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People v. Burkett6/28/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Edward Michael Burkett was driving approximately 20 miles over the posted speed limit on Finley Avenue in Santa Rosa when he struck and killed a bicycle rider, who had entered the street after failing to stop at a stop sign. Based on a blood sample, police determined Burkett was under the influence of methamphetamine at the time of the accident. In addition, the bicyclist had a blood alcohol level of .12 percent.
The district attorney charged Burkett with vehicular manslaughter (Pen. Code, § 192), driving under the influence of a drug, with resulting bodily injury (Veh. Code, § 23153, subd. (a)), being under the influence of methamphetamine (Health & Saf. Code, § 11550), and resisting a police officer (Pen. Code, § 148, subd. (a)(1)). The information also alleged that Burkett suffered two prior felony "strike" convictions for burglary and assault with a deadly weapon. See (Pen. Code, §§ 667, 1170.12 [enacting the "Three Strikes" law].) On October 13, 1999, pursuant to a negotiated plea agreement, Burkett pleaded no contest to vehicular manslaughter and admitted the allegations concerning his prior strike convictions. The prosecution dismissed the remaining counts and dismissed, with waivers pursuant to People v. Harvey (1979) 25 Cal.3d 754, two separate methamphetamine cases against Burkett.
At the change of plea hearing, Burkett's counsel explained that the prosecution had offered Burkett two options: He could either plead guilty to the two methamphetamine cases and stipulate to a sentence of 25 years to life under the Three Strikes law, or he could plead guilty to the vehicular manslaughter offense and file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 asking the trial court to strike one or both of his prior felony convictions. Burkett chose the latter option and affirmed his understanding that the Romero motion would be heard at the time of his sentencing. In the course of taking Burkett's waiver, the prosecutor mentioned that Burkett could only earn "15 percent credit" on his sentence under the Three Strikes law, and Burkett said he understood this limitation. The trial court accepted Burkett's plea. At the sentencing hearing, however, the court denied Burkett's Romero motion and sentenced him to an indeterminate term of 25 years to life imprisonment, pursuant to the Three Strikes Law.
Burkett's appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no arguable appellate issues. Having reviewed the appellate record, we agree with counsel's assessment that no issue warrants further briefing on appeal. Burkett also filed a petition for writ of habeas corpus, which we consolidated with the appeal. Based on what he characterizes as the prosecutor's incorrect reference to the availability of credits against his sentence, Burkett claims (1) his plea was involuntary, because it was made without full knowledge of the consequences and based upon an incorrect advisement of the law, and (2) his counsel rendered ineffective assistance, because counsel failed to advise him he would be required to serve at least 25 years of his sentence. Burkett has failed to establish a prima facie case that he is entitled to withdraw his plea; therefore we deny the petition and affirm the judgment.
DISCUSSION
All the arguments in Burkett's petition res
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