People v. Russ CA3

Opinion

Filed 8/27/26 P. v. Russ CA3 NOT TO BE PUBLISHED

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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

(Yuba)

THE PEOPLE, C103965 Plaintiff and Respondent, (Super. Ct. No. CRF2301984)

v.

CHRISTOPHER GLENN RUSS, Defendant and Appellant.

After defendant Christopher Glenn Russ pled guilty to possession of child pornography and admitted a prior strike conviction, he was sentenced to four years in prison. He now claims the trial court abused its discretion when it failed to dismiss the prior strike conviction. He further contends that the case must be remanded to the trial court for proceedings on his ability to pay a $1,200 restitution fine and $1,200 sex offender fine and that his trial counsel was ineffective by not requesting a hearing on his ability to pay or objecting to the fines as excessive. We find no abuse of discretion in the trial court’s denial of defendant’s motion to strike. We further find that defendant forfeited his current challenge to the fines and reject his related ineffective assistance of counsel claim.

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BACKGROUND

In June 2023, after receiving multiple tips, detectives discovered images of suspected child pornography uploaded and distributed via online services. They later identified defendant as the uploader of the images. The detectives believed the images were of a female under age 12, clothed but with her underwear exposed in a sexually provocative way, and with her genitalia as a focal point.

Law enforcement executed a search warrant at defendant’s home and detained him. Defendant explained he found the images through an online search. He admitted to downloading the images but claimed he did not know the girls were juveniles. Law enforcement searched defendant’s electronic devices and found a large quantity of child pornography. The images depicted prepubescent females between ages 2 and 12, with some unclothed and posing in sexually provocative ways and others depicting penetration of, or ejaculation onto, the juvenile females. The images depicted female genitalia as a focal point and appeared intended to elicit a sexual response. Detectives estimated there were over 100 images of child pornography on defendant’s cell phone.

The People charged defendant with one count of possession of child pornography.

(Pen. Code, § 311.11, subd. (a).)1 The People also alleged that defendant had a prior strike conviction for assault with a deadly weapon. (§ 667, subds. (b)-(i); 1170.12.) The People further alleged circumstances in aggravation that defendant had prior convictions that were numerous or of increasing seriousness, had served a prior prison term, and had an unsatisfactory performance while under supervision. (Cal. Rules of Court, rule 4.421.) Defendant pled no contest and admitted the aggravating factors and prior strike conviction in exchange for a maximum sentence of four years, while preserving his right to seek dismissal of his prior strike conviction.

1 Undesignated statutory references are to the Penal Code.

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Defendant moved to dismiss his prior strike conviction. He argued that: (1) his current offense was neither a violent or serious felony; (2) more than five years had passed since his prior strike conviction; (3) the prior strike conviction occurred when his father-in-law attempted to drive away with his son in his truck; (4) he had a clean prison record and had participated in various educational and vocational programs while in prison; (5) he had completed parole with no violations; (6) he was earning a six-figure income as a project engineer and worked as a carpenter;2 (7) he had overcome methamphetamine addiction and had been drug free since 2018; (8) he had the support of family and his employer; and (9) an examining psychologist found he had a low risk of reoffending or posing a threat of injury or danger to others. Multiple family members, friends, and employers also provided statements or testimony in support of defendant.

The probation department prepared a report noting, among other things, defendant’s lengthy criminal record, including multiple probation violations and the prior strike conviction in 2016 where defendant hit his father-in-law on the head with a baseball bat, resulting in 10 to 12 stitches. The report also noted multiple discrepancies with the information defendant provided to the psychologist and found that defendant posed an above average risk of being convicted of another sexual offense within five years after release. The report acknowledged defendant’s stable residence, gainful employment, family support, and education. However, the report also noted defendant’s statutory rape conviction in 2012 (§ 261.5), the current offense, his past failures on probation, his prior prison sentences, and his failure to accept responsibility for the current offense, all of which showed defendant’s inability to change his behavior and his danger to others if not incarcerated. The department recommended the middle term sentence of four years.

2 Defendant further stated upon addressing the court that he owned his own home and drove a Tesla vehicle.

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The trial court acknowledged the credibility of defendant’s examining psychologist, but observed that the psychologist had not reviewed the police report or probation report, including defendant’s prior record, and defendant’s accounts differed greatly from the probation report. In addition, defendant’s account of his criminal record excluded the statutory rape conviction where the victim was 17 and defendant was 23 or 24, which was pertinent to defendant’s risk of offending. And, although defendant discussed his conviction for assault with a deadly weapon with the psychologist, he minimized his behavior by claiming he was trying to prevent a kidnapping, even though he pled guilty. In the court’s view, this discrepancy was indicative of defendant’s pattern of failing to take responsibility for his conduct.

The trial court also noted that defendant told the psychologist that law enforcement recovered three child pornography images on his devices, even though there were actually over 100 images, including some that were highly explicit. The court viewed this as further indication of defendant’s lack of remorse. Because the doctor’s report was based only on the inaccurate, incomplete, and “very skewed” information provided by defendant, the court had no confidence in the report and no competent evidence in support of defendant’s request to strike the strike.

Because defendant admitted the aggravating factors, the court explained it could have imposed an upper term sentence, but it would accept the parties’ stipulation to a sentence of no more than four years. The court imposed a four-year prison sentence (the middle term of two years doubled due to the prior strike). The court also imposed other fees and fines without any objection, including a $1,200 restitution fine (§ 1202.4, subd.(b)); a suspended $1,200 parole revocation fine (§ 1202.45); and a $1,200 sex offender fine (§ 290.3).

Defendant appealed and did not request a certificate of probable cause.

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DISCUSSION

I. Motion to Strike

Defendant contends the trial court erred in denying his motion to strike because it failed to give appropriate consideration to mitigating factors, including his rehabilitation, low risk of reoffending, commitment to self-improvement, and family support.

“Under California’s Three Strikes law, a defendant’s sentence is enhanced upon proof that the defendant has been previously convicted of a ‘strike’ -- a violent felony as defined in section 667.5, subdivision (c), or a serious felony as defined in section 1192.7, subdivision (c).” (People v. Denard (2015) 242 Cal.App.4th 1012, 1024.) Section 1385, subdivision (a) states in relevant part that a “judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” Discretionary dismissal under that subdivision may include a prior strike conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531; People v. Williams (1998) 17 Cal.4th 148, 151-152.) In dismissing a strike for purposes of the three strikes law, the sentencing court must determine whether “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.” (Williams, at p. 161.)

We review the trial court’s ruling on a motion to dismiss a prior strike for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) A trial court does not abuse its discretion unless it was unaware of its discretion, it declined to dismiss the strike for impermissible reasons, or “its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) The burden is on the party attacking the sentence to clearly show that the sentencing decision is irrational or arbitrary. (Id. at p. 376.) Absent such a showing, we presume the trial court acted to achieve legitimate sentencing objectives, and we will not set aside its discretionary determination. (Id. at pp. 376-377.) “ ‘[W]here the record demonstrates that the trial court balanced the

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relevant facts and reached an impartial decision in conformity with the spirit of the law, [the reviewing court] shall affirm the trial court’s ruling, even if [it] might have ruled differently in the first instance.’ ” (Id. at p. 378.)

We find no abuse of discretion in the trial court’s denial of the motion to strike.

While defendant pled guilty to the current offense, the trial court’s finding that defendant continued to minimize his conduct and failed to accept full responsibility was not irrational or arbitrary. The trial court noted that defendant omitted or misrepresented multiple facts to the examining psychologist, such as failing to mention his statutory rape conviction and stating that law enforcement found only three images of child pornography on his devices, when in reality there were more than 100 images, several which were highly explicit. Defendant also misrepresented the circumstances of his assault with a deadly weapon conviction, the very conviction at issue here.

The trial court further noted defendant’s admission to multiple aggravating circumstances in this case, which included numerous convictions of increasing seriousness and unsatisfactory performance on probation. The court also highlighted the probation department’s determination that defendant had a high risk of reoffending in light of his current offense and his statutory rape conviction, which was very serious given the age difference between defendant and the victim. The court also heard and considered defendant’s various arguments regarding his rehabilitation, overcoming his drug addictions, gainful employment, and family support, but implicitly found these factors were insufficient to find that he was outside the spirit of the three strikes law. While defendant disagrees with the trial court’s weighing of the various factors, the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision.

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II. Restitution Fine

Defendant next contends that remand is required because the trial court imposed a $1,200 restitution fine and $1,200 sex offender fine without any determination of his ability to pay or whether the fines were constitutionally excessive. Anticipating forfeiture, defendant claims trial counsel was constitutionally ineffective for failing to object to the fines as excessive or request an ability to pay hearing.

In People v. Kopp (2025) 19 Cal.5th 1, our Supreme Court held that, if a defendant requests, a trial court must consider the defendant’s ability to pay before imposing a restitution fee in excess of the $300 minimum statutory amount. Similarly, in People v. Acosta (2018) 28 Cal.App.5th 701, the court explained that a trial court is not obligated to inquire into a defendant’s ability to pay a sex offender fine absent the defendant’s request.

Here, defendant requested no such hearing as to either the restitution or sex offender fine, and he concedes that “whether an ability to pay hearing must be held before fines are imposed had been front and center in the courts” since the decision in People v. Dueñas (2019) 30 Cal.App.5th 1157, and the Supreme Court’s grant of review in Kopp. Defendant’s failure to request that the trial court consider his ability to pay or raise any challenge to the fees forfeited his current challenge to the restitution and sex offender fines. (See People v. Scott (1994) 9 Cal.4th 331, 351-354.)

We also reject defendant’s claim of ineffective assistance of counsel. To establish such a claim, defendant must prove: (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency prejudiced defendant. (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai); Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. … On direct appeal, a conviction will be

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reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (Mai, at p. 1009.)

The record is silent as to why defense counsel did not request that the court consider his ability to pay or argue that the fines were excessive, and we will find ineffective assistance only if there could be no reasonable tactical purpose for counsel’s decisions. (See Mai, supra, 57 Cal.4th at p. 1009.) One interpretation of the record supports the conclusion that counsel simply neglected to request a hearing on defendant’s ability to pay. However, another interpretation is that counsel believed such a request would be futile, especially considering defendant’s contentions on his motion to strike that he was making $100,000 a year and owned his own home and a Tesla vehicle, which would undercut a claim defendant could not pay a $1,200 restitution fine and $1,200 sex offender fine. Similarly, counsel may have believed that objecting to the fines as excessive would be futile, given that law enforcement found over 100 images of child pornography on defendant’s devices.

Under these circumstances, we do not conclude “there simply could be no satisfactory explanation” for counsel’s failure to request a hearing on defendant’s ability to pay the fines or object to the fines as excessive. (See Mai, supra, 57 Cal.4th at p. 1009.)

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DISPOSITION

The judgment is affirmed.

/s/ WISEMAN, J.

We concur:

/s/ HULL, Acting P. J.

/s/ RENNER, J.

 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.