P. v. Burden
Filed 5/10/07 P. v. Burden CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. JAMES LOUIS BURDEN, Defendant and Appellant. | 2d Crim. No. B189874 (Super. Ct. No. NA067812) (Los Angeles County) |
James Louis Burden was convicted after a jury trial of petty theft with priors (Pen. Code, 484, subd. (a), 666)[1]and second degree burglary ( 459). The jury also found he suffered three prior serious or violent felony convictions within the meaning of the three strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Burden represented himself at trial. The trial court denied his motion to strike his prior convictions, and sentenced him to 26 years to life. We affirm.
FACTS
On October 21, 2005, James Romero, an employee of the Home Depot in Gardena, saw Burden enter the store. Burden had a bicycle and was wearing a backpack. The backpack appeared to be flat. Backpacks are not allowed in the store because of the possibility of theft. Romero was with a customer, however, and did not stop Burden.
Romero lost sight of Burden for eight or nine minutes. When Romero saw Burden again, Burden was getting on his bicycle inside the store and riding out the door. As Burden passed by the store's anti-shoplifting device, an alarm went off. Merchandise that is not paid for at the cash register will set off the alarm. Romero noticed that Burden's backpack looked like it had merchandise in it.
Romero followed Burden out of the store and saw Police Officer Sherwin Antiporda standing nearby. Romero told Antiporda what happened, and Antiporda gave chase in his police car. When Antiporda told Burden to stop, Burden refused. Eventually, Burden was taken into custody when he fell off his bike. Antiporda could see Burden's partially unzipped backpack on the ground. It contained two Delta faucets in boxes.
When Antiporda returned the two faucets to Home Depot, Romero scanned them. The scan showed they came from the store. Store inventory showed five Delta faucets should be available. There were only three on the shelves. Tapes from the store's surveillance cameras showed Burden carrying two Delta faucets inside the store before Burden left the view of the cameras. Burden's backpack appeared to be empty.
Burden presented no evidence at trial.
DISCUSSION
I
Burden contends the trial court abused its discretion when it denied his motion to appoint advisory counsel.
Burden was initially represented by counsel, but he prevailed in his pretrial motion to represent himself. At the start of trial, outside the presence of the jury, the court reminded Burden that he has a right to counsel. The court asked if Burden wanted to give up that right and try the case himself. Burden replied, "I was anticipating maybe co-counsel." The court said, "We don't do co-counsel." Burden responded, "Then I will be doing it myself." The court stated it had ordered counsel to be present, but accepting counsel meant that Burden would have to give up control of the trial. Burden reiterated that he would try the case himself.
A defendant in a criminal case has no right both to be represented by counsel and to present his own case. (People v. Clark (1992) 3 Cal.4th 41, 97.) Such an arrangement is generally undesirable. (Ibid.) Nevertheless, the court may appoint advisory counsel upon a substantial showing that it will promote justice and efficiency in a particular case. (Ibid.)
Burden claims he was entitled to advisory counsel because his pretrial motions showed he was incompetent to represent himself. But Burden's pretrial discovery motion was partially granted. The trial court denied his motions for sanctions due to the prosecution's loss of evidence and to strike prior convictions. But those motions have enough merit to be raised by counsel in the instant appeal. Moreover, this is not a death penalty case; there were no expert witnesses; and the facts and law applicable to the case were quite simple. Burden's written waiver of counsel shows that he represented himself in a previous case with some success. In that case, he was offered eight years and received two years and eight months. Finally, Burden made no effort to show that the appointment of advisory counsel would promote justice and efficiency. Burden has failed to show an abuse of discretion.
Burden argues the trial court refused to exercise its discretion. Burden relies on the trial court's statement, "We don't do co-counsel." But the statement is ambiguous. It was not a ruling made in response to a formal motion to appoint co-counsel. It was a remark made in response to Burden's statement, "I was anticipating maybe co-counsel." The court did not state that it would not under any circumstances appoint co-counsel. The court may have been stating only that its general policy is not to appoint co-counsel. Indeed, our Supreme Court has stated that the appointment of advisory counsel is generally undesirable. (People v. Clark, supra, 3 Cal.4th at p. 97.) Burden did not seek clarification. He appeared perfectly satisfied to proceed on his own. Under the circumstances, Burden has failed to carry his burden of showing error on appeal. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 408, pp. 459-460.)
Moreover, if the trial court made any error at all in refusing to appoint advisory counsel, the error was harmless by any standard. Burden was seen entering the store with a flat backpack. Security cameras showed Burden holding two boxed faucets inside the store. He rode his bicycle out of the store with a full backpack. He triggered the store's security sensors as he left. He refused to stop as ordered by a police officer. The officer found two boxed faucets in his backpack. The faucets matched those missing from the store's inventory. Not even the most skilled attorney could have obtained a favorable judgment for Burden.
II
Burden contends the trial court erred in denying his motion to dismiss due to loss or destruction of the faucets.
The prosecution admitted that after the boxed faucets were photographed, they were returned to Home Depot. Burden claimed in his motion that the photographs do not show the boxes had notations of job sites and phone numbers in his handwriting. Burden believes that the notations in his handwriting prove the faucets belonged to him.
But the trial court was not required to believe Burden's assertion that the boxes contained notations in his handwriting. Moreover, for sanctions to apply, evidence lost or destroyed by the prosecution must have some apparent exculpatory value. (Arizona v. Youngblood (1988) 488 U.S. 51, 56.) The evidence clearly showed the faucets were stolen. If the faucet boxes had notations in Burden's handwriting, the notations could have been added in the store while Burden was outside the view of the store's security cameras. Handwriting linking Burden to the stolen faucets has no exculpatory value. The trial court did not err in refusing to impose sanctions.
III
Burden contends the trial court abused its discretion in denying his motion to strike his prior felony convictions for purposes of the three strikes law. He claims he should have been sentenced as a "non-strike" offender.
The trial court has the discretion to strike prior serious or violent felony convictions in the interest of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In exercising its discretion, the ultimate question is whether the defendant may be deemed outside the spirit of the three strikes law. (People v. Garcia (1999) 20 Cal.4th 490, 499.)
Burden argues that his three prior serious or violent felony convictions, all for robbery, were remote in time. Two were in 1977 and one was in 1982. The two in 1977 arose from the same incident. Burden also pointed out that his current convictions are not serious or violent.
But Burden has a total of 54 arrests and 11 prior felony convictions. He was on parole at the time of his current convictions. The trial court stated it saw no reason to strike Burden's prior convictions. The record shows Burden is a career criminal, whose sentence is not outside the spirit of the three strikes law. The trial court did not abuse its discretion.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
COFFEE, J.
PERREN, J.
Tomson T. Ong, Judge
Superior Court County of Los Angeles
______________________________
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
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