P. v. Burton

Filed 10/24/06 P. v. Burton CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert J. Perry, Judge. Affirmed in part and reversed in part.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted appellant Russell Rantford Burton of stalking Anna Guzzetti (Pen. Code, § 646.9; undesignated section references are to that code), attempted kidnapping of and making a criminal threat against Audrie Garcia (§§ 664/207, 422) with findings of deadly weapon use (§ 12022, subd. (b)(1)), and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). Appellant was acquitted of attempted kidnapping of Ms. Guzzetti and attempted kidnapping of Ms. Garcia with intent to commit rape (§ 209, subd. (b)(1)). The court found that appellant had suffered four prior serious felony and strike convictions (§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)).

Sentenced to a term of 81 years to life, appellant contends that: (1) substantial evidence does not support the convictions for stalking and cocaine possession; (2) three of the prior, non-California convictions do not qualify as strikes or serious felonies; and (3) the sentence constitutes unconstitutional cruel and unusual punishment. We will reverse the stalking conviction, but affirm the rest of the judgment.

FACTS

Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that at about 12:15 p.m. on February 26, 2004, Anna Guzzetti drove from her Rancho Vista workplace to a Target Store, and shopped for about half an hour. As she began to leave the Target parking lot, Ms. Guzzetti noticed a blue Chevrolet Suburban. When she departed the lot, the vehicle drove right behind and close to hers. Ms. Guzzetti was not concerned; she thought the driver, like her, simply wanted to traverse to the adjacent shopping center.

In that center, Ms. Guzzetti parked near a shoe store she wished to visit. When she emerged from it and reached her car, she noticed the Suburban drive by. Wearing sunglasses and with his window down, the driver (appellant) was looking at her. As Ms. Guzzetti left the second lot, she saw the Suburban following her again, and she became afraid. She turned and proceeded down a street. The Suburban followed her, “almost,” in her words, tailgating. Instead of turning toward her home, Ms. Guzzetti crossed into a left turn lane. Appellant moved there too. Ms. Guzzetti speedily turned into a small shopping center, in which a friend of hers ran a salon, which was always crowded. She parked and hurried to the salon. After she reached it, she saw the Suburban enter the parking lot. She asked her friend to watch for the Suburban, and eventually was told that it had left. Ms. Guzzetti then proceeded home and called police.

Ms. Guzzetti estimated she had driven two to three miles between the shoe store and the salon. The entire incident, following her leaving Target, took at most 15 minutes. Ms. Guzzetti identified appellant as the person who had driven the Suburban. She stated that, as a mother who had been robbed the year before, she had been fearful as she swerved into the left turn lane, seeking a place of safety.

The same afternoon, Audrie Garcia, age 18, was walking home from the Antelope Valley Shopping Center. Her boyfriend was walking separately ahead of her, as they had had an argument. Ms. Garcia saw a blue Suburban stop, and the driver, a man, got out and walked to the back. Shortly, she encountered him. He said, “If you don’t get in my car, I am going to stab you, bitch.” Ms. Garcia observed that he held a knife in his right hand. She responded, “No,” backed away, and began walking in the opposite direction from before. The Suburban briefly drove alongside her, but she again changed direction, knowing that the vehicle could not turn around. Ms. Garcia also wrote down part of its license number.

Ms. Garcia then ran toward her home. When she reached her boyfriend she stopped, and vomited from fear. She resumed running, and when she got home she called 911. At trial, she identified appellant from her observations of him.

Testifying to uncharged but contemporaneous acts (Evid. Code, § 1101, subd. (b)), Patricia G., age 16, stated that later the same afternoon, she and her sisters, Lourdes and Claudia, came out of a drugstore in Rosamond, Kern County. A man (appellant) came up and asked them for a ride to his brother’s house, stating he had run out of gas. The sisters agreed, and appellant got into their Toyota Corolla, sitting next to Patricia in the right rear seat.

When the group reached a street that turned into a dirt road, appellant grabbed Patricia’s neck and stated he would hurt her if he weren’t driven where he told the sisters. He displayed a weapon that seemed to Patricia to be a long nail, which he held near her neck. The group drove up the dirt road. Appellant told them to go left, into the desert. After a few minutes, the driver, Lourdes G., asked appellant why he was doing this, and he said that police were following him. They agreed to return to his car. Lourdes drove back to the drugstore, where appellant began driving the Toyota while Lourdes drove the Suburban. At a residential area, both cars stopped, and appellant returned to vehicle and left.

Claudia G. gave the same account as had Patricia, but she added that while they were driving in the desert, appellant stated he heard helicopters following him, and ordered the car stopped so he could listen for police sirens. Claudia identified appellant in court, and also recounted how, like Patricia, she had recognized him in a newspaper photograph the day after the abduction. She also identified appellant’s vehicle, as a blue Suburban.

Lourdes G., the eldest sister at 21, also identified appellant. She stated that the item he had held to Patricia’s neck had been a screwdriver, and that as they drove appellant began smoking something that he said was crack. She had switched cars to appellant’s Suburban because he was afraid it was being watched.

Los Angeles Sheriff’s Deputy Steven Lankford received word that the Suburban had been located, and he went to a residential area of Palmdale, where he arrested appellant the day after the incidents. In appellant’s pocket and the Suburban, deputies found several pieces of rope. Deputy Lankford found a knife in a console compartment, and the center console contained a glass pipe and three rocks that appeared to be rock cocaine. It was stipulated that these comprised .06 grams of substance containing cocaine base. On cross-examination, Deputy Lankford confirmed that appellant was smoking crack when the deputy approached him. And appellant later testified he did not get a chance to smoke all of it because the deputy recovered some.

In defense, appellant first called Terri Blosser, the mother of his child and owner of the Suburban, which he had taken from the home they shared. He had done this after going on a crack cocaine binge. Ms. Blosser opined that appellant was not a violent individual, but had become unreliable while smoking crack.

Appellant then testified in his own behalf. He stated that on the day of the offenses he had been addicted to and smoking crack cocaine, in the Suburban. He had not slept for several days, was hallucinating, and believed that helicopters were following him. He sought refuge among “civilians.” At one point appellant put his the hot pipe onto the console and made a u-turn, which caused the pipe to fall onto the floorboard. He stopped the Suburban, was unable to reach the pipe, and so got out and retrieved it. At that point he encountered Ms. Garcia. Holding only the pipe, not a weapon, appellant may have said something to her, but he did not threaten her or demand that she enter his vehicle, which he did not want. As he drove away, he saw Ms. Garcia writing down his license.

Appellant testified he had no recollection of the incident involving Ms. Guzzetti, but that he did not intend to kidnap her or to place her in fear by following her. As for the G. sisters, appellant had smoked crack in the bathroom of the drugstore, and he believed that a dragnet was forming around him. To escape, he asked the sisters for a ride, and they agreed. Eventually he produced a “poker,” made from a sunglass temple, and asked Lourdes G. to drive him from pursuit; but he did not intend to harm anyone. Later, he abandoned holding the poker and apologized, then started smoking crack in the G. car. He had Lourdes exchange vehicles with him briefly to avoid surveillance.

Upon appellant’s waiver of jury trial, the court received evidence and found that appellant had previously suffered four felony convictions in Georgia, which qualified as strikes and as serious felonies for enhancement. Among the evidence introduced were appellant’s original judgment of conviction after jury trial in 1987, a 2002 opinion of the United States Court of Appeals for the Eleventh Circuit, sustaining a district court’s grant of relief from that judgment under 28 United States Code section 2254 (habeas corpus), and appellant’s subsequent 2003 plea of guilty to the four offenses in exchange for a sentence of time served, as well as the ensuing judgment.^[1]

DISCUSSION

1. Sufficiency of Evidence - Stalking.

Appellant contends that the evidence on his conviction of stalking Ms. Guzzetti was insufficient to establish the elements of that offense. Relevant subdivisions of section 646.9, set forth below and cited hereafter as subdivisions, provide for these elements.^[2] Appellant urges that his pursuit of Ms. Guzzetti among the shopping center parking lots constituted a single act under subdivision (f), and therefore was not a course of conduct and hence harassment, as defined in subdivisions (e) and (f). Appellant relies on the brief time involved and the identity of the conduct, which he terms “one continuous act of following Ms. Guzzetti . . . .”^[3] Respondent counters that appellant’s temporally separate driving, when following Ms. Guzzetti from the Target parking lot to the shoe store lot, and then from that lot and along the street to the location of the salon, constituted “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose,” i.e., the requisite course of conduct. (Subd. (f).)

We believe that appellant has the better of this argument. It is clear that the statute is aimed at conduct committed in more than one instance. The alternative element of following, upon which respondent does not rely, expressly requires that the following be “repeate[d].” (Subd. (a).) That requirement has been construed as denoting multiple occasions. (People v. Heilman (1994) 25 Cal.App.4th 391, 400 & fn. 5.) And the “repeatedly” criterion in subdivision (a) has been held not to apply to “harasses” only because, as defined, “harassment includes multiple acts.” (Heilman, supra, at p. 399.) We perceive subdivision (f)’s definition of course of conduct, as “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose,” as contemplating more than a continuous, closely-spaced series of identical acts, with a single purpose. Because the evidence was insufficient in this respect, we need not consider appellant’s further contention that only speculation supported the specific intent requirement for stalking.

2. Sufficiency of Evidence - Drug Possession.

Appellant challenges his cocaine possession conviction on the basis that there was insufficient evidence to establish the element that the drug was of a quantity sufficient for use. (People v. Leal (1966) 64 Cal.2d 504, 512.) Emphasizing that the substance containing cocaine weighed only .06 grams, appellant argues that without qualified opinion evidence that this amount was sufficient for use, that element was unproven.

The contention is unavailing. “[T]he Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace.” (People v. Rubacalba (1993) 6 Cal.4th 62, 66.) Moreover, the presence of a usable quantity may be established by circumstantial evidence. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Here, the substance was found in the form of three rocks, adjacent to a glass pipe. Their presence and retention indicated potential for use. “The prosecution bears its burden when it shows the substance defendant possessed . . . was of a quantity which could be potentiated by consumption in any of the manners customarily employed by users . . . .” (People v. Piper (1971) 19 Cal.App.3d 248, 250. The evidence here, which did not show only “useless traces or debris of narcotic” (ibid.), was sufficient to show possession of useable cocaine. Appellant’s subsequent testimony only confirmed that.

3. Qualification of Appellant’s Georgia Kidnapping Convictions.

Appellant next contends that respondent did not show that appellant’s three Georgia kidnapping convictions qualified as serious felony and strike convictions. In particular, appellant argues that the federal appellate opinion in his habeas corpus proceeding was not properly considered in proving the convictions, and that the remaining evidence did not establish the issue.

As we recently reiterated, to serve as a serious felony for enhancement and a strike, “the prior foreign conviction ‘must involve conduct that would qualify as a serious [or violent] felony in California.’ [Citation.]” (People v. Jenkins (2006) 140 Cal.App.4th 805, 810.) To determine this, “‘the court may consider the entire record of the prior conviction as well as the elements of the crime.’” (Ibid.) But “If the record insufficiently reveals the facts of the prior offense, the court must presume the prior conviction was for the least offense punishable under the foreign law. [Citations.]” (Ibid.)

Both parties agree that the basic elements of kidnapping under Georgia law do not require the extent of asportation that is required for the offense in California. (Cf., e.g., People v. Martinez (1999) 20 Cal.4th 225, 235 [asportation must be substantial in character] with Helton v. State (1983) 166 Ga.App. 662, 663 [305 S.E.2d 592] [“only the slightest movement of the victim is required to constitute the necessary element of asportation”]. Therefore, the “least offense” punishable as kidnapping in Georgia would not constitute that offense here. However, the federal appellate opinion introduced below recited that the perpetrator of appellant’s offenses moved his three victims a substantial distance; they were driven from a city to a “remote wooded area.”^[4]

In People v. Woodell (1998) 17 Cal.4th 448, 456-457, the Supreme Court held that an appellate opinion may constitute part of the record of proceedings of a conviction, which may be consulted in determining the nature of the conviction. Nevertheless, appellant urges that the opinion in his federal habeas corpus proceeding was not so admissible, principally because it was not part of the record of appellant’s subsequent convictions by guilty plea, and indeed involved a different case, namely a federal collateral attack on appellant’s original but now superseded conviction.^[5]

We need not further address this claim, however, for two reasons. First, by failing to object when the federal opinion was introduced in evidence below, appellant waived his right to pursue such an objection on appeal. (See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531.) Second, in moving to admit evidence of appellant’s convictions, respondent informed the court that “The trial transcript [of appellant’s] jury trial in Georgia is also available and will be lodged with the court on request.” (Footnote omitted.) “[T]he transcript was admissible to prove the conduct underlying the conviction.” (Ibid.) And there is no suggestion that the trial transcript reflected any different an account of the asportation in appellant’s case than did the federal opinion. Therefore, resort to that opinion, even if it were error, was entirely harmless; further proceedings on the question would produce an identical result.^[6]

4. Cruel and Unusual Punishment.

Appellant finally contends that his sentence of 81 years to life, comprising three terms of 25 years to life plus a one-year weapons enhancement and a five-year prior serious felony enhancement, is unconstitutionally cruel and unusual. We do not agree.

Appellant’s argument necessarily focuses on a claim that his three-strikes sentence is grossly disproportionate to the present offenses, for which it was imposed. In this regard, he cites recent decisions holding unconstitutional three-strikes sentences for nonviolent offenses against property or governmental authority. (Appellant also acknowledges, however that such sentences also have been sustained, by the United States Supreme Court. (E.g., Ewing v. California (2003) 538 U.S. 11.) Appellant further notes that the predicate strike offenses were committed more than 16 years before the current ones.

Appellant’s arguments are insufficient. His prior strikes were for serious, violent offenses. So were two of the three convictions for which he was originally sentenced here, presently including the attempted kidnapping of a young woman, using a knife. The interim between the two sets of offenses was consumed mostly by imprisonment, which did not restrain appellant from recommencing the same type of crime upon release. Given appellant’s unbroken history of violent crime, we cannot find this case to be one of the admittedly rare ones in which the recidivist sentence is unconstitutional.

DISPOSITION

The judgment is reversed as to count 4 (stalking), and the trial court is directed to enter a judgment of acquittal on that count. The remainder of the judgment is affirmed. The sentence on count 4 is stricken, and the trial court is directed to prepare and provide to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the disposition of the count and its sentence.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

BOLAND, J.

FLIER, J.

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^[1] The federal courts granted habeas relief on grounds the prosecutor in appellant’s trial had prejudicially questioned and commented about appellant’s failure to mention an alibi and other defenses to police, and that appellant’s counsel had failed to object to these references.

^[2] “(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking . . . . . . . (e) For the purposes of this section, “harasses” means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. (f) For the purposes of this section, “course of conduct” means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.” (g) For the purposes of this section, “credible threat” means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included within the meaning of “credible threat.”

^[3] In his argument to the jury, the prosecutor expressly relied on the form of stalking involving harassment, rather than the alternative definition under subdivision (a) of repeatedly following the victim (even though the charged conduct here was following Ms Guzzeti, in a certain manner).

^[4] The state court opinion that originally affirmed appellant’s conviction did not discuss the facts of the offenses. (Burton v. State (1989) 191 Ga.App. 822 [383 S.E.2d 187].)

^[5] Appellant also claims the opinion unworthy of consideration because, he says, it reflects skepticsm about the sufficiency of the evidence. We do not so read the opinion.

^[6] We held in People v. Jenkins, supra,140 Cal.App.4th 805, that constitutional principles do not bar retrial of prior conviction allegations. Admissibility of the trial transcript also means that appellant could not claim ineffective assistance of counsel by reason of the failure to object to admission of the federal opinion.