People v. Burnett

• Decision Date: 02 April 1999
• Docket Number: A085569,Nos. A077450,s. A077450
• Citation: 71 Cal.App.4th 151,83 Cal.Rptr.2d 629
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 2485, 1999 Daily Journal D.A.R. 3205 The PEOPLE, Plaintiff and Respondent, v. Kim Harold BURNETT, Defendant and Appellant. In re Kim Harold Burnett, on Habeas Corpus.

Page 629

83 Cal.Rptr.2d 629

71 Cal.App.4th 151, 99 Cal. Daily Op. Serv. 2485,

1999 Daily Journal D.A.R. 3205

The PEOPLE, Plaintiff and Respondent, v. Kim Harold BURNETT, Defendant and Appellant.

In re Kim Harold Burnett, on Habeas Corpus.

Nos. A077450, A085569.

Court of Appeal, First District, Division 2, California.

April 2, 1999.

Linda M. Murphy, Office of the Attorney General, San Francisco, Attorney for Plaintiff-Respondent.

Carol Strickman, Oakland, First District Appellate Project, San Francisco, Attorneys for Defendant-Appellant-Petitioner.

KLINE, P.J.

Kim Harold Burnett appeals from a conviction of being a felon in possession of a firearm. He raises a number of challenges based on the underlying claim that he was tried for an offense different from the one charged in the information and addressed by the evidence at the preliminary hearing. We will conclude his conviction must be reversed due to ineffective assistance of counsel. We will additionally grant the related petition for writ of habeas corpus filed after oral argument on the appeal.

STATEMENT OF THE CASE

Appellant was charged by information filed on May 31, 1996, with one count of being a felon in possession of a firearm (Pen.Code, § 12021, subd. (a)(1)) ¹ and one count of brandishing a firearm (§ 417, subd. (a)(2)). Both offenses were alleged to have occurred on or about January 8, 1996, at Bay Point in Contra Costa County. The first count specifically alleged that appellant possessed a ".38 caliber revolver." The information further alleged that appellant had suffered two prior convictions within the meaning of section 1170.12 and had served seven prior prison terms within the meaning of section 667.5, subdivision (b).

Appellant pleaded not guilty and denied the priors. On August 14, 1996, the first day of trial, the court bifurcated trial on the priors. Appellant waived his right to a jury trial on the prior alleged in count one and, over objection, the court granted the prosecution's motion to amend count one by striking the words ".38 caliber" from the information. The court denied a defense request for an Evidence Code section 402 hearing on the relevance of testimony by prosecution witness Mark Daniels.

On August 21, 1996, the jury found appellant guilty of being a felon in possession of a firearm and not guilty of brandishing. Appellant waived his right to a jury trial on the prior conviction and prison term allegations and, after a hearing, the court found the allegations true.

On February 19, appellant, in propria persona, ² filed motions to set aside the jury's verdict, to dismiss the count of which appellant was convicted, to reduce the offense to a misdemeanor, and to strike prior convictions. These motions were denied on February 21.

At sentencing on February 21, 1997, the prosecutor noted that one of the seven charged prior prison terms had been served concurrently with another. Appellant was sentenced to a prison term of 31 years to life, consisting of 25 years to life on count 1 plus six consecutive one year terms for six of the section 667.5 priors. Appellant filed a timely notice of appeal on February 27, 1997.

After oral argument in this court, the parties were requested to supplement their briefing of the issue of ineffective assistance of counsel, one of the issues raised on the appeal. In addition to complying with this request, on January 22, 1998, appellant filed a petition for writ of habeas corpus claiming ineffective assistance of counsel and offering the supporting declaration of trial counsel. We ordered the petition to be considered with the appeal and subsequently issued an order to show cause, returnable before this court.

STATEMENT OF FACTS

Mark Daniels, testified that on Thursday, January 4, 1996, appellant asked to stay at his house on Inlet Drive in Bay Point, Contra Costa County, for a couple of days because he and his wife were not getting along. Daniels had known appellant for about 15 years, having previously been married to a cousin of appellant's. Appellant showed Daniels a gun which Daniels took away, explaining that he had children in the house and did not want any accidents. Daniels locked the gun in a closet and locked the bullets he took out of it in a file cabinet. He described the gun as a blue steel Ruger Security Six or Speed Six, a .357 magnum revolver, with an unusual hammer that lacked a thumb catch.

On Sunday, January 7, Daniels told appellant he had to leave the next day. That same day, Daniels returned the gun and bullets to appellant and drove him to his Concord apartment. A couple of hours later, appellant called, told Daniels he and his wife were quarreling, and asked for a ride back to Daniels' neighborhood, where he would stay with someone else. When Daniels picked appellant up, appellant appeared to have had a few beers; his speech was slurred. Appellant volunteered that he had left his gun at home. Daniels dropped appellant off at the front of Daniels' house and went inside to make dinner. At about 7 or 7:30 p.m., as Daniels was about to sit down to eat, two of his neighbors, Bill Wallace and Walter Weighill, came by looking for appellant. They were very angry; Daniels did not see a weapon on either of them. Appellant was not on Daniels' property and Daniels did not see him again that night. About 10 p.m., as Daniels was getting ready to go to bed, he heard three gunshots. He called the police, who offered to send a patrol car by the house. Daniels, whose house did not have a doorbell, did not hear anyone knocking on his door. The next day, Daniels asked Wallace what had happened and was told about an altercation between Wallace, Weighill and appellant. Daniels told Wallace appellant had had a gun when he came to Daniels' A few days later, sheriff's officer David Pascoe left his card at Daniels' house while Daniels was at work. Daniels tried to call the number on the card but was unable to get through to Pascoe. Subsequently, Michael Capuano from the District Attorney's office came to the house and Daniels gave him a taped statement.

house which Daniels had given back when appellant left. ³

Lisa and Walter Weighill lived with their 10-year-old daughter, Alicia, at the corner of Marina Road and Inlet Drive in Bay Point, across Inlet from William Wallace and his 10-year-old daughter, Crystal. Mrs. Weighill testified that on January 8, 1996, Alicia and Crystal came into her house and told her a man who had been around the neighborhood had urinated in front of them and made lewd comments. Mrs. Weighill knew the man they referred to as Kim Burnett and identified him as appellant. The girls were initially whispering to each other, unsure whether to tell what had happened, and Crystal appeared frightened. Shocked, Mrs. Weighill told her husband, who was startled, upset but not angry, and went out to investigate. William Wallace testified that on the evening of January 8, 1996, Crystal ran into his house, scared and excited, and said there was a man peeing in front of a house down the street who had called her and her friend "little bitches." When Wallace went out to investigate, he saw Walter Weighill, furious and "hollering to beat the band."

Mrs. Weighill testified that she followed her husband outside and stood at the edge of her lawn as he talked with Crystal's father at the end of the Wallaces' driveway across the street. The two men walked down the street to Daniels' house, where appellant had been seen that afternoon. Wallace testified that he and Weighill went down the street and knocked on Daniels' door but Daniels said he did not know anything about the incident and they did not see anyone in Daniels' backyard. They figured the man had run off and went back toward their houses, where they stayed outside talking. They did not call the police.

Mrs. Weighill testified that after the men returned, Weighill went to his cousin's house a few streets away and Wallace returned to his own house; Weighill returned about half an hour later. Weighill testified that after looking for appellant he returned to his house, got a gun he had had for about a week, and put it in the back of his pants. ⁴ Wallace testified that he went inside for a minute, then came back out to talk to Weighill, who continued to be upset. As Wallace and the Weighills stood in the Weighills front yard, appellant approached on a bicycle and Mrs. Weighill said, "I believe that's him." Appellant had a can of beer in a bar on the handlebars and a gun sticking out of his back pocket.

Wallace testified that he walked to his side of the street, although appellant told him to stay by Weighill. Weighill put his hand at the middle of his lower back, indicating he had a weapon. Appellant threw a paper bag he was holding onto the ground and liquid splashed out. He approached to about three feet away from Weighill, who asked where he was going. The man said he was going to the "bikers' place," and answered affirmatively when Weighill asked, "Are you Kim Burnett?" Mrs. Weighill testified that when appellant approached he asked in a "cocky" tone of voice asked if they had a problem and Weighill said, "Yeah, we do." Mrs. Weighill did not recall her husband asking appellant if he was Kim Burnett.

According to Mrs. Weighill, Wallace started to move back across the street to his house and had almost made it when appellant took out the gun, pointed it at Wallace and told him not to move. He then pointed the gun at the Weighills and said he did not want them going anywhere either. She testified that her husband was remaining calm but By Wallace's account, appellant and Weighill got into a heated argument. Appellant pulled out a gun, stuck it in Weighill's face and said, "I can settle this." Wallace backed in between his two cars. Appellant put his gun away and when Wallace came back a bit onto the sidewalk said, "I creep around a little fast with this thing," turning and pointing the gun "to" (but not "at") Wa...