IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 29, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
EDMUND KIETH BURCH, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F06663)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Burch
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On the evening of August 19, 2009, the McGuire family drove to the Doubletree Hotel to check in for the night. Fourteen-year-old Spencer was seated in the rear, driver's side seat; his aunt Bettie was next to him. Spencer's parents left the car under the hotel overhang and went inside. Spencer was watching a movie, Bettie was not.
As Spencer and Bettie waited in the car, defendant opened the door next to Spencer. He stuck a handgun in Spencer's rib cage and, in a normal but aggressive tone of voice, demanded cash or he would shoot them. Defendant repeated the threat several times. Spencer told defendant he had no cash, only a credit card. Bettie added, "He's 14. He doesn't have any money." Spencer showed defendant his wallet, in which there was no cash.
Defendant then pointed the gun at Bettie and demanded she give him her rings and her money. Bettie offered defendant $20 and began looking in her wallet. Defendant grabbed the wallet, but Bettie grabbed it back. Defendant then grabbed Bettie's checkbook, but she grabbed that back as well. Defendant said, "Don't test me bitch." Bettie then gave defendant a $20 bill.
Defendant took the money and said, "Don't look at me. This wasn't meant to be. This didn't happen. Just don't worry about it." Then he closed the car door and left. Spencer locked the doors. Minutes later, hotel security approached the car; Spencer told them what happened and they went looking for defendant.
Spencer and Bettie each gave law enforcement officials a physical description of the man who robbed them. Based on their descriptions, they assembled a "six-pack" photographic lineup. Although a recent photograph of defendant was included in the six-pack, neither Spencer nor Bettie was able to identify defendant as the man who robbed them.
That same evening, a Doubletree security guard, Eric Potts, was patrolling the hotel grounds. While in the front area of the hotel, Potts saw a gold-colored Acura enter the parking area, circle in "random" fashion, then park. The driver parked the car in a red zone, near the entrance, facing opposite the "normal" direction.
Potts then saw defendant get out of the car and walk toward the hotel entrance. Then, Potts saw defendant approach the McGuires' vehicle, open the left rear door, and bend in as though he were talking to someone. Potts watched defendant for about 30-40 seconds as defendant walked back to the Acura. Meanwhile, Potts was "creeping up" in his security van.
Potts used his intercom radio to report a suspected robbery. It was Potts and his superior who approached the vehicle and were told by Spencer and Bettie that they had just been robbed. Potts's supervisor called 911 and Potts got back into his van to follow defendant. Potts found defendant driving toward Potts, headed for the exit. Potts had to turn the van to avoid a head-on collision. Potts then made a U-turn and followed defendant off the hotel property.
As he followed defendant, Potts saw there was a female in the Acura, who was "covering up" with a jacket or blanket. Potts read the car's license plate number as "4GTT572." Potts also saw the Acura speed away from the hotel and run through a red light.
Potts stopped his pursuit. A picture of the Acura revealed the license plate to be 4GTT722, and was registered to defendant. Law enforcement showed Potts the same six-pack they showed to Bettie and Spencer; Potts identified defendant as the man he had been watching.
Two days later, Sacramento Police Officer Mark Redlich responded to a call for assistance from Courtney Thomas. Thomas was arrested but not charged with any crimes. She spoke to Officer Redlich about the robbery at the Doubletree. She told him that defendant was the person who committed the robbery, and he used a real handgun. Thomas identified defendant in a field lineup, and told law enforcement officers they would find the gun he used to rob the McGuires in some bushes five or six houses away from defendant's residence. Thomas then led the police to a pistol in a bag, in a bush, by defendant's house.
Defendant was subsequently arrested and charged with second degree robbery, attempted robbery, and possession of a firearm by a felon. It was further alleged that defendant personally used a firearm during the commission of his crimes and was previously convicted of a serious or violent felony. Defendant pled not guilty to the charges and denied the enhancement allegations.
During trial, Thomas testified that she was with defendant on the night of the Doubletree robbery. She said defendant was driving a gold Acura and she was in the passenger seat. Unsure why they were at the Doubletree, Thomas remembered defendant driving around the parking lot "a lot," making them look "suspicious."
Defendant parked the car and said, "I'm about to get them." Thomas described how defendant then got out of the car, went to the trunk, then left. Several minutes later, defendant returned, "hectic" and with $35 in cash. Defendant then said to Thomas, "This is what I got." Defendant recounted to Thomas that he told the victims, "I don't want your life, I want your money."
Defendant did not immediately leave the hotel parking lot, but drove around the property. Thomas remembered nearly colliding with Potts, the security guard. Defendant threatened to kill Thomas if she said anything to the police.
The jury found defendant guilty on all counts; it also found true the allegation that defendant committed the robbery and attempted robbery while armed with a firearm. Defendant waived his right to a jury on the prior conviction allegation, and the trial court found the allegation to be true.
The court subsequently granted defendant's Romero*fn1 motion, striking defendant's prior strike conviction, and sentenced defendant to an aggregate term of 18 years in state prison. Defendant was ordered to pay various fines and fees and was awarded 303 days of custody credit (264 actual and 39 conduct). Defendant appeals.
Counsel filed an opening brief that sets forth the facts of the case and asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
BUTZ , J.
MAURO , J.