Unpublished Disposition, 940 F.2d 670 (9th Cir. 1991)

MEMORANDUM^*

Randall Craig Thompson appeals the district court's enhancement of his sentence for possession of a firearm by a convicted felon. The district court found Thompson to have committed seven prior violent felonies, and sentenced him to fifteen years imprisonment under the Armed Career Criminal Act. 18 U.S.C. § 924(e). We affirm.

BACKGROUND

Thompson pleaded guilty to possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g) (1). At sentencing the district court reviewed Thompson's record of prior convictions, which included the following:

"1972 assault with intent to commit robbery. 1979 oral copulation by force, attempted kidnapping. 1983 assault with a deadly weapon (crowbar), assault with a deadly weapon (vehicle) on a police officer assault with a deadly weapon (vehicle) on a police officer assault with a deadly weapon (vehicle) on a police officer sexual battery

The crime of being a felon in possession of a firearm normally carries a maximum sentence of five years. The Armed Career Criminal Act, 18 U.S.C. § 924(e), however, provides that a person convicted of that offense who

has three previous convictions ... for a violent felony ... shall be fined not more than $25,000 and imprisoned not less than 15 years, and ... the court shall not suspend the sentence of, or grant a probationary sentence to such person ... and such person shall not be eligible for parole ...

The district court based its enhancement on all of the convictions listed above except the 1983 sexual battery conviction.

DISCUSSION

Thompson concedes the applicability of his 1972 assault conviction. He argues, however, that none of the other convictions may properly be used as a basis of enhancement. We conclude that Thompson is clearly wrong with regard to his prior conviction for attempted kidnapping, as well as to his first 1983 assault conviction. Because those convictions, along with his conceded 1972 assault conviction, are sufficient to uphold the enhancement, we do not address the others.

Thompson argues that his conviction for attempted kidnapping may not be considered because his plea of guilty to that offense was not "intelligent." We find adequate evidence in the record to establish that the plea was intelligently entered. Thompson correctly points out that conviction in California for attempted kidnapping requires proof that the defendant attempted to "move [ ] [the victim] for a substantial distance, that is, a distance more than slight or trivial." California Jury Instructions, Criminal, (4th ed. rev. 1979) Sec. 9.19. Thompson's awareness of this element can be evidenced by a variety of means other than a recital of the essential elements of the offense before the plea is entered. See, e.g., Marshall v. Lonberger, 459 U.S. 422, 436-37 (1983) (defendant's intelligence and experience in criminal justice system a factor in evaluating intelligence of guilty plea); Henderson v. Morgan, 426 U.S. 637, 646 (1976) (factual basis of charge at plea hearing can establish defendant's knowledge of charges); United States v. Freed, 703 F.2d 394, 395 (9th Cir. 1983) (availability of experienced counsel a factor in finding guilty plea intelligently entered).

The totality of the circumstances disclosed by the record leads us to conclude that Thompson was aware when he pleaded guilty to attempted kidnapping that the state would have to prove that he attempted to move the victim more than a trivial distance. Thompson was a 29-year-old adult when he pleaded guilty to this offense. He had a G.E.D. high school degree and considerable experience with the criminal justice system. He was advised by an apparently competent and experienced attorney, and the following exchange took place before he entered his plea:

Mr. Cohen [prosecutor]: With regard to a violation of attempted kidnapping, 664/207 on or about the 9th of November, did you attempt by use of force to take and carry away Nalini ... Sundaresan, ...? Did you attempt to move her within--did you attempt to move her from a place where she was, sir, by use of force?

Defendant: Yes.

We think that the totality of the circumstances here establishes that, when Thompson replied "yes" to the above question, he understood that more than a trivial movement was involved.

Thompson also argues that his guilty pleas to the four assault offenses in 1983 were not intelligently entered. We disagree, at least as to the first assault with a crowbar, and, thus, we need not address the other convictions stemming from the events following that assault.

The factual basis which was laid for Thompson's plea to the first charge of assault with a deadly weapon establishes that he was aware of the element of intent necessary to convict for that offense. Section 245(a) (1) defines the offense of assault with a deadly weapon as the commission of "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." The mental element of this offense is defined in People v. Burres, 101 Cal. App. 3d 341, 347 (1980): "The intent necessary to commit an assault is the intent to commit battery."

When Thompson entered his guilty plea on this offense, the following exchange took place:

Mr. Jenkins [prosecutor]: Okay, Randall Craig Thompson, Count I of this complaint alleges that on the 22nd of May, 1983, you committed an assault by means of force likely to produce great bodily injury and with a deadly weapon in violation of Section 245(a) (1) of the Penal Code on one Jeffrey Hillenburg, and that the deadly weapon you used was a crowbar. How do you plead to Count I?

Defendant: Guilty.

All of the factors that applied, above, to Thompson's plea to attempted kidnapping apply here as well, except that at the time of the plea to the assault charge, he was four years older, and two guilty pleas more experienced. There is no reason to believe that he thought that he could be convicted of this offense for mere reckless conduct, or for merely intending to frighten his victim. See Burres, 101 Cal. App. 3d at 347. We believe it is clear from the totality of the circumstances that when Thompson pleaded guilty to this offense, he knew that to convict him the state would have to prove that he intended to commit a battery on his victim.

It is unnecessary to consider whether Thompson pleaded guilty "intelligently" to the subsequent assaults on police officers, or to determine whether those convictions are additional convictions to the conviction arising from the assault with a crowbar. The 1972 assault conviction, the 1979 attempted kidnapping conviction, and the first 1983 assault conviction were validly applied to cause enhancement of Thompson's sentence under the Armed Career Criminal Act. The district court's sentence is

AFFIRMED.