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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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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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 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. 

_______________________________________
2 

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. 
3 

 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. 
4 

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, 
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 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. 
6 

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. 
7 

 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.) 
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 Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.