defendant’s challenge to the trial court’s denial of his motion to strike his prior
convictions of violent or serious felonies is reviewed for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 375 (Carmony). “In reviewing for abuse of discretion,
we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.” ’
[Citations.] Second, a ‘ “decision will not be reversed merely because reasonable
people might disagree. ‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken
together, these precepts establish that a trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(Carmony, supra, 33 Cal.4th at pp. 376-377.)
       2.     The Trial Court Did Not Abuse Its Discretion by
              Denying the Romero Motion

       “[T]he Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero,


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supra, 13 Cal.4th at p. 528.) Unlike other sentencing laws, the Three Strikes law
establishes a sentencing requirement to be applied in every case where the defendant
has at least one qualifying strike, unless the sentencing court “ ‘conclud[es] that an
exception to the scheme should be made because, for articulable reasons which can
withstand scrutiny for abuse, this defendant should be treated as though he actually fell
outside the Three Strikes scheme.” ’ [Citation.]” (Carmony, supra, 33 Cal.4th at
p. 377.)
       When considering whether to strike prior convictions, the relevant factors a court
must consider are “whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161.) The Three Strikes law “not only establishes
a sentencing norm, it carefully circumscribes the trial court’s power to depart from this
norm . . . . [T]he law creates a strong presumption that any sentence that conforms to
these sentencing norms is both rational and proper.” (Carmony, supra, 33 Cal.4th at
p. 378.) On appeal, we must presume the trial court considered all the relevant factors
in the absence of an affirmative record to the contrary. (People v. Myers (1999)
69 Cal.App.4th 305, 310.)
       At defendant’s sentencing hearing, his counsel asked the court to strike one or
more of defendant’s prior strike convictions and “impose a one-strike sentence.”
Defense counsel argued that all of defendant’s prior strike convictions arose from
a single 1994 case. Although defense counsel acknowledged there were two victims in
the 1994 case, he claimed the prior strike convictions arose from one incident,
defendant had been sentenced to life imprisonment when he was only 25 years of age,
and defendant had been a model prisoner. Defense counsel also argued that after
defendant’s release from prison in May 2010, defendant complied with parole and the
law for several years, was gainfully employed, and had reconnected with his family.


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The prosecution opposed the motion and noted that defendant had not reoffended until
2012 “because he was incarcerated for 16 years” and there was no expectation
defendant would “reform his conduct at any point.”
       The court denied defendant’s motion to strike in its entirety. First, the court
stated that the prior strike convictions arose from very serious charges involving
robbery and kidnapping. Second, the court noted that the prior strike convictions arose
from “three very distinct crimes.” Third, the court stated that although defendant had
“behaved himself” while in custody for the 1994 case, he reoffended “less than three
years after being released on a life sentence.” Under these circumstances, the court
doubted defendant’s “ability to conform to the laws of society.” The court explained
that although defendant had everything going for him after he was released from prison
in 2010, “he still chose to be a violent individual.” Before denying the motion, the court
considered “defendant’s age, his maturity, his interaction with the criminal justice
system, [and] his conduct in this case.”
       On appeal, defendant contends the court abused its discretion because the 1994
convictions are too remote in time to justify sentencing under the Three Strikes law, the
1994 convictions all involved the same incident, and he has conducted himself in an
exemplary manner after he was released from prison in 2010.
       We first consider whether defendant falls outside the spirit of the Three Strikes
law. In doing so, we are mindful of the nature and circumstances of his present felonies
and prior serious and/or violent felony convictions, and the particulars of his
background. (See People v. Garcia (1999) 20 Cal.4th 490, 503.) Here, there is no
dispute that before defendant was convicted in 1994 for three violent or serious felonies,
he had suffered several misdemeanor convictions and at least one felony conviction.
Specifically, defendant was convicted of the following misdemeanor crimes: battery in
1988; being under the influence of a controlled substance in 1990; petty theft in 1990;
and driving with a suspended license in 1991. He was also convicted in 1990 for felony
possession of methaqualone.



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       The fact that defendant committed no crimes between 1994 and 2010 is easily
explained: defendant was in custody serving a life sentence after he was sentenced in
1994 for two counts of robbery, one count of kidnapping during the commission of
a carjacking, and one count of fleeing or attempting to elude a peace officer. As noted
by the trial court, just a few years after defendant was released from custody in 2010,
and while he was still on parole, defendant armed himself with a gun and shot at Pace
multiple times to settle a gambling dispute. In sum, defendant’s crimes did not result
from a single period of aberrant behavior. (See People v. Garcia, supra, 20 Cal.4th at
p. 503.) In fact, defendant’s criminal history demonstrates he is “the kind of
revolving-door career criminal for whom the Three Strikes law was devised.” (People
v. Gaston (1999) 74 Cal.App.4th 310, 320.)
       We next turn to the issue of whether the court should have granted defendant’s
Romero motion because several of his 1994 prior strike convictions arose, allegedly, out
of a single incident and, therefore, should have been treated as a single strike. Here, the
only evidence provided by defendant concerning the 1994 convictions is the abstract of
judgment from that case. That document only establishes that defendant was convicted
of the three prior strike convictions on the same date in the same case. That is, there is
no evidence in the record before us to support defendant’s contention that these crimes
arose from a single criminal act. (Cf. People v. Vargas (2014) 59 Cal.4th 635, 645 [trial
court should have dismissed one of the prior strikes because the robbery and carjacking
were based on the commission of the same act, forcibly taking the victim’s car].) For
example, there is no evidence that the two robberies and kidnapping during the
commission of a carjacking took place at the same time or even on the same day.
Indeed, defendant conceded in his Romero motion that the three prior strikes involved
two victims and the court found that defendant committed “three very distinct crimes.”
Because error is never presumed and defendant’s argument appears to be based upon
evidence and matters not reflected in the record on appeal, the court’s ruling must be
affirmed. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)



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                                    DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                                           LAVIN, J.*

WE CONCUR:




      KITCHING, Acting P. J.




      ALDRICH, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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