P. v. Nelson
Filed 1/16/13 P.
v. Nelson CA2/3
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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 THREE
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THE PEOPLE, Plaintiff and Respondent, v. Burnell Nelson, Defendant and Appellant. | B242989 (Los Angeles County Super. Ct. No. MA053090) |
APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, John Murphy, Temporary Judge. (Pursuant to Cal. Const., art.
VI, § 21.) Affirmed.
California
Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court
of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant Burnell Nelson appeals from the judgment entered following his
plea of no contest to residential burglary
with a person present (Pen. Code, §§ 459, 667.5, subd. (c)(21))href="#_ftn1" name="_ftnref1" title="">[1]
and his admissions that he previously had been convicted of burglary within the
meaning of the Three Strikes law (§ § 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)) and served two prison terms (§ 667.5, subd. (b)). The trial court sentenced Nelson to 14 years
in state prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.href="#_ftn2" name="_ftnref2" title="">[2]
On May 23, 2011, Luke Messmer lived at 510 West Huyer Street in Lancaster. One of his neighbors, Sarah
Trama, lived in a house across the street.
On
that date, Messmer saw “a vehicle driving through the neighborhood [area]
slow[ly], checking out garages . . . and [other] property.†The vehicle pulled up in front of Messmer’s
home and, although his garage was closed, Messmer had “property out front and
was protecting it.†The vehicle, a
“white Ford F-150†truck, then made a
loop at the end of the cul-de-sac and stopped in front of Trama’s house. The passenger in the truck, Nelson, got out
and walked up to Trama’s partially opened garage door, then entered the garage.
Messmer,
who had been in his front room, ran outside and across the street. As he was heading for Trama’s garage, the
driver of the truck “beeped the horn one time.â€
As soon as the horn honked, Nelson left the garage and headed back
toward the truck. However, at this
point, Messmer had “got[ten] in between [Nelson] and the vehicle.†Nelson got in Messmer’s face and told Messmer
that “he was there to find an individual with the nickname of ‘T’.†When Messmer told Nelson that there was no
one there who used that nickname, Nelson “brushed up against [Messmer]†as he
attempted to get around him and back into the truck. After the two men exchanged words, they
pushed each other. Nelson got back into
the truck and Messmer, who was standing in front of the truck at that time,
reached for his cell phone, took it out of his pocket and, although he was
unable to get a picture of Nelson, took a photograph of the license plate of
the truck.
Messmer
did “[not] want to be in front of the truck [when it was] running, so [he]
started to move toward the side . . . .â€
The driver of the truck accelerated and, as he pulled away from the
curb, struck Messmer with the side of the vehicle, then drove off. Messmer was “[a]bsolutely certain†that
Nelson was the man who entered Trama’s garage.
Julia
Vezina is a deputy sheriff for the Los Angeles County Sheriff’s
Department. She is assigned to the
“burglary suppression team†at the Lancaster Station. She spoke to a Deputy Waylon about the
incident which took place at Trama’s house on West Huyer Street. Waylon had investigated the
matter, spoken with Trama and determined that, when Nelson entered the garage,
Trama had been at home, inside the house.
2.
Procedural history.
In
an information filed June 29, 2011, Nelson was
charged in count 1 with first degree burglary with a person present (§ 459), a
felony. It was further alleged as to
that count that, absent unusual circumstances, Nelson was not eligible for
probation (§ 462, subd. (a)) as the offense was both a serious (§ 1192.7,
subd. (c)) and violent felony (§ 667.5, subd. (c)) “in that another
person, other than an accomplice, was present in the residence during the
commission of the . . . offense.†In
count 2, Nelson was charged with misdemeanor battery (§ 242).
It
was alleged as to both counts that Nelson previously had suffered five
convictions for burglary, a “serious or violent felony or juvenile
adjudication,†between 1984 and 1991 within the meaning of the Three Strikes
law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In addition, it was alleged that Nelson had
suffered five convictions for the serious felony of burglary, brought and tried
separately, pursuant to section 667, subdivision (a)(1) and that, as to count
1, Nelson had suffered seven convictions for which he served prison terms or
terms in county jail within the meaning of section 667.5, subdivision (b). At proceedings held on July 11, 2011, Nelson
entered pleas of not guilty to both counts and denied the special allegations.
At
a hearing held on November 16, 2011, counsel from the bar panel was appointed
to represent Nelson at trial. Trial,
however, did not begin until June 12, 2012 when a group of prospective jurors
was summoned from the jury room. Even
then, before the jurors entered the courtroom, the trial court indicated that
the People had made an offer to resolve the case. Although Nelson faced a sentence of 25 years
to life plus approximately 32 years in enhancements, the People indicated they
were willing to settle for a term of 25 years to life. Nelson, however, rejected the offer,
indicating that he wanted a determinate term.
After
the prospective jurors entered the courtroom, the trial court seated a group of
18 in the box, had the remainder sit in the courtroom, read them the
information charging Nelson, then gave them a series of instructions.
Voir dire of the
jury continued on June 13, 2012. During
a break in the proceedings and out of the presence of the jury, the prosecutor
indicated that, during trial, he wished to introduce evidence of one or more of
Nelson’s prior burglaries to show Nelson’s intent. The trial court indicated that “[e]vidence of
uncharged misconduct is admissible to prove that the defendant committed the
charged offense with the requisite intent only if intent is in dispute.†Then, “sufficiently similar prior act[s]
[are] admissible.†The trial court
continued: “The defendant’s plea of not
guilty is not sufficient to place the elements of the crime charged against the
defendant in issue. [¶] So, intent is not an issue and [that form of
evidence of it] can’t come in on the People’s case-in-chief.†In response, the prosecutor asserted
that: “In this particular case, though,
there is one distinction. And that is
the fact that during . . . the initial encounter of the primary crime charged
in this case, the defendant put his intent in issue in the statement to the
witness by indicating that he was there [for] some innocent purpose. He said something to the effect of he was
looking for his friend. And to the
extent that he made that statement and that statement is introduced, his intent
is in issue.â€
After the court
made its ruling regarding prior burglaries but before the jurors had returned
to the courtroom, defense counsel indicated that the prosecutor had spoken to
his supervisors and returned with an
offer of “27 years determinant state prison.â€
The trial court responded, “Well, . . . the jurors are on the way. Why don’t we put this on the record a little
later.†The jurors then entered the
courtroom and both the prosecutor and defense counsel were given the
opportunity to question them.
After the
potential jurors left the courtroom for the day, defense counsel indicated to
the court that he had “had an opportunity to discuss [the People’s] offer with
Mr. Nelson. . . .
[Counsel had] told Mr. Nelson [his] opinion and [given] him [his]
analysis of the strengths and the weaknesses of his case†and advised Nelson
with regard to what he thought Nelson should do. After considering the 27-year offer, Nelson
rejected it. He then counter-offered
with 10 to 12 years. The People
immediately rejected Nelson’s counteroffer.
The following
day, out of the presence of the prospective jurors, the parties informed the
trial court that they had reached a disposition. In view of the fact that his prior
convictions occurred in the 1990’s and Nelson was 54 years old, “[i]n the
interest of justice, the People [were] willing to strike all but one of the
priors. [¶] So, . . . the offer [would be] a plea to
count 1 for the high term of six years, with the admission of one strike prior,
which would double it to 12 years, and the admission of two prison priors,†for
each of which he would be sentenced to an additional year. That would be a total sentence of 14 years in
prison.
After he was
advised of and waived his right to a jury or court trial, his right to confront
and cross-examine the witnesses against him, his right to present a defense,
which included the right to use the subpoena power of the court to procure
witnesses on his behalf, and his right against href="http://www.mcmillanlaw.com/">self-incrimination, or to remain silent,
Nelson pled no contest to count 1, first degree burglary in violation of
section 459, and admitted that a person was present at the time. Then, with regard to case No. TA012803, which
alleged that Nelson committed burglary in violation of section 459 on May 15,
1991, Nelson admitted having suffered that conviction within the meaning of the
Three Strikes law. Nelson further
admitted having served two prison terms, one for burglary beginning on May 15,
1991 and one for burglary beginning on September 22, 1987. Defense counsel concurred with the plea and
stipulated to a factual basis for it based upon the police reports, preliminary
hearing transcript and pre-plea report.
The trial court
accepted the waivers, found that they were “knowingly, intelligently,
understandingly, expressly [and] explicitly†made and found Nelson guilty based
upon his plea and admissions. The court
sentenced Nelson to six years in prison for his plea to burglary as alleged in
count 1, then doubled the term to 12 years due to his prior conviction committed
pursuant to the Three Strikes law. In
addition, the court imposed two 1-year terms for Nelson’s “prison priors.†In total, the trial court sentenced Nelson to
14 years in prison. The court then
dismissed all of the remaining counts and allegations and awarded Nelson
presentence custody credit for 388 days actually served and 15 percent, or 58
days, of conduct credit, for a total of 446 days.
Nelson was
ordered to pay a restitution fine in the amount of $500 (§ 1202.4, subd.
(b)), a stayed $500 parole restitution fine (§ 1202.45), a $40 court operations
fee (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov.
Code, § 70373), a $10 crime prevention fee (§ 1202.5), and a $28 penalty
assessment.
Nelson filed a
timely notice of appeal on July 31, 2012.
>CONTENTIONS
After examination
of the record, counsel filed an opening brief which raised no issues and
requested this court to conduct an independent review of the record.
By notice filed
October 30, 2012, the clerk of this court advised Nelson to submit within 30
days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.
>REVIEW ON APPEAL
We have examined
the entire record and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
>DISPOSITION
The judgment is
affirmed.
>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
KITCHING,
J.
ALDRICH,
J.