Filed 2/19/15 P. v. Russell CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
ERIC RUSSELL,
Defendant and Appellant. B251286
(Los Angeles County Super. Ct. No. TA126145)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed. Susan Morrow Maxwell, under appoint ment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Seni or Assistant Attorney General, James William Bilderback II, Supervising Deput y Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

___________________ ____________________2 Defendant Eric Russell was convicted by a jury of assault with a firearm, possession of a firearm by a fe lon, and possession of amm unition. 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 20 00. They would frequently gamble on football, baseball, and basketball games. De pending on the bet, one of them could owe the other $300 to $4 00 at any one time. However, th ey always paid off the debts without serious argument. Defendant would us ually 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, P ace sent defendant a text message that he needed a “ ‘little time to pay’ ” the debt. Defendant respo nded 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 o ffered to pay defendant $200 th e next day. Defendant was not satisfied with Pace’s offer and became up set. According to Pace, defendant “was talking about how he’s a gangster, he’s a kille r, he’s a jacker, and that kind of stuff.” Pace was surprised by defendant ’s reaction and thought defe ndant “wasn’t in his right mind, and it’s just that simple.” At some point during their conve rsation 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 defend ant reoffends after having suffered a first qualifying felony conviction, a doub led sentence is mandatory. ( People v. Vargas (2014) 59 Cal.4th 635, 638.) “If, afte r 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 497.3 Around 9:30 p.m., or shortly after th eir 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 defenda nt had a gun, Pace started to back away. Defendant then pointed the gun at Pace’s h ead. 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 th e 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 ca lled 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 di d 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 bu llet. 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 murd er in violation of Penal Code 3 section 664/187, subd. (a)); in Count 2 with assault with a firearm in violation of section 245, subd. (a)(2); in Count 3 w ith possession of a firearm by a felon in violation of section 29800, subd. (a)(1); and in Count 4 with possession of am munition 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 convicti ons of violent or seri ous felonies within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and that defendant had a pr ior prison term within the meaning of

3 All further statutory references are to the Penal Code.4 section 667.5. Defendant pled not guilty a nd denied the special allegations. Following a jury trial, he was found gu ilty 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 senten ce of 25 years to life on Count 2 under the Three Strikes law. The court stayed the sent ence on Counts 3 and 4 under section 654. Defendant filed a timely notice of appe al 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 senten cing objectives, and its discretionary determination to impose a particular senten ce will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribuna l is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that a tria l 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’ discreti on in sentencing repeat offenders.” ( Romero ,5 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 be cause, for articulable reasons which can withstand scrutiny for abuse, this defendant sh ould be treated as t hough he actually fell outside the Three Strikes scheme.” ’ [Citation.]” ( Carmony, supra , 33 Cal.4th at p. 377.) When considering whether to strike prio r convictions, the relevant factors a court must consider are “whether, in light of th e nature and circumstances of his present felonies and prior serious and/or violent fe lony convictions, and the particulars of his background, character, and prospects, th e 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 Th ree Strikes law “not only establishes a sentencing norm, it carefully circumscribes th e trial court’s power to depart from this norm . . . . [T]he law creates a strong presum ption 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 tr ial court considered all the relevant factors
in the absence of an affirmat ive record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) At defendant’s sentencing hearing, his co unsel asked the court to strike one or more of defendant’s prior strike convictio ns and “impose a one-strike sentence.” Defense counsel argued that all of defenda nt’s prior strike convictions arose from a single 1994 case. Although defense counse l acknowledged there were two victims in the 1994 case, he claimed the prior stri ke convictions arose from one incident, defendant had been sentenced to life imprisonm ent when he was only 25 years of age,
and defendant had been a m odel 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 employe d, and had reconnected with his family.6 The prosecution opposed the motion and noted that defend ant had not reoffended until 2012 “because he was incarcerated for 16 years” and there was no expectation defendant would “reform hi s conduct at any point.”
The court denied defendant’s motion to st rike in its entirety. First, the court stated that the prior strike convictions arose from very serious charges involving robbery and kidnapping. Second, the court not ed that the prior strike convictions arose from “three very distinct crimes.” Third, the court stated that although defendant had “behaved himself” wh ile 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 ev erything 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 cour t abused its discretion because the 1994 convictions are too remote in time to justif y sentencing under the Three Strikes law, the 1994 convictions all involved the same inci dent, 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 natu re 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 convicti ons and at least one felony conviction. Specifically, defendant was convicted of the following misdemeanor crimes: battery in 1988; being under the influence of a controlle d substance in 1990; petty theft in 1990; and driving with a suspended li cense in 1991. He was also convicted in 1990 for felony possession of methaqualone.7 The fact that defendant committed no crimes between 1994 and 2010 is easily explained: defendant was in custody servi ng a life sentence after he was sentenced in 1994 for two counts of robb ery, one count of kidnappi ng during the commission of a carjacking, and one count of fleeing or a ttempting to elude a peace officer. As noted by the trial court, just a few years after de fendant was released from custody in 2010, and while he was still on paro le, defendant armed himself w ith a gun and shot at Pace multiple times to settle a gambling dispute. In sum, defendant’s crim es 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 Stri kes 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 ha ve 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. Th at document only establishes that defendant was convicted of the three prior strike convic tions on the same date in the sa me case. That is, there is no evidence in the reco rd 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 becaus e the robbery and carjacking were based on the commission of the same act, forcibly taking the vi ctim’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 defe ndant’s argument appears to be based upon evidence and matters not reflect ed 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.)8 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 Cour t, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.