P.
v. Shell
Filed 9/4/13
P. v. Shell CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff
and Respondent,
v.
JERONE ANTOINE SHELL,
Defendant
and Appellant.
B245855
(Los Angeles County
Super. Ct. No. MA055229)
APPEAL from a judgment of the Superior Court of
County, John Murphy, Commissioner. Affirmed.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney
General, and Rene Judkiewicz, Deputy Attorney General, for Plaintiff and
Respondent.
——————————
SUMMARY
Appellant Jerone Shell contends the
trial court abused its discretion in refusing to strike one or more of his
prior strike convictions. We affirm.
PROCEDURAL
BACKGROUND
By amended information, Shell was
charged with three counts of second degree
robbery (Pen. Code, § 211
counts of possession of a firearm by
a felon with two prior convictions (§ 29800, subd. (a)(1); counts 3 & 4),
and one count of dissuading a witness by
threat or force (§ 136.1, subd. (c)(1); count 6). The information alleged that Shell personally
used a firearm in the commission of counts 1, 2, 5 and 6. (§§ 12022.5, subd. (a), 12022.53, subd.
(b).) The information also alleged that
Shell had suffered two prior serious or violent felony convictions or juvenile
adjudications within the meaning of the “Three Strikes†law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), and had suffered two prior serious felony
convictions in 1998 (§ 667, subd. (a)(1)).
Shell pleaded not guilty and denied the allegations.
A jury found Shell guilty as
charged, and found the firearm use allegations true. Shell waived his
strike convictions, which he admitted suffering. At sentencing, the court declined Shell’s
request that it exercise its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike
at least one of his prior strike convictions.
Shell was sentenced to a total of
210 years to life as follows: on counts
1, 2, 5 and 6 each, 25 years to life in prison, plus consecutive five-year
enhancements under section 667, subdivision (a)(1), and consecutive 10-year
enhancements under section 12022.53, subdivision (b); on counts 3 and 4 each,
consecutive sentences of 25 years to life.
The court gave appellant 377 days of total custody credit (327 actual
days plus 50 days of conduct credit).
The trial court subsequently recalled the sentences on counts 3, 4 and
6, and resentenced Shell as follows: as
to count 3, the midterm of two years doubled; on count 4, one-third the midterm
of 24 months (eight months) doubled (16 months); and corrected a clerical error
as to count 6.
name="_ftnref2" title="">[2]
FACTUAL BACKGROUND
On January
17, 2012,
Heather Perkins was working at her job at “Advance America,†a payday advance
and money order business, when a man whom she later identified as Shell came to
the locked front door. After motioning
for Shell to take off the hat he wore, Perkins buzzed him into the store.
Shell asked Perkins if the store
issued money orders. Perkins, who was
new, said it did and went to find out how.
When she returned to the counter, Shell was looking around the store as
if to see if anyone was there. He
approached the counter, pointed a gun at Perkins and ordered her to “‘[o]pen
the drawer.’†Perkins gave Shell the
money in the cash register. Pointing his
gun at Perkins’s head, Shell then ordered her to open the business’s safe. Shell took cash and prepaid credit gift cards
from the safe. He also took Perkins’s
wallet, purse and cell phone.
Before leaving, Shell told Perkins,
“‘you made me take my hat off. I know
you took my picture.’ . . . ‘I have all your
information.’ . . . ‘I will find you and I will kill
you.’†Perkins estimated that Shell took
about $1,500 from the store. Perkins
understood Shell’s statements to mean that he would find her if she called the
police.
title="">[3]
Afterwards, Perkins remained terrified about the armed robbery, afraid
to be alone and unable to sleep.
Police took a still photo of the
suspect from the store’s surveillance video, and used a computer program to
compare that photo to their database, where they found a photo of Shell. Perkins identified Shell’s picture in a
photographic six pack, and testified that she was 100 percent sure he was the
perpetrator. She explained that the
robber had a scar under his right eye; Shell had the same scar under his right
eye. Perkins also confirmed that a
driver’s license, credit cards and receipts recovered by the police about a
mile from the crime scene were taken from her purse.
On January
25, 2012,
Shell’s friend, Jessica Moore, drove him in her mother’s white Oldsmobile to a
shopping center with a “Mail America†store. Shell, who had a pistol with him at the time,
said he was going to rob the store.
Shell entered the Mail America store
where the owner Ejaz Ahmad and his employee Karla Palomera were working. He pointed a gun at Ahmad and demanded that
he and Palomera give him the money in their cash registers. Palomera put the money into an envelope Shell
took from a store shelf. Shell also took
cell phones belonging to Palomera, Ahmad and the store. Ahmad and Palomera each identified Shell as
the perpetrator.
Moore and Shell went to Moore’s mother’s apartment, where
Shell told Moore he robbed the store, gave her
some of the money he stole and left the gun.
Officers recovered fingerprints from
an envelope the robber was seen touching on Mail America’s surveillance video. An expert testified that he compared those
fingerprints to Shell’s fingerprints stored in a police database, and to
fingerprints taken from Shell at trial; all three matched. Ahmad and Palomera confirmed that two cell
phones found by the police in a trash can near the Mail America store were
their cell phones that Shell had taken.
The police also took a photo of a
white car, later identified as belonging to Moore’s mother, from a January 25, 2012 surveillance video taken at another business in the
shopping center. They found the car in a
lot at Moore’s mother’s apartment building and watched it until they
saw two people get in and drive away.
Officers pulled the car over and arrested Moore and Shell. In a subsequent search of Moore’s mother’s apartment, police
found a grey sweatshirt like the one the perpetrator had worn in the
surveillance video, an envelope, a handgun, eight bullets and a holster. Moore, Ahmad and Palomera each identified the
sweatshirt as the one Shell wore during the robbery.
Moore and Palomera each testified that the handgun looked like the gun
that Shell had used during the robbery.
Palomera confirmed that the envelope the police recovered was the same
as the one Shell handed her during the robbery, and identified Shell in a photo
six pack.
Business surveillance videos of both
incidents were played for the jury.
Shell stipulated to a prior felony conviction for the purposes of counts
3 and 4.
Shell did not testify or present any
evidence.
DISCUSSION
At sentencing, Shell’s counsel asked
the trial court to exercise its discretion under Romero to strike at least one of his prior strikes. The trial court declined to do so, observing
that it was “mindful of the trial testimony . . . [and that it] . . .
considered [Shell’s] prior convictions, one . . . for attempted carjacking, the
other, carjacking, serious and violent felonies . . . .†The court determined that Shell was a person
“who is within the contemplation†of the Three Strikes law. Shell argues that the court’s denial of his
discretion. We disagree.
1. Legal standard
In Romero, the Supreme Court explained that, under section 1385, a
trial court may strike or vacate an allegation or finding under the Three
Strikes law that a defendant has previously suffered a serious and/or violent
felony conviction. (Romero, supra, 13 Cal.4th
at p. 504.) The court’s exercise of
its discretion to dismiss strikes in the furtherance of justice “‘“requires
consideration both of the constitutional rights of the defendant, and the
interests of society represented by the People . . . .â€â€™â€ (Id.
at p. 530, italics omitted.)
In People v. Williams (1998) 17 Cal.4th 148 the Supreme Court
articulated the standard for striking prior convictions: “[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to
Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the
court . . . must consider 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. If it is
striking or vacating an allegation or finding, it must set forth its reasons in
an order entered on the minutes, and if it is reviewing the striking or
vacating of such allegation or finding, it must pass on the reasons so set
forth.†(Id. at p. 161.)
“[T]he [T]hree [S]trikes law not
only establishes a sentencing norm, it carefully circumscribes the trial
court’s power to depart from this norm and requires the court to explicitly
justify its decision to do so. In doing
so, the law creates a strong presumption that any sentence that conforms to
these sentencing norms is both rational and proper. [¶] In
light of this presumption, a trial court will only abuse its discretion in
failing to strike a prior felony conviction allegation in limited circumstances.†(People
v. Carmony (2004) 33 Cal.4th 367, 378.)
Therefore, “[b]ecause the circumstances must be ‘extraordinary . . . by
which a career criminal can be deemed to fall outside the spirit of the very
scheme within which he squarely falls once he commits a strike as part of a
long and continuous criminal record, the continuation of which the law was
meant to attack’ [citation], the circumstances where no reasonable people could
disagree that the criminal falls outside the spirit of the [T]hree [S]trikes
scheme must be even more extraordinary.â€
(Ibid.) The court should not dismiss or vacate a
“strike†unless it concludes that the defendant may be deemed to be outside the
anti-recidivist “spirit†of the Three Strikes law. (People
v. Williams, supra,17 Cal.4th at
p. 161.)
A trial court’s decision to deny a
discretion. (People v. Carmony, supra,
33 Cal.4th at pp. 374–376.) It is the
appellant’s burden as the party attacking the sentencing decision to show that
it was arbitrary or irrational. The
trial court’s refusal to dismiss one or more prior convictions will not be
reversed on appeal unless reasonable minds could not differ about the existence
of “extraordinary†circumstances showing the career criminal falls outside the
spirit of the Three Strikes law. (
court “‘“acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set
aside.â€â€™â€ (Carmony, at pp. 376–377.) “Where the record is silent [citation], or
‘[w]here the record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court’s ruling, even if we might have ruled
differently in the first instance’ [citation].â€
(Id. at p. 378.)
2. Shell’s Romero motion
Shell challenges the trial court’s
exercise of discretion primarily on two grounds. First, he claims he is not a recidivist. Second, he argues that, even if the court had
agreed to strike one or both of his strikes, he would still spend a substantial
amount of time in prison for the current offenses. Neither aspect of Shell’s argument has merit.
Shell maintains that the trial
court’s sentencing decision was an abuse of discretion because he is not a
recidivist. Shell was charged with, and
admitted, prior strike convictions in 1998 for carjacking and attempted
carjacking, which arose from a single case.
(Pen. Code, §§ 215, 664.) These
convictions occurred about 14 years before the instant convictions, when Shell
was 17 years old. He was tried as an
adult and sentenced to 70 months in prison.
In addition to two nonserious, nonviolent sustained juvenile petitions,
Shell’s criminal history consists of a 2001 conviction for the nonstrike
offense of possession of cocaine base for sale (Health & Saf. Code,
§ 11351.5). Shell also asserts that
he spent a “substantial amount of time†out of custody before being charged
with the felonies here. Finally, he
maintains that, depending on whether the trial court agreed to dismiss one or
both of his prior strikes, he could still have received a very lengthy prison
sentence (up to 41 years) for the current convictions.
We find no abuse of discretion. The record reflects that the court expressly
agreed with the prosecutor’s assertion that the facts of this case did not
militate in favor of granting Shell’s Romero
motion. The court, aware of its
sentencing discretion, articulated that it had considered the trial testimony
and the fact that Shell’s prior convictions for carjacking and attempted
carjacking were for serious and violent felonies. That Shell was 17 years old at the time of
his 1998 convictions does not warrant striking those convictions. On the contrary, it may be considered a
long-standing history of engaging in dangerous crimes. Nor does the remoteness of the strikes or the
fact that they arose out of the same case suggest that the court abused its discretion
in denying the Romero motion. Multiple prior offenses that constitute
strikes may be considered as such for sentencing under the Three Strikes law,
even if they arose out of the same incident or case. (People
v. Benson (1998) 18 Cal.4th 24, 26, 30–36; People v. Philpot, supra,
Cal.App.4th at pp. 906–907.) And, the
mere fact that a strike is remote in time is insufficient to grant a
other factors, including but not limited to the subsequent commission of
nonstrike crimes. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
In People v. Philpot, supra,
arguments similar to Shell’s. There, the
defendant argued the trial court abused its discretion in denying his
things, “his prior strikes were remote and stemmed from a single case . . .
[and] he had not been convicted of any strike offenses in the interim.†(Id.
at p. 906.) The court found no abuse of
discretion, concluding that the record showed that the trial court considered
all appropriate factors in concluding that the defendant fell within the spirit
of the Three Strikes law. (
So too here. On this history, coupled with testimony from
the victims of the armed robberies, the court was within its rights to conclude
that Shell is the type of recidivist felon the Three Strikes law was intended
for. Shell failed to establish the
existence of “‘extraordinary . . . [circumstances] by which
a career criminal [may] by deemed to fall outside the spirit of the [Three
Strikes Law].’†(People v. Carmony, supra,
33 Cal.4th at p. 378; People v.
Philpot, supra,
We reject Shell’s assertion that the
spirit of the Three Strikes law does not apply to him because he did not commit
serious or violent “strike†felonies after his 1998 convictions. Shell was convicted in 2001 of possession of
cocaine base for sale. By its nature,
drug dealing is a dangerous criminal activity and often involves a risk of
serious violence. Shell implicitly
concedes the veracity of the trial court’s finding that his prior strike
convictions involve crimes that are both violent and serious felonies under the
California Three Strikes law. His
attempt to minimize the seriousness of 2001 conviction for drug sales is
unavailing. Justice Kennedy, in his
concurrence in Harmelin v. Michigan
(1991) 501 U.S. 957, identified potential significant harmful impacts of drug
use and drug dealing on society, stating that the “distribution of illegal
drugs represent[s] ‘one of the greatest problems affecting the health and
welfare of our population.’
[Citation.]†(
the individual who consumes illegal drugs, such drugs relate to crime inâ€
several ways, including the fact that “[a] violent crime may occur as part of
the drug business or culture.†(
known to keep guns . . . ready access to a gun is often crucial to a drug
dealer’s commercial successâ€].) Shell’s
2001 conviction shows he had not truly rehabilitated from his teenage years and
continued to engage in increasingly dangerous criminal conduct. We also reject Shell’s claim that he is not a
recidivist because he spent a “substantial amount of time†out of custody
before being charged. In 1998, he was
sentenced to almost six years in prison for the carjacking offenses. In 2001, he was sentenced to six years in
prison for the felony narcotics conviction.
Shell was incarcerated for a significant portion of the period between
his 1998 carjacking related convictions and his commission of the armed
robberies in 2012. His opportunities to
reoffend during that 14 year period were obviously significantly reduced.
Here, the circumstances evaluated by
the trial court—including the specifics of the current offenses, the nature of
the serious and violent prior strike offenses and the evidence of Shell’s
criminal record—led to its conclusion that Shell did not fall outside the
letter or spirit of the Three Strikes sentencing scheme. Nothing indicates that the trial court’s
ruling was not impartial or that it considered any improper factors. (See People
v. Philpot, supra, 122
Cal.App.4th at p. 906.) Shell’s
disagreement with the trial court’s view of his criminal history and gravity of
his offenses does not render the court’s ruling arbitrary or irrational. At best, Shell has shown that reasonable
people could disagree on whether to strike one or more of his prior
convictions. But, an appellant does not
carry his significant burden on appeal by merely showing reasonable people
might disagree on this point. (
This case does not present an
“extraordinary†circumstance and does not warrant a finding that Shell should
be “‘deemed to fall outside the spirit of the very [Three Strikes] scheme
within which he squarely falls . . . .’â€
(People v. Carmony,
circumstances, we cannot say that the trial court abused its discretion by
refusing to strike one or more of Shell’s prior strike offenses.
The
judgment is affirmed.
NOT TO
BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO,
P. J.
ROTHSCHILD,
J.
name="_ftn1" title="">[1]
Undesignated statutory references are to the Penal Code.
amended information correctly alleged personal firearm use as to count 6 under
section 12022.5, subdivision (a). But
the verdict form, minute order from the sentencing hearing and abstract of
judgment erroneously list section 12022.53, subdivision (b), as the firearm
enhancement for that count. Section
12022.53, subdivision (b) does not apply to violations of section 136.1. (§ 12022.53, subd. (a).) The trial court recalled Shell’s sentence in
count 6 (§ 1170, subd. (d)), and imposed a consecutive 10-year determinate term
for firearm use (§ 12022.5, subd. (a)).
