P. v. Burton

Filed 1/28/09 P. v. Burton CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Russell Rantford Burton challenges the sentence entered after he pleaded no contest to a count of simple kidnapping (Pen. Code,  207)^[1]and acknowledged he had been convicted in Harris County, Georgia of one count of rape and three counts of kidnapping. Appellant contends that the admissible evidence presented was not sufficient to prove the Georgia convictions qualified as California strike offenses and, therefore, he should have been sentenced to 10 years in prison instead of 25 years to life.

We conclude the admissions and stipulations made by appellant at the change of plea hearing preclude him from arguing the Georgia convictions were not California strike offenses. The judgment is affirmed.

FACTS AND PROCEEDINGS

In 1987, appellant allegedly kidnapped three females in Harris County, Georgia. In 1988, a grand jury returned a true bill of indictment containing 10 counts. A jury convicted appellant of one count of rape, three counts of aggravated sodomy, and three counts of kidnapping. (Burton v. State (1989) 191 Ga.App. 822 [383 S.E.2d 187].)

In 2001, a federal district court overturned the convictions on the grounds of improper argument and cross-examination. The Eleventh Circuit Court of Appeals affirmed the district court. (See Burton v. Hicks (11th Cir. 2002) 31 Fed.Appx. 931 [table denotes affirmance].) As a result, appellant was released and returned to his hometown of Palmdale, California.

In the fall of 2003, Harris County officials decided to retry appellant. In December 2003, appellant pleaded guilty to one count of rape and three counts of kidnapping. The court sentenced him to 20 years, gave him credit for 14 years served, and placed him on six years probation.

On February 26, 2004, about two months after his guilty plea in Georgia, appellant was involved in incidents that led to criminal charges in Los Angeles and Kern Counties.

On July 2, 2007, appellant was charged by information in Kern Superior Court with three counts of kidnapping with intent to commit rape ( 209, subd. (b)(1)), one count of assault with a deadly weapon ( 245, subd. (a)(1)), and one count of criminal threats ( 422).

The information also alleged that, on December 22, 2003, in Harris County, Georgia, appellant was convicted of four serious felonies (one rape and three kidnappings) within the meaning of section 667, subdivision (a). The information further alleged that the same four felony convictions were prior felony offenses within the meaning of subdivisions (c) through (j) of section 667 and subdivisions (a) through (e) of section 1170.12.

In December 2007, appellant and the prosecution entered a plea agreement. The prosecution agreed to amend the information to include a simple kidnapping charge and appellant agreed to plead to that new count. On December 21, 2007, the superior court granted the prosecutions motion to amend the information by adding a simple kidnapping charge as count 6. Pursuant to the negotiated plea agreement, appellant waived his right to trial and pleaded no contest to count 6.

At the change of plea hearing, the superior court stated: Mr. Burton, your attorney has said that you are prepared to enter change of plea to that new count, admit four allegations under section 667 E. Is that what you are willing to do here this morning? Appellant responded, Yes, Your Honor.

The superior court advised appellant of the consequences of his change in plea with the following statement. First of all, the sentence that would bethe sentence the Judge would be considered and be required to impose is a sentence of 25 years to life if he chose not to strike any of the 667 priors. Do you understand that? Appellant stated that he understood.

The superior court also stated: I have no idea whether or not theres any possibility of the settlement conference judge striking any of those priors, but I want to advise you that should he decide not to, then it is mandatory that you receive the 25 years to life sentence, first of all. Do you understand that? Again, appellant stated that he understood.

The superior court also informed appellant that, if the prior convictions were not struck, it would be mandatory that the sentence of 25 years to life run consecutive to any sentence appellant was serving already, which would mean that your exposure after this sentence is a minimum of 81 years in state prison.

Appellant then pleaded no contest to the simple kidnapping count based on the incident that occurred in Kern County on February 26, 2004.

[Deputy District Attorney]: It is further alleged that youthat on or about December 22nd, 2003, in the Superior Court, County of Harris, State of Georgia, case number 88CR6957 was convicted of a prior felony offense, to wit, rape within the meaning of subdivisions C through J of Section 667 and subdivisions A through E of Section 1170.12. Do you admit that prior?

[Appellant]: Yes, I was convicted of that.

[Deputy District Attorney]: It is further alleged that you on or about December 22nd, 2003, in the Superior Court, County of Harris, State of Georgia, case number 88CR6957 was convicted of a prior felony offense, to wit, kidnapping within the meaning of subdivision C through J of Section 667 and subdivisions A through E of Section 1170.12. Do you admit that prior?

[Appellant]: Yes.

The deputy district attorney repeated the same allegations regarding the other two kidnapping convictions from Georgia and appellant responded Yes both times.

The superior court then granted a motion to dismiss the remaining counts and allegations on the condition that the plea remain in effect. The superior court found there was a factual basis for the plea and entered a finding of guilt as to count 6.^[2] The superior court referred the matter to the probation department for presentence investigation and scheduled sentencing.

Before sentencing, appellant filed a notice of motion to preclude a three strikes sentence of 25 years to life on the ground appellants three Georgia kidnapping convictions did not qualify as serious felony offenses. Appellant also requested the dismissal of all but one of the four Georgia convictions, which would have resulted in a sentence of 10 years in prison, consecutive to the 56 years to life that he was serving in a Los Angeles County case.

Appellant supported his motion by attaching copies of (1) the 1988 true bill of indictment from the Harris County grand jury, (2) the rights waiver form for appellants guilty plea, (3) the transcript of the guilty plea hearing, and (4) the document that reflected the guilty plea and sentence imposed.

The superior court heard the motion to strike the prior convictions at the sentencing hearing. The superior court denied the motion and sentenced appellant to a term of 25 years to life.

Appellant filed a timely notice of appeal.

DISCUSSION

Meaning of the Plea Agreement

The prosecution contends that appellant admitted his Georgia convictions were serious and violent felonies for purpose of the three strikes law. Based on this admission and the fact appellant accepted the benefits of the plea bargain, the prosecution contends that appellant is barred from arguing the evidence was insufficient to support a finding that those convictions were strike offenses under California law.

In response, appellant argues that the record does not support the prosecutions contention that he explicitly admitted the Georgia convictions constituted strikes and serious felony offenses under California law.

The appellate briefing submitted by the parties does not identify the rules of law applied by courts of review to resolve disputes regarding the meaning of an oral plea agreement. Consequently, we will set forth those rules here.

A. Rules for Determining Meaning of an Oral Plea Agreement

A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).)

The meaning of a contract is ascertained from its language. The language controls when it is clear and explicit and does not produce an absurdity. (Civ. Code,  1638.) Therefore, in the context of a plea agreement, reviewing courts begin with the language of the plea agreement concerning sentencing, as the trial court recited it on the record. (Shelton, supra, 37 Cal.4th at p. 767.)

B. Meaning of Appellants Admissions

In this case, the deputy district attorney recited the allegations regarding the Georgia convictions as set forth in the information. The information alleged each of the Georgia convictions was a prior felony offense within the meaning of Californias three strikes law. Next, appellant was asked, Do you admit that prior? With respect to the rape conviction, appellant responded, Yes, I was convicted of that. With respect to the three kidnapping charges, appellant responded, Yes.

We conclude the question (Do you admit that prior?), which was preceded with a recitation of the allegations in the information, clearly meant that appellant would be admitting both the existence of the conviction and the allegation that the conviction was a strike offense under California law. The phrase that prior necessarily referenced the description given immediately before the question, and that description clearly described the conviction as a prior felony offense within the meaning of Californias three strikes law.

Furthermore, other statements made by the trial court are consistent with this meaning. When the trial court described the consequences of the plea, it spoke only in terms of the potential for the prior convictions to be struck. It never mentioned the possibility that the prior convictions might not qualify as strikes for purposes of sentencing. For example, the trial court advised appellant that his mandatory sentence would be 25 years to life if the sentencing court chose not to strike any of the 667 priors.

Accordingly, we conclude that appellant admitted the Georgia convictions were strike offenses for purposes of Californias three strikes law and, therefore, cannot argue otherwise on appeal. Consequently, the superior court entered the correct sentence after it determined not to strike the Georgia convictions pursuant to its discretionary authority.

DISPOSITION

The judgment is affirmed.

__________________________

DAWSON, J.

WE CONCUR:

________________________________

VARTABEDIAN, Acting P.J.

________________________________

KANE, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1]All further statutory references are to the Penal Code.

^[2]This opinion does not set forth the factual details of the offense because appellant is not challenging his plea.