People v. Appel CA2/6 ( 2021 )

Filed 10/29/21 P. v. Appel CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE OF THE STATE 2d Crim. No. B311282
OF CALIFORNIA, (Super. Ct. No. 2019007331)
(Ventura County)
Plaintiff and Respondent,
v.
ERIC SEREFINO APPEL,
Defendant and Appellant.
Eric Serefino Appel appeals the judgment entered after he
pleaded guilty to assault with a semiautomatic firearm (Pen.
Code,1 § 245, subd. (b); count 1) and possession of cocaine for sale
(Health & Saf. Code, § 11351; count 5). Appellant also admitted
that he personally used a firearm and inflicted great bodily injury
in committing the assault (§§ 12022.5, 12022.7) and that he had a
prior juvenile adjudication for robbery in 2010 that qualified as a
Unless otherwise noted, all statutory references are to the
1
Penal Code.
strike (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d)). The trial
court dismissed the prior strike allegation as to the drug charge
and the personal firearm use allegation as to the assault charge
in the interest of justice pursuant to section 1385. Appellant was
sentenced to an aggregate term of 16 years in state prison,
consisting of the middle term of 6 years for the assault doubled
for the prior strike, plus a 3-year enhancement for the great
bodily injury allegation, plus 1 year (one-third the midterm) on
the drug charge in count 5.
Appellant contends the court abused its discretion in
declining to dismiss his prior strike as to the assault charge in
the interest of justice as contemplated in People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero). He also claims he
should be allowed to withdraw his plea due to ineffective
assistance of counsel. We affirm.
STATEMENT OF FACTS
Because appellant pleaded guilty prior to a preliminary
hearing, the relevant facts are derived from the probation report.
On the night of March 2, 2019, appellant went to a party at Luis
Hernandez’s home in El Rio. Appellant got into an argument
with Hernandez, pulled out a handgun, and shot Hernandez in
the torso. The bullet struck and fractured Hernandez’s spine and
approximately two feet of his intestines had to be removed. The
police subsequently searched appellant’s residence and found
68.1 grams of cocaine, a digital scale, baggies, ammunition, and
$5,680 in cash.
Several weeks after the shooting, appellant claimed he had
acted in self-defense because Hernandez and his father stood in
front of his car to prevent him from leaving. He also stated his
belief that a 16-year prison sentence would be excessive and
2
unfair because “[t]here was only one shot which does not make
this an assault case” and he merely “used one round (of
ammunition) to defend himself.”
DISCUSSION
I.
Romero Motion
At his sentencing hearing, appellant brought a Romero
motion to dismiss his prior strike for robbery in the interest of
justice. The court granted the motion as to the drug charge, but
denied it as to the assault. Appellant contends the court abused
its discretion by declining to dismiss the strike prior as to both
offenses of which he was convicted. We are not persuaded.
In deciding whether to grant a Romero motion, the trial
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.’ [Citation.]” (People v.
Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
We review rulings on a Romero motion for abuse of
discretion. (Carmony, supra, 33 Cal.4th at p. 376.) “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
3
aside on review.”’ [Citations.] Second, a ‘“decision will not be
reversed merely because reasonable people might disagree. . . .”’
[Citations.] 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.” (Id. at pp. 376-377.)
At the sentencing hearing, appellant waived his right
under People v. Arbuckle (1978) 22 Cal.3d 749, to be sentenced by
the judge who took his plea. Defense counsel urged the court to
dismiss the strike prior pursuant to Romero on the ground that
the prior was nine years old and appellant was “now in his mid to
late 20[’]s.” In ruling on the motion, the court stated: “I grant
the motion as to Count 5 [the drug charge]. . . . [T]he strike prior
had occurred back in 2010. And the charge in Count 5 is
nonviolent related. So in my view, the passage of time warrants
that type of consideration as it relates to that particular charge.
Count 1, however, is a crime of violence. In my view, extreme
violence, use of a firearm and great bodily injury. I will note that
between his first foray into the criminal justice system and now
there is also a [section] 243 sustained [juvenile delinquency]
petition in 2008, also a crime involving violence. And I don’t
believe the passage of time mitigates the seriousness of this
particular offense as it relates to Count 1. So the motion is
denied as to Count 1.”
Appellant fails to meet his burden of showing that the
court’s denial of his Romero motion was an abuse of discretion.
The record reflects that the court fully considered all relevant
factors in finding that the prior strike enhancement should apply
with regard to the drug charge, but not the assault charge.
Contrary to appellant’s claim, the court did not “simply follow the
4
file notes” of the judge who took his plea. Moreover, there is
nothing to indicate that the court misunderstood the scope of its
discretion or considered impermissible factors in deciding
whether to strike the prior. Accordingly, this case does not
present the “limited circumstances” in which the denial of a
Romero motion amounts to an abuse of discretion. (People v.
Leavel (2012) 203 Cal.App.4th 823, 837.) In arguing otherwise,
appellant essentially asks us to reweigh the relevant factors and
reach a different conclusion than the one reached by the trial
court. Based on the record before us, appellant has not shown
that the trial court’s denial of his Romero motion as to the assault
charge was “so irrational or arbitrary that no reasonable person
could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
II.
Ineffective Assistance of Counsel
Appellant also contends that he should be allowed to
withdraw his plea on the ground of ineffective assistance of
counsel (IAC). He claims that his retained trial counsel spent
insufficient time discussing the case and evidence with him and
did not adequately represent him at the sentencing hearing.
Appellant did not move to withdraw his plea in trial court,
so his IAC claim is forfeited.2 (People v. Turner (2002) 96
Cal.App.4th 1409, 1412-1413.) The claim is also forfeited because
it is not supported by any citations to evidence in the record.
2 Appellant first raised his IAC claim in a request for a
certificate of appealability (labeled as a request for a certificate of
probable cause), which the trial court granted. Because appellant
never moved to withdraw his plea and his request for a certificate
of appealability is based on counsel’s performance prior to and
during the sentencing hearing, it is unclear why his request for a
certificate of appealability on this issue was granted.
5
(People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 25.) As the
People accurately note, “[a]ppellant does not cite to the record to
support his factual allegations precisely because there is nothing
in the record to support them.” Appellant’s IAC claim thus fails.
(See Strickland v. Washington (1984) 466 U.S. 668, 687 [80
L.Ed.2d 674] [IAC claim requires showing of both deficient
performance and resulting prejudice].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
David Lehr, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Michael Katz, Deputy Attorney
General, for Plaintiff and Respondent.