People v. Russell CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD262599
- Trial judge
- Melinda J. Lasater
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Richard D. Huffman, Sr., O'Rourke
Analysis
The trial court convicted Russell of vehicle theft, denied his motion to strike prior strike convictions, and sentenced him to six years in state prison. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to strike prior strike convictions under People v. Superior Court (Romero)“At the sentencing hearing on October 23, 2015, the court denied Russell's motion to dismiss his two prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.” | unclear | not reached | unsure The opinion states that the independent review disclosed no reasonably arguable appellate issues, implying the trial court's exercise of discretion was not subject to meaningful appellate scrutiny in this context. |
Admission of U-Haul computer logs as business records“Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues identified by Russell's counsel, has disclosed no reasonably arguable appellate issues.” | unclear | not reached | unsure The court did not analyze the specific evidentiary issue but concluded no error was reasonably arguable on the record. |
Denial of defense-requested limiting instruction“Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues identified by Russell's counsel, has disclosed no reasonably arguable appellate issues.” | unclear | not reached | unsure The court did not provide specific reasoning regarding the instruction but found no reasonably arguable error. |
Prosecutorial misconduct regarding 'common sense' arguments“Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues identified by Russell's counsel, has disclosed no reasonably arguable appellate issues.” | unclear | not reached | unsure The court did not analyze the specific argument but found no reasonably arguable error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appellate counsel when no issues are raised.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying potentially arguable issues when they believe an appeal is frivolous.
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Establishes the standard for striking prior strike convictions under the Three Strikes law.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for independent review. However, it provides no substantive legal analysis for the specific issues raised by counsel, relying solely on the conclusion that no reasonably arguable issues exist.
How this analysis was made · dispute it
unusual dispositionA jury convicted Terrance Russell of unlawfully taking or driving a vehicle (Veh. Code, § 10851) after he kept a rented U-Haul truck for months; he admitted two strike priors and a Penal Code section 666.5 prior, the trial court denied his Romero motion, and it sentenced him to six years (middle term doubled) plus a concurrent two-year term on a probation violation and $17,895.11 in victim restitution. Appointed counsel filed a Wende/Anders brief identifying four possible issues, Russell filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Admission of the U-Haul computer log as a business record under Evidence Code section 1271“[D]id the court properly admit the U-Haul computer log as a business record under Evidence Code section 1271, an exception to the hearsay rule?” | unclear | correct | unsure The opinion gives no analysis of the ruling; it simply lists the issue counsel flagged and concludes no arguable issue exists. The factual summary (Hunsaker's testimony that entries are made immediately after customer contact, in the regular course of business) is consistent with a proper foundation under section 1271, but the opinion does not quote the foundation testimony or the trial court's ruling, so I cannot independently verify it. |
Denial of defense-requested limiting instruction that the jury must find defendant knew the owner had stopped consenting to possession by or on the relevant date“Did the court properly deny the defense-requested limiting instruction: 'You, the jury, still must conclude that the defendant knew that the owner had stopped consenting to the possession of the vehicle by that date or on that date[?]'” | unclear | correct | unsure The court does not discuss the instruction or the standard instruction actually given on Vehicle Code section 10851. Without the instructions and the record of the request, there is no basis to assess whether the pinpoint instruction was duplicative, argumentative, or improperly refused; the opinion's bare conclusion cannot be verified. |
No prosecutorial misconduct in arguing that jurors should use common sense, and no ineffective assistance for failure to object“Did the prosecutor commit misconduct during his opening and closing argument by asking the jury to use common sense in evaluating the reasonableness of the evidence?” | unclear | correct | unsure Urging jurors to use common sense is ordinarily permissible argument and does not by itself dilute the reasonable doubt standard, and absent misconduct a failure to object is not deficient performance. The opinion, however, quotes none of the argument, so my agreement rests on the general rule rather than on the record. |
Denial of Romero motion to dismiss two prior strike convictions (1988 involuntary manslaughter with gun use; 1991 robbery)“the court denied Russell's motion to dismiss his two prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.” | unclear | correct | unsure A Romero ruling is reviewed for abuse of discretion, but the opinion does not state the standard or describe the trial court's stated reasons. Given two serious or violent strike priors, a prior section 10851 felony, five probation-denial priors, and a current offense committed while on probation, a refusal to strike would fall well within the trial court's discretion, though the opinion supplies no analysis. |
Judgment of conviction and sentence affirmed after independent Wende review“has disclosed no reasonably arguable appellate issues. Accordingly, we affirm the judgment.” | unclear | correct | agree with court The court followed the Wende/Anders procedure: counsel's brief identified arguable issues, the defendant was given an opportunity to file his own brief, and the court independently reviewed the record. The disposition is the standard and proper one when no arguable issue is found. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous must file a brief referring to anything in the record that might arguably support the appeal, and the defendant must be allowed to raise points on his own.
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — A trial court has discretion under Penal Code section 1385 to dismiss prior strike allegations in furtherance of justice.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure, sets out the procedural and factual background, lists the issues counsel identified, notes the defendant filed no supplemental brief, and affirms after independent review. It contains no substantive analysis of any identified issue, which is permissible in a Wende disposition but leaves the reader unable to verify the conclusions from the opinion alone.
How this analysis was made · dispute it
record incompleteOpinion
Filed 8/16/16 P. v. Russell CA4/1 NOT TO BE PUBLISHED IN 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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069462
Plaintiff and Respondent, v. (Super. Ct. No. SCD262599)
TERRANCE RUSSELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Terrance Russell's appointed appellate counsel has filed a brief asking this court to independently review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment. PROCEDURAL BACKGROUND The San Diego County District Attorney charged Russell in an amended information with (1) unlawfully taking or driving a vehicle (count 1: Veh. Code, § 10851, subd. (a)), and (2) receiving a stolen vehicle (count 2: Pen. Code,1 § 496d). The information alleged as to both counts that Russell previously had been convicted of felony vehicle theft in violation of Vehicle Code section 10851 within the meaning of Penal Code section 666.5, subdivision (a). The information further alleged that Russell had suffered five probation denial priors (§ 1203, subd. (e)(4)), and two strike priors within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12 & 668).2 A jury convicted Russell of count 1,3 and Russell admitted the truth of the allegations he had suffered two prior strikes and previously had been convicted of felony vehicle theft in violation of Vehicle Code section 10851 within the meaning of Penal Code section 666.5, subdivision (a).
At the sentencing hearing on October 23, 2015, the court denied Russell's motion to dismiss his two prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court then sentenced Russell to the middle state prison term of three 1 All further statutory references are to the Penal Code unless otherwise specified.
2 The two alleged prior strikes were a 1988 conviction of involuntary manslaughter with personal gun use (§§ 192, subd. (b) & 12022.5) in People v. Russell et al. (Super. Ct. San Diego County, 1988, CR97032) and a 1991 robbery (§ 211) in People v. Russell et al. (Super. Ct. San Diego County, 1991, CR125658).
3 The court instructed the jury that, although Russell was charged with two counts, he could only be convicted of one of those counts, and, if they found him guilty of count 1, they must return the count 2 verdict form unsigned. 2 years for his count 1 conviction and doubled that term to six years under the Three Strikes law. The court imposed a concurrent low term of two years for the probation violation (§ 273.5, subd. (a)) in People v. Russell (Super. Ct. San Diego County, 2008, SCD215462). The court also dismissed count 2 and ordered various fines and fees, including $17,895.11 in victim restitution (§ 1202.4, subd. (f)).
FACTUAL BACKGROUND
On September 12, 2014, at about 3:00 p.m., Russell went to a U-Haul office in San Diego where he had previously rented equipment. U-Haul employee Montreal Cavalier rented to Russell a 10-foot van box truck. Russell filled out a contract, and Cavalier estimated the rental rate plus mileage and other fees to be $48.58 and no payment was made at that time.
Russell signed the contract, which showed he was to return the truck by September 14, 2014, at 3:00 p.m. The contract contained information that Russell provided, including a phone number, an e-mail address, a physical address, his name, and the serial number of the truck – TM3250B.
Robert Hunsaker, the area field manager for 25 U-Haul facilities, testified that U- Haul's computer system will not allow employees to extend the rental time beyond 30 days. U-Haul will accept payments on the rented equipment after the date it is supposed to have been returned, but not after a vehicle has been reported stolen. Hunsaker would get involved when a truck is late by making notes in the system immediately after any contact or attempted contact with a customer.
3 On September 15, 2014, the day after Russell was supposed to return the truck, Cavalier called him and extended his contract to September 17, 2014.
On September 16, 2014, a log entry in U-Haul's computer system showed that Russell's credit card was declined by the bank. Two days later a U-Haul representative called Russell, who said he would return the truck that night.
On September 19, 2014, after Russell still had failed to return the truck, a U-Haul employee sent an e-mail to the address Russell had provided, specifically referencing the 10-foot moving van and its serial number. The same employee left a voice message notifying Russell that if he did not return the truck, U-Haul would initiate the stolen vehicle process and anyone caught driving the truck would be prosecuted. Cavalier made an entry noting he had called Russell, there was no answer, and he then left a voice mail for Russell to return the call. Hunsaker testified that he did a drive-by that day to see if the truck was at the address given by Russell, but did not find the truck there and made an entry in the system to that effect. He also initiated a "red bar check list" on the schedule log showing Russell was late in returning the truck. Also, Hunsaker asked the U-Haul recovery department to send out a demand letter. Later, Hunsaker filed a stolen vehicle report with the police.
Between September 16, 2014, and September 20, 2014, some payments were made on the account. A September 16, 2014 log entry showed payments of $5 and $10.
Log entries the next day showed payments of $5, $20, $20, and $40. Three days later, on September 20, later log entries showed payments of $50, $100, and $50. Hunsaker, 4 testified that Russell paid a total of $1,150 for the truck he rented. Hunsaker estimated Russell owed about $17,000 on the truck less the $1,150 he paid.
On June 25, 2015, Officer Christopher Spencer of the San Diego Police Department saw a U-Haul truck traveling on Boundary Street and conducted a record check of the truck's license plate, which showed the truck had been reported stolen.
Officer Spencer stopped the truck and arrested Russell. Officer Spencer searched the cargo area of the truck and found it was half full with Russell's personal belongings.
DISCUSSION
Russell's appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the proceedings below and indicating she was unable to find any reasonably arguable issues for reversal or modification of the judgment on appeal. Russell's counsel has identified the following issues that "might arguably support the appeal" (Anders, at p. 744): (1)
"[D]id the court properly admit the U-Haul computer log as a business record under Evidence Code section 1271, an exception to the hearsay rule?"; (2) "Did the court properly deny the defense-requested limiting instruction: 'You, the jury, still must conclude that the defendant knew that the owner had stopped consenting to the possession of the vehicle by that date or on that date[?]'"; (3) "Did the prosecutor commit misconduct during his opening and closing argument by asking the jury to use common sense in evaluating the reasonableness of the evidence?" and "[d]id this lower the burden of proof by equating reasonable doubt with common sense?" and "[d]id counsel render 5 ineffective assistance of counsel by failing to object?"; and (4) "Did the court give proper reasons for declining to strike [Russell] strike convictions?"
We granted Russell permission to file a brief on his own behalf. He did not do so.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues identified by Russell's counsel, has disclosed no reasonably arguable appellate issues. Accordingly, we affirm the judgment. Russell's appellate counsel has competently represented him in this appeal.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Superior Court (Romero) S045097 · 1996-06-20
- People v. Wende Crim. 20851 · 1979-10-12