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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
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