Filed 12/16/13 P. v. Jackson CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY DELON JACKSON,

Defendant and Appellant.

 B244482

 (Los Angeles County

 Super. Ct. No. BA382407)

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

Stephen A. Marcus, Judge. Affirmed.

Donna L. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and 

Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

______________________
2

Anthony Deleon Jackson appeals from the judgment, challenging his 12-year state 

prison sentence imposed pursuant to the three strikes law. Jackson’s prior strike

enhancement was from a 2004 conviction based on a plea of no contest. Jackson 

contends the trial court erred in denying his motion for specific performance of his earlier

plea agreement and in sentencing him under the three strikes law. We affirm. 

PROCEDURAL BACKGROUND

Jackson was charged in an information with committing murder (Pen. Code, 

§ 187, subd. (a))1in June 2003, with special allegations he had personally used a firearm 

(§ 12022.53, subds. (d), (e)(1)) and had committed the offense for the benefit of a 

criminal street gang (§ 186.22, subd. (b)(1)) (L.A.S.C. case no. BA256155). 

Represented by appointed counsel William Monterroso, Jackson entered a negotiated 

plea of no contest on July 20, 2004 to acting as an accessory to a gang-related murder 

(§§ 32, 186.22, subd. (b)(1)). As agreed, Jackson received an aggregate state prison 

sentence of six years, consisting of three years for acting as an accessory and three years 

for the gang enhancement. The murder count and firearm-use allegations were dismissed 

“contingent upon the continuing validity of the plea.” The record of the plea proceedings 

was silent as to the characterization of the conviction as a strike or non-strike. In the face 

of this silence, when the court asked Jackson, “Has anyone made any threats to you or 

promised you anything other than what I have stated in open court in order to get you to 

accept this plea?” Jackson replied, “No, sir.” 

After Jackson stole an elderly man’s necklace in 2011, he was charged in a second

amended information with second degree robbery (§ 211) with a special allegation the 

victim was 65 years of age or older (§ 667.9, subd. (a)). The information also specially 

alleged Jackson had suffered one prior serious or violent felony conviction for acting as 

an accessory to a gang-related murder within the meaning of section 667, subdivision 

(a)(1) and the three strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and had 

 

1 Statutory references are to the Penal Code, unless otherwise indicated.
3

served two separate prison terms for felonies (§ 667.5, subd. (b)). Represented by 

counsel, Jackson pleaded not guilty and denied the special allegations.

A jury convicted Jackson as charged and found true the allegation the victim was 

65 years of age or older. After the verdict, Jackson admitted the 2004 conviction for 

acting as an accessory to a gang-related murder and a 2009 conviction for possession of a 

controlled substance (Health & Saf. Code, § 11350) as prior prison term enhancements, 

but he asserted the 2004 offense could not be treated as a prior strike conviction because 

of the terms of his plea agreement in that case. 

The trial court held a hearing on Jackson’s Motion for Specific Performance of 

Plea Bargain and To Dismiss Prior as Barred by Collateral Estoppel, which was filed 

prior to trial. Jackson argued that, at the time of his plea, the People had understood he 

was only willing to accept a plea agreement that would not subject him to an enhanced 

sentence in the future because of a prior strike conviction on his record. He asserted the 

parties had agreed Jackson would plead no contest to acting as an accessory to a gangrelated murder as a non-strike offense, in return for an aggregate six-year state prison 

sentence. 

At the hearing on the motion, the court received into evidence a transcript of the 

2004 plea hearing. Jackson testified at the motion hearing that he had told defense 

counsel Monterroso that he would not agree to a negotiated plea that included a prior 

strike conviction and a lengthy prison sentence. According to Jackson, he had previously 

rejected the People’s offer of “12 years with a strike for manslaughter” because “it was a 

lot of time and it was involving with [sic] a strike.” 

Monterroso testified he could not recall either his discussions with Jackson or his 

plea negotiations with the prosecutor in 2004. Specifically, Monterroso did not 

remember whether he or the prosecutor had told Jackson that he was pleading to a nonstrike offense. Monterroso testified that according to his notes, Jackson had agreed to 

plead to acting as an accessory to a gang-related murder as a non-strike offense and was

to be sentenced to a six-year term in state prison. Monterroso acknowledged there was 

no mention in the plea hearing transcript of whether Jackson was pleading to a strike 
4

offense. Monterroso testified it was consistent with his normal custom and practice to 

have the record show the plea was to a strike offense, but not necessarily if the plea were 

to a non-strike offense. Monterroso also testified in his opinion, under the prevailing 

authority in 2004, Jackson’s gang-related felony offense was not necessarily a prior strike 

conviction.

In denying the motion, the trial court found Jackson’s testimony less than credible 

and Monterroso’s testimony unpersuasive. The court reasoned because the state of the 

law in 2004 dictated that gang-related felony offenses constituted serious felonies under 

the three strikes law, Jackson’s conviction for acting as an accessory to a gang-related 

murder was a strike offense, absent a contrary finding or statement in the record of the 

plea hearing. 

At the sentencing hearing, the trial court imposed an aggregate state prison term of 

12 years, consisting of six years for second degree robbery (the three-year middle term 

doubled under the three strikes law), plus five years for the prior serious felony 

enhancement, plus one year for the prior prison term enhancement. 

DISCUSSION

1. Applicable Law

A defendant is entitled to relief for a violation of the terms of his or her plea 

agreement without a showing of prejudice. (In re Moser (1993) 6 Cal.4th 342, 354.) 

However, to find a term to be part of a plea agreement, the circumstances must show the 

“‘“plea rest[ed] in any significant degree on a promise or agreement of the prosecutor, so 

that it can be said to be part of the inducement or consideration . . . .”’” (Id. at p. 355, 

quoting Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 92 S.Ct. 

495].) While a plea agreement can contain implied terms, their existence must be 

supported by the record. (See e.g. People v. Paredes (2008) 160 Cal.App.4th 496, 512 

[Where post-conviction change in law rendered defendant deportable; no showing that 

plea agreement included implied promise of no deportation].) 
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2. Standard of Review

A negotiated plea agreement is interpreted according to the rules governing 

contracts because it is, in essence, a contract between the defendant and the prosecutor to 

which the trial court consents to be bound. (People v. Segura (2008) 44 Cal.4th 921, 

930-931 (Segura).) “[T]he ‘interpretation of a contract is subject to de novo review 

where the interpretation does not turn on the credibility of extrinsic evidence.’” (People 

ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520.) “In 

contrast, ‘[i]f the parol evidence is in conflict, requiring the resolution of credibility 

issues, we would be guided by the substantial evidence test. [Citation.]’ [Citation.] 

However, extrinsic evidence is not admissible to ascribe a meaning to an agreement to 

which it is not reasonably susceptible. [Citation.]” (ASP Properties Group, L.P. v. Fard, 

Inc. (2005) 133 Cal.App.4th 1257, 1267.)

3. Jackson Failed To Demonstrate that the Plea Bargain Was for a Non-strike

 Offense

Jackson does not dispute that his 2004 conviction for acting as an accessory to a 

gang-related murder qualified as a strike offense at the time or that the record of the plea 

hearing is silent as to whether this prior conviction was treated as a strike or non-strike

offense.2 Instead, Jackson argues the evidence he introduced at the motion hearing 

established that the nature of the conviction as a non-strike offense was a bargained-for 

term of the plea agreement. Jackson maintains he is therefore entitled to specific 

performance of this term of the plea agreement.

 

2

Jackson acted as an accessory to a gang-related murder on or about June 1, 2003. 

In March 2000, the California electorate passed Proposition 21, which amended section 

1192.7 to expand the list of serious felonies. (See People v. Briceno (2004) 34 Cal.4th 

451, 456.) To the serious felonies listed in section 1192.7, Proposition 21 added 

subdivision (c)(28), “any felony offense, which would also constitute a felony violation 

of Section 186.22.” The California Supreme Court concluded the definition of “ serious 

felony” in section 1192.7 includes otherwise non serious felonies that were committed for 

the benefit of a criminal street gang within the meaning section 186.22, subdivision 

(b)(1). (Briceno, supra, at p. 456.) 
6

Because the record of the plea is silent in this respect, the trial court permitted 

Jackson to introduce extrinsic evidence to demonstrate that his plea agreement rested on

the term he was seeking to enforce. The evidence presented consisted solely of the 

testimony of Jackson and Monterroso. It was the role of the trial court to determine the 

credibility of that testimony. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The trial 

court found Jackson was not credible; Monterroso’s testimony, even if credited in full, 

establish only that he believed the plea did not subject Jackson to a strike, not that this 

was a term of the plea bargain. A plea bargain is a form of contract, subject to general 

principles. (Segura, supra, 44 Cal.4th 921 at pp. 930-931.) Accordingly, in seeking to 

enforce the agreement, it was Jackson’s burden to establish that the plea bargain 

incorporated the term he sought to enforce. He did not do so. As a result, the sentence 

was proper. 

DISPOSITION

The judgment is affirmed. 

ZELON, J. 

We concur: 

PERLUSS, P. J. 

WOODS, J.