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People v. Burton

California Court of Appeals, Fourth District, Second Division
Feb 23, 2011
No. E050248 (Cal. Ct. App. Feb. 23, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF150477, Robert E. Law, Judge. (Retired judge of the former Orange Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

McKINSTER, J.

Defendant and appellant Dimitri Turrell Burton appeals after he was convicted of first degree burglary (Pen. Code, § 459), grand theft from an elder person (§ 368, subd. (d)), and petty theft (§ 484, subd. (a)). Defendant admitted a strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), and a prior serious felony conviction (§ 667, subd. (a)). He appeals, contending that the enhancement admissions (strike prior and prior serious felony conviction) should be reversed because the trial court did not advise him of his constitutional rights before taking those admissions. He also contends that the trial court abused its discretion in declining to dismiss his strike prior in the interests of justice. We affirm.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTS AND PROCEDURAL HISTORY

Defendant visited his grandfather several times at a nursing home. The grandfather shared his room with another patient, Ricardo Bautista. Bautista was 74 years old and had suffered a number of strokes. He was partially paralyzed, bedridden, and had difficulty speaking. Defendant took the cell phone that was strapped to Bautista’s bed. Defendant also removed Bautista’s wall-mounted flat panel television set, put the television set into a pillow case, and placed it outside the sliding glass door. A nurse’s aide saw defendant riding away on his bicycle, carrying a pillowcase. Telephone records showed that Bautista’s cell phone was used to make calls to defendant’s home and to his relatives.

Defendant was charged with, and the jury found him guilty of, the following felony charges: first degree burglary against an elder person (count 2) (§§ 459, 667.9, subd. (b)), grand theft from an elder person (count 4) (§ 368, subd. (d)), and petty theft with a prior (count 6) (§§ 484, subd. (a), 666). Other charges had been dismissed on defendant’s motion. The operative pleading also alleged that defendant had one strike prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one serious felony prior (§ 667, subd. (a)), and one prison term prior (§ 667.5, subd. (b)). Defendant elected to admit the strike prior and the prior serious felony allegations. The court dismissed the prior prison term enhancement.

The court sentenced defendant as follows: It imposed the middle term of four years (doubled to eight years as a second strike) on the burglary, plus two years for the elder and disabled person enhancement under section 667.9. It imposed a term of two years for grand theft from an elder person, plus five years for the prior serious felony allegation. The court stayed sentence on count 6, felony petty theft with a prior, pursuant to section 654. Defendant’s total sentence amounted to 17 years in state prison.

Defendant filed a timely notice of appeal, challenging his admission of the priors, and the court’s refusal to dismiss defendant’s strike prior.

ANALYSIS

I. Defendant Knowingly and Intelligently Admitted the Prior Convictions

Defendant first contends that his admission of the prior convictions should be reversed, because the trial court failed to advise him of his constitutional rights before taking the admissions.

Before accepting an admission of a prior conviction, the trial court is required to advise the defendant of three important constitutional rights: the right to a jury trial, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. (People v. Howard (1992) 1 Cal.4th 1132, 1175-1176.) However, when a defendant is not given full Boykin-Tahl advisements, reversal is required only if the record does not demonstrate that the plea was knowingly and intelligently entered. (People v. Allen (1999) 21 Cal.4th 424, 438.) “In replacing the old rule, the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived.... Now, if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances.” (People v. Mosby (2004) 33 Cal.4th 353, 361.)

Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] (federal) and In re Tahl (1969) 1 Cal.3d 122 (state).

The totality of the circumstances on the entire record militate here in favor of a finding that defendant knowingly and voluntarily admitted the prior conviction allegations. When defendant appeared for arraignment on the charges, the court advised him of his constitutional rights, expressly including the right to trial by jury, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. In addition, defendant has a prior record of conviction of a serious or violent felony, so he is not inexperienced with respect to knowledge of his constitutional rights. After the preliminary hearing, defendant was again advised expressly of his constitutional rights, and the trial court expressly found that he understood those rights. At that time, defendant pleaded not guilty to all the charges. He also specifically denied the various enhancements and prior conviction allegations.

On the first day of jury trial, November 13, 2009, defense counsel moved to bifurcate trial on the prior offense allegations. The court granted the motion. After the first day of testimony, defense counsel brought up the issue of waivers: “Your Honor, I don’t know that we took a waiver to bifurcate his priors. A waiver of jury. I don’t know if we did that....” The court took up the matter, advising defendant that defense counsel “has indicated that she and you are going to waive your right to have this jury decide whether or not you have been convicted of the prior offenses alleged. Do you understand that?” Defendant replied, “Yes.” The court pursued the matter a bit further, advising defendant that, if he gave up the right to a jury determination, the court would review the documents to decide whether the convictions had been proven. “Do you want to give up your right to a jury trial and have this court decide whether or not you’ve been convicted?” Defendant again replied, “Yes.”

At the trial itself in this case, defendant was represented by counsel, in front of a jury, and his counsel cross-examined the witnesses called by the prosecution. Defendant elected not to testify, and was thus ostensively aware of his privilege against self-incrimination. The jury retired for deliberations and rendered a verdict in this case.

After the verdicts were entered, defense counsel indicated that defendant wished to proceed to immediate sentencing, not waiting for a sentencing report. The court stated, “we haven’t dealt with the priors yet.” Other remarks of the court and counsel suggested that discussions had been held off the record, to the effect that defendant intended to admit the prior offense allegations. The court then asked defendant directly if he wished to admit the prior offenses, and he said, “Yes, sir.” The court identified each prior offense separately (a commercial burglary conviction in 2003, for which he had been sentenced to state prison but had not remained free from prison for five years, and a residential burglary conviction in 1999), and defendant admitted each one individually. The court denied the request for immediate sentencing and set the matter for sentencing upon receipt of a probation report.

As the probation report makes clear, defendant’s record is such that he is not unfamiliar with the criminal justice system, and the rights it entails, as he has six prior criminal and vehicle convictions predating the instant offenses.

People v. Mosby, supra, 33 Cal.4th 353, parallels this case. There, the trial court had advised the defendant that he was entitled to have a jury trial on the truth of a prior felony conviction allegation. The defendant expressly waived the jury trial right. After the guilty verdict, the defendant admitted the prior conviction allegation. On appeal, the defendant contended, as defendant does here, that the admission was invalid because the court failed to give a complete advisement of constitutional rights before taking the admission. (Id. at pp. 357-358.) The California Supreme Court ultimately ruled that the defendant had knowingly and voluntarily admitted the prior conviction. The defendant had just experienced a jury trial. He had elected not to testify, and thus “not only would have known of, but had just exercised, his right to remain silent at trial....” (Id. at p. 364.) The defendant had just, through his counsel, confronted and cross-examined the witnesses at trial, and therefore “he would have understood that at a trial he had the right of confrontation.” (Ibid.) Moreover, the California Supreme Court took account of the defendant’s previous experience in the criminal justice system, as relevant to the defendant’s “knowledge and sophistication regarding his [legal] rights.” (Id. at p. 365.)

All the same factors and circumstances are applicable here: Defendant was expressly advised of his constitutional rights as generally applicable to the trial. He was expressly advised of and waived the right to a jury trial on the prior conviction allegations. He was experienced in the criminal justice system. He had just experienced a jury trial on the main charge. He had just, through counsel, confronted the witnesses against him. He had just exercised his right to remain silent at trial. Under the totality of the circumstances on examination of the entire record, it is plain that defendant’s admission of the prior conviction allegations was knowing, voluntary and intelligent.

II. The Trial Court Did Not Abuse Its Discretion in Declining to Dismiss Defendant’s Strike Prior

Defendant next contends that the trial court abused its discretion in denying his request, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to dismiss his strike prior in the interests of justice. The contention is without merit.

The circumstances of the current offenses, and of the offender (defendant) made manifest that defendant has a serious prior criminal record, including more than one burglary conviction. The instant offense shows that defendant was fully willing to take advantage of a helpless victim, and indeed to place him at great risk by stealing the cell phone and disabling the emergency call button, thus preventing the victim from all communication or summoning help, even if medically required. Consideration of defendant’s age (30 years old), although proper (In re Saldana (1997) 57 Cal.App.4th 620, 626-627), does not indicate that he does not come within the spirit of the “Three Strikes” law. Rather, he is of an age to know better. The circumstance that defendant “has a family and children to support, ” is belied by the information in the probation report, which indicates that, although defendant has two children of a marriage, the spouses are separated and defendant does not know where his wife is. Defendant is not caring for his children himself; his mother-in-law has custody of them. He also has three other children of whom he does not have custody. Defendant’s strike conviction may be somewhat remote (10 years old), but he also committed other serious offenses in the interim, for which he was sentenced to state prison, yet he did not remain free from prison custody for five years before committing the instant offenses. Indeed, he was convicted of other offenses only one year before the current crimes. Defendant repeatedly victimizes others, and has done so over a long period of time. He failed to show that he should be considered outside the spirit of the Three Strikes Law; rather, he is precisely the kind of recidivist, opportunistic offender to whom the law is intended to apply.

DISPOSITION

The judgment is affirmed.

We concur: HOLLENHORST, Acting P.J., KING, J.


Summaries of

People v. Burton

California Court of Appeals, Fourth District, Second Division
Feb 23, 2011
No. E050248 (Cal. Ct. App. Feb. 23, 2011)
Case details for

People v. Burton

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DIMITRI TURRELL BURTON, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 23, 2011

Citations

No. E050248 (Cal. Ct. App. Feb. 23, 2011)