P. v. Burton

Filed 4/25/07 P. v. Burton CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Halgren, Judge. Affirmed.

A jury convicted defendant Eric Burton of willful and premeditated attempted murder (Pen. Code, 664/187, subd. (a)/189),^[1]discharging a firearm from a motor vehicle ( 12034, subd. (c)), and assault with a semi-automatic firearm ( 245, subd. (b)). The jury also found true a variety of enhancing allegations appended to the charged offenses. On appeal, Burton asserts the court erred by (1) denying his Wheeler^[2]motion (2) denying his Faretta^[3] motion, (3) refusing to give a special jury instruction on self-defense, and (4) admitting certain evidence.

I

FACTS

A. Prosecution Case

Burton is the father of Angela Sanders's daughter, Dreona. In March 2004 Salinathan Thomas, the victim of Burton's assault, was in a dating relationship with Sanders. Burton had filed custody dispute papers and obtained a restraining order against Thomas.

On March 19, 2004, Thomas was with Sanders and her two daughters at a friend's apartment when Burton drove his vehicle into the driveway. Thomas came out of the apartment as Burton was starting to leave. Thomas told Burton to leave them alone, and Burton challenged Thomas to "come out 100 yards and say that." Burton then drove away. However, a few minutes later, Burton again drove by the apartment, and Thomas could see a passenger in the vehicle holding a rifle. Thomas called the police and stepped outside so that if Burton reappeared, Thomas could record Burton's license number to give to police.

Burton's vehicle reappeared and when approximately 35 feet from Thomas, Burton pulled out a gun, pointed it at Thomas, and began firing. Burton fired between 13 and 15 shots, striking Thomas several times. Thomas survived the shooting.

B. Defense Evidence

Burton's friend, Mr. McKelvey, was with him. They left a Burger King and were driving to McKelvey's grandmother's house when they heard a woman shouting. They did not know who was shouting so they drove around the block. When they reached the apartment, they saw Sanders. They then saw Thomas, who looked angry, walking toward them and demanding that Burton get out of the vehicle. Burton twice warned Thomas to back away before Burton pulled out the gun and began firing. Dreona told police that, when Burton drove past on the final occasion, Thomas jumped over a wall to confront Burton and Burton then pulled out the gun and shot Thomas.

Burton's mother testified he stated he had been harassed by Thomas and there were always problems when Burton visited his daughter. Burton's mother advised him to get a restraining order against Thomas.

ANALYSIS

A. The Wheeler Claim

Burton argues his conviction must be reversed because the prosecutor committed Wheeler error by using a peremptory challenge to excuse an African-American juror based solely on the juror's race. The trial court concluded Burton had not made a prima facie showing of improper use of the peremptory challenge and denied the motion.

Legal Framework

The use of peremptory challenges to excuse prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89.) If a party believes his or her opponent is using peremptory challenges to excuse jurors in violation of Wheeler and Batson, the point must be raised in a timely fashion and a prima facie case of discrimination made to the satisfaction of the court. After making as complete a record of the circumstances as possible and showing the excused juror is a member of a cognizable group, the movant must show " 'the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " (Johnson v. California(2005) 545 U.S. 162, 168.)

"When a trial court denies a Wheeler motion because it finds no prima facie case of group bias was established, the reviewing court considers the entire record of voir dire." (People v. Davenport (1995) 11 Cal.4th 1171, 1200, disapproved on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) A trial court's determination that no prima facie showing of group bias was made is subject to review based on whether substantial evidence supports the ruling. (People v. Jenkins (2000) 22 Cal.4th 900, 993.) If the trial court overrules the objection based on no prima facie showing, we affirm the ruling "[i]f the record 'suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question . . . ." (People v. Howard (1992) 1 Cal.4th 1132, 1155, quoting People v. Bittaker (1989) 48 Cal.3d 1046, 1092.) A legitimate reason for peremptorily challenging a juror need not be a reason that makes sense, but instead need only be a reason that does not offend equal protection. (People v. Reynoso (2003) 31 Cal.4th 903, 924.)

Analysis

There is substantial evidence supporting the trial court's denial of the Wheeler motion based on a finding that no prima facie case of discrimination had been made; Burton did not establish, based on all of the circumstances, that there was a reasonable inference the juror (Ms. R.) was excused because of her race. (People v. Howard, supra, 1 Cal.4th at p. 1154.) Ms. R., like Burton, was African-American. However, racial identity between the excused juror and the defendant alone does not suffice to raise a prima facie showing (People v. Davenport, supra, 11 Cal.4th at p. 1201) and, because Ms. R. was apparently the only African-American among the jury pool, Burton cannot show her dismissal was part of a pattern of excusing African-American jurors.

Burton appears to argue that, because there were additional facts suggesting Ms. R. would have been pro-prosecution and her responses to other questions were consistent with a normal person's responses, he satisfied his burden of showing facts from which an inference can be drawn that Ms. R. was excused because of her race. Burton notes Ms. R. had several extended family members connected to law enforcement, and she stated her prior experience and reaction to being assaulted would not affect her ability to be fair or to assess the self-defense issue present in the case. However, there were numerous responses during voir dire that provide substantial evidence to support the trial court's conclusion there were "a variety of non-discriminatory reasons why prosecution may feel she would not be a good juror for their case," and therefore Burton had not made a prima facie showing of a reasonable inference Ms. R. was excused because of her race.

During voir dire, defense counsel asked Ms. R.'s opinion about a person's right to employ deadly force in self-defense, and specifically asked if "somebody who continues to act violently and make threats and whatever, do you think that someone who's confronted with a person like that is entitled to act [in self-defense] based on what they'd seen in the past?" She responded that "[i]f you feel like you're being threatened, then you have a right to protect yourself." The prosecutor, following that questioning, asked Ms. R. whether, "if a person seemed to act unreasonably in a situation, would you still give them the benefit of the doubt that they acted reasonably in that situation?" and Ms. R. responded, "Yes. It depends on the situation," and then elaborated by giving examples of what conduct she might consider, and then volunteered that among the circumstances she was "curious about [was] who had the restraining order? He did or the other guy?" She then stated she needed to know everything "especially if we have to sit here and we're going to have to pass judgment . . . we need to see it all, because I sure would hate to have convicted somebody that--and I didn't do it correctly or I sent him to jail or something and he shouldn't have been." Ms. R. also told defense counsel that "[n]ow that I found my way to God, it's--taking a life is hard," and the prosecutor, inquiring of the entire panel, stated "Ms. [R.] brought up a very good point. . .  [A] lot of people have different religious beliefs . . . . Does anybody have a problem or conflict with their beliefs that would not allow them to sit in judgment essentially of another person?"

The trial court, concluding Burton had not made a prima facie showing that Ms. R. was excused based solely on race, stated the court could identify "a variety of non-discriminatory reasons why prosecution may feel she would not be a good juror for their case," including "concerns . . . about how she might approach the issue of self defense" and "[h]er expressed views about her religion." The record suggested she might give Burton the benefit of the doubt even were he acting unreasonably, and her unprompted inquiry about who obtained the restraining order suggested she might unduly favor Burton's self-defense claim once she learned it was Burton who had obtained the restraining order against Thomas. Moreover, her religious views, coupled with her statements expressing concern about "hav[ing] to pass judgment" and that she would "hate to have convicted somebody that . . . I didn't do it correctly," could legitimately raise alarms that Ms. R. would be more reluctant to convict Burton than would other jurors. Under these circumstances, there is substantial evidence to support the trial court's finding Burton did not make a prima facie showing Ms. R. was excused because of her race, and instead there were legitimate race-neutral grounds upon which the prosecutor might have excused her. (People v. Howard, supra, 1 Cal.4th at p. 1155.)

B. The Faretta Claim

Burton argues his conviction must be reversed because under Faretta, supra, 422 U.S. 806, the trial court erroneously denied his motion to represent himself. We conclude the totality of the circumstances demonstrated Burton abandoned his timely Faretta motion and did not unequivocally resurrect that motion, and therefore the trial court's ruling was not error.

Background

On March 24, 2005, on the day of trial, Burton requested a Marsden^[4]hearing and also moved under Faretta to represent himself. However, when defense counsel requested the court investigate Burton's competence under section 1368, the court stated that although it believed Burton was "capable of understanding the nature of these proceedings," there was sufficient evidence to raise a substantial doubt as to Burton's competence either to assist his counsel or to conduct his own defense in a rational manner. Accordingly, the court suspended proceedings under section 1368 to allow an evaluation of Burton's competence, and told Burton that "[i]f it's determined that you're competent, then you are certainly free to raise a Marsden or a Faretta motion or whatever else you think is appropriate, and then the court at that time will evaluate it," but that it was premature to entertain the motions until the court was satisfied as to Burton's competence.

At a May 23, 2005 hearing, the court found Burton competent to stand trial and resumed the proceedings. On June 1, 2005, at a hearing to set the trial date, Burton again moved for new counsel under Marsden and the court held an in camera hearing to address the motion. At the outset of that hearing, Burton stated he had "some motions and some papers" but the court instructed Burton they would deal only with the Marsden motion because the prosecutor was absent. While articulating his complaints against Mr. Adair (his appointed attorney), Burton stated that when he informed Adair of his intention to represent himself in March 2005, which motion Burton complained "the court [erred] in denying," Adair "retaliated against that [and] placed me under a [section] 1368 hold." Burton complained that even though the judge "stated that he found me competent, [and] [f]rom my understanding, if the defendant is competent and he has made a timely motion to [represent himself], he has that right to do so," the "court and Mr. Adair were overreaching and placed me under a [section] 1368 hold." Burton then argued the testing and hearing resulted in a finding of competence, and stated, "Prior to my Marsden, I had also made a [Faretta] motion. I felt that the court [erred] and violated my Sixth Amendment rights, the judge also violated my 14th [Amendment] rights to due process, and when your due process is violated . . . I'd like to motion the court to release me from custody. I have been unlawfully detained." The court then cautioned Burton that "you are drifting off into your other motions now. We are still here on the Marsden motion, we're not here on unlawful detention or [propria persona] rights. The only issue here is whether or not Mr. Adair should be discharged as your attorney." Burton then continued his list of complaints against Mr. Adair, and concluded by asserting, "I would really like to substitute counsel. Because, at this point, with my disease and illnesses, I feel that I should have counsel. And I would like to substitute counsel, your honor." The court ultimately denied the Marsden motion.

The next time Burton mentioned Faretta was on the fourth day of trial, when he made another Marsden motion. Burton argued counsel had been incompetent in numerous regards, had a conflict of interest, and there were conflicts between Burton and counsel over trial decisions, in part because counsel was aware Burton had tried to assert in propria persona rights but did not pursue them. The court, rejecting the latter claim, noted there "initially had been an indication that you [wanted] to file [in propria persona], but then you asked to raise a Marsden motion first[, and] I heard that motion [and] ruled on it . . . [a]nd there was no renewal of the [propria persona] motion" after the competency issue had been resolved. Burton later resurrected his claim that his Faretta motion had been timely and was erroneously denied, but the court rejected that claim, stating, "The [propria persona] motion--if you had intended or thought you wanted that renewed [after the section 1368 issue was resolved], you could have done that on the first day of trial. You did not. Well, now it's the second week of trial. I find this untimely and raised for the purpose of delay."

The final occasion Burton raised Faretta to the trial court was in connection with his motion for new trial. At that time, Burton asserted he was entitled to a new trial because a previously filed motion asserting Faretta had not been ruled on, and because of new evidence. The court, after examining its file, located a 15-page handwritten document mailed July 7, 2005, which was styled as a "motion to dismiss"; the motion mentioned the word "Faretta" in the caption and (at page 13) the right of self-representation was cursorily mentioned. However, the court noted that, even assuming the issue was a proper ground for a new trial, it would deny the motion because Burton did not raise the issue at the first court date following July 7, 2005, or at any appropriate time, even though Burton had demonstrated he was both willing and able to assert issues concerning his representation when he wanted the court to rule on them, and therefore the court concluded Burton did not assert the request in a timely or sufficient manner.

Legal Framework

A defendant has a federal constitutional right to self-representation in a criminal proceeding (Faretta, supra, 422 U.S. at p. 819), and Faretta applies to California criminal proceedings (People v. Windham (1977) 19 Cal.3d 121, 128 [a trial court must grant a defendant's Faretta motion "upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be"]). Generally, "[a] trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 729, italics added.)

The requirement that a Faretta motion be unequivocal "is necessary . . . to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation." (People v. Marshall (1997) 15 Cal.4th 1, 22].) The demand for self-representation must be both articulate and unmistakable (id. at p. 21), and where "it is clear from the record that defendant never made an unequivocal assertion of his right to self-representation . . . [a] trial court [does] not err in declining to consider such a request." (People v. Valdez (2004) 32 Cal.4th 73, 99.)

Analysis

The only pretrial hearing at which Burton asserted a desire to represent himself was at the March 24, 2005 hearing, when he both attempted to replace his counsel under Marsden and expressed a wish to represent himself. However, the court concluded consideration of his requests was premature considering the potential mental competence questions, but advised Burton that "[i]f it's determined that you're competent, then you are certainly free to raise a Marsden or a Faretta motion or whatever else you think is appropriate, and then the court at that time will evaluate it." Although Burton subsequently resurrected his Marsden request, he did not thereafter unequivocally reassert his request to represent himself in propria persona. To the contrary, in his May 2, 2005 letter to the court, when he provided additional reasons supporting his Marsden request, Burton stated "I would like to be relieve[d] of Mr. Adair as my counsel and substituted with another. I believe it isn't in my best interest to [represent myself]." "I feel with a new attorney [who is] interested in proving my [innocence] would be the right and proper cure. . . . I am requesting please, a Marsden ASAP." (Italics added.) Moreover, at the next court hearing, Burton forcefully pursued his Marsden motion, but mentioned Faretta only in connection with his complaint against his attorney and as grounds for a motion to dismiss. As to the latter motion, the court cautioned Burton not to drift off into other motions because the court was focused "on the Marsden motion, . . . not . . . on unlawful detention or [propria persona] rights." Burton asserted, echoing his May 2 letter, "I would really like to substitute counsel. Because, at this point, with my disease and illnesses, I feel that I should have counsel. And I would like to substitute counsel, your honor." When Burton's June 1, 2005, Marsden motion was denied, Burton did not articulately and unmistakably reassert a demand to represent himself in propria persona in a timely fashion.

We conclude the trial court correctly found the only timely motion that articulately and unmistakably asserted a demand to represent himself in propria persona was Burton's initial March 24, 2005 motion, and substantial evidence (in the form of Burton's express words and subsequent inaction) supports the conclusion Burton subsequently abandoned that motion. Accordingly, the court did not err in declining sua sponte to rule on Burton's abandoned Faretta motion.

C. The Instructional Claim

Burton sought and received a series of instructions on self-defense principles that would either excuse or mitigate the offense. Burton also sought an instruction, containing language similar to CALJIC 5.50.1, explaining a victim's prior threats to or assaults on the defendant would justify the defendant, when reacting to an assault by the victim, to act more quickly and take harsher measures in self-protection than would have been justified by one who had not received antecedent threats by or assaults from the victim. The trial court denied the request because there was no substantial evidence Thomas had previously threatened or assaulted Burton. Burton asserts this was error because there was evidence to support the instruction.

Legal Framework

A court must instruct the jury on principles that are closely and openly connected with the evidence (People v. Flannel (1979) 25 Cal.3d 668, 680-681, disapproved on other grounds by In re Christian S. (1994) 7 Cal.4th 768, 777) but need only "give those requested instructions supported by evidence that is substantial. [Citation.]" (People v. Bacigalupo (1991) 1 Cal.4th 103, 125, vacated and remanded on other grounds sub nom. Bacigalupo v. California (1992) 506 U.S. 802.) To warrant an instruction, there must be substantial evidence of the central component underlying the instruction. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135.) Although doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused (Flannel, at p. 685), " '[s]peculation is an insufficient basis upon which to require the trial court to give an instruction . . . .' " (People v. Sakarias (2000) 22 Cal.4th 596, 620.)

An act of self-defense is justified when the defendant holds "an honest and reasonable belief that bodily injury is about to be inflicted on him." (People v. Goins (1991) 228 Cal.App.3d 511, 516.) The threat of bodily injury must be imminent (In re Christian S., supra, 7 Cal.4th at p. 783) and the right of self-defense "is limited to the use of such force as is reasonable under the circumstances." (People v. Pinholster (1992) 1 Cal.4th 865, 966.)

Although the reasonableness element employs an objective test, reasonableness is determined from the point of view of a reasonable person in the defendant's position, and therefore the jury must consider all the facts and circumstances it might " '[expect] to operate on [defendant's] mind . . . .' [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) Accordingly, the courts have held that evidence the victim had threatened or assaulted the defendant on prior occasions would be admissible to support a claim of self-defense (People v. Moore (1954) 43 Cal.2d 517, 527-529) because it is reasonable for a person previously threatened or assaulted by another " 'to be on heightened alert upon encountering that threatener, and to reasonably take [prior threats] into account in deciding the necessity for, and the amount of, defensive action, in response to any act on the part of the threatener reasonably appearing to be calculated to carry out that threat.' " (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) When that evidence is presented, the jury should be instructed that one who has received prior threats or assaults against him or her by the victim is justified in acting more quickly and taking harsher measures in the event of a threatened assault by the victim than would a person who had not received such threats, and that the jury may consider such facts and circumstances in determining whether the defendant acted in a manner that a reasonable person would act in self-protection against the victim's threatened assault. (People v. Bush (1978) 84 Cal.App.3d 294, 302-305.)

Analysis

Burton asserts there was evidence Thomas threatened or assaulted him on prior occasions and therefore it was error to refuse the instruction. We have reviewed each passage of testimony cited by Burton, and none of those passages contain evidence that Thomas assaulted Burton or threatened him with bodily harm at any time prior to the conduct that triggered Burton's act of alleged self-defense.^[5] The only evidence cited by Burton as to past encounters between Thomas and Burton was Sanders's testimony (e.g., Burton and Thomas had "exchanged words" and cursed at each other on two or three prior occasions but Thomas had never assaulted or threatened Burton) and Burton's mother's testimony (e.g., Burton was afraid of Thomas and Thomas had "harassed" and "bothered" Burton). Thomas denied assaulting or threatening Burton. The trial court correctly refused the proffered instruction because there was no evidence Thomas threatened or assaulted Burton prior to the incident resulting in the shooting.

D. The Evidence Claim

Burton asserts the trial court prejudicially erred by allowing the prosecutor to introduce into evidence an item of clothing worn by Burton at the time of the shooting. He argued below that the item--a belt buckle containing a depiction of a semi-automatic handgun and three bullets on the front--should be excluded under section 352. The trial court admitted the evidence, and Burton asserts this ruling was an abuse of discretion and requires reversal under People v. Watson (1956) 46 Cal.2d 818, 836.

We are convinced the evidence was admissible under Evidence Code section 1103, subdivision (b) and the decision to admit it under section 352 was not an abuse of discretion. Burton's defense portrayed Thomas as "a vicious person" who Burton justifiably feared, and therefore Burton's acts in self-defense when Thomas became aggressive were reasonable. To support that claim, Burton introduced evidence of Thomas's violent character to buttress his argument that Thomas, acting in conformity with his character, was the aggressor when he approached Burton immediately prior to the shooting. Evidence Code section 1103, subdivision (b), provides that, "[i]n a criminal action, evidence of the defendant's character for violence or trait of character for violence . . . is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant" under section 1103, subdivision (a)(1).

The prosecution, noting Burton had painted Thomas as the aggressor, proffered Burton's belt buckle to rebut any implication Burton was "a saint himself" as well as to show his state of mind that morning and his propensity to violence. The trial court concluded, while it did not have "strong probative value," the defense's portrayal of Thomas as the aggressor made the belt buckle relevant to "put everything in context [on what Burton was] wearing that day," and therefore overruled Burton's section 352 objection. We agree with the trial court that the belt buckle had some probative value on the Evidence Code section 1103, subdivision (b) issue, and we cannot conclude the decision to admit it was an arbitrary and capricious exercise of its discretion under Evidence Code section 352.

Moreover, we are convinced that, even if admission of the belt buckle was error, it is not reasonably probable (People v. Watson, supra, 46 Cal.2d at p. 836) the result would have differed had the belt buckle been excluded. The evidence showed Burton armed himself, sought out Thomas, made numerous passes in his vehicle to incite Thomas, and finally opened fire with multiple shots although an unarmed Thomas was trying to call police. The closing argument made no mention of Burton's apparel, and we are convinced it is not reasonably probable the verdict would have been more favorable to Burton had the belt buckle not been admitted into evidence.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2]People v. Wheeler (1978) 22 Cal.3d 258.

^[3]Faretta v. California (1975) 422 U.S. 806 (Faretta).

^[4]People v. Marsden (1970) 2 Cal.3d 118.

^[5] Burton appears to suggest the proffered instruction is warranted by any violence or threat by the victim, even violence or threats that immediately precede the act of self-defense, and cites numerous witnesses who described Thomas's aggressive conduct in the moments before Burton began shooting. However, no case has approved extending the "antecedent threat or assault" principles to encompass a victim's conduct occurring moments before the act of purported self-defense, and we are convinced the "antecedent threat or assault" principles do not apply to that conduct.