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The People v. Kevin Porter

June 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN PORTER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F04344)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Porter CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following an 18-day trial, during which defendant represented himself, a jury found defendant guilty of 11 counts of second degree robbery (Pen. Code, § 211)*fn1 and five counts of second degree attempted robbery (§§ 664/211). In a bifurcated proceeding, the jury found true an allegation defendant had a prior serious felony conviction that also qualified as a strike. (§§ 667, subd. (a)(1) and (b)-(i); 1170.12.) Defendant was sentenced to an aggregate term of 41 years and 8 months in state prison.*fn2

Represented by appellate counsel, defendant appeals, contending the trial court erred in (1) denying his motions to suppress all or at least part of his post-arrest statements to law enforcement, (2) allowing him to represent himself and failing to appoint standby counsel, and (3) calculating his aggregate prison term. Having reviewed the entire record, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in an amended information with committing or attempting to commit 16 robberies in Sacramento County during a roughly two-week period from May 19 through June 5, 2009. During pre-trial proceedings, defendant requested to represent himself. After advising defendant of the perils of self-representation, the trial court granted the motion. On the seventh day of trial, after 21 witnesses had testified, defendant advised the court that he wanted a lawyer. The trial court denied the motion as untimely, explaining that "[t]here's no attorney that [sic] is prepared to try your case." Additional facts concerning defendant's request to represent himself and subsequent request for counsel are set forth below.

I The Prosecution

A. Second Degree Robbery of Wendy's (Count 1)

On May 19, 2009, a man entered the Wendy's restaurant on Watt and El Camino Avenues and handed an employee a note that read, "[G]ive me all the money in your drawer right now, or I'll shoot you." The man lifted up his sweatshirt to reveal the handle of a black gun. The employee opened the register and gave the man roughly $170 in cash. The employee described the man as African American, 23 to 24 years old, 160 to 170 pounds, approximately 5'7", and bald. Two weeks after the robbery, the employee identified defendant from a photographic lineup as the robber. She also positively identified him at trial.

B. Second Degree Robbery of Subway (Count 2)

On May 23, 2009, a man entered a Subway restaurant on El Camino Avenue and threw a note onto the counter that read, "Give me the $. Don't do anything stupid." The employee gave the man $200, and the man ran out of the store. The employee described the man as African American, about 5'7", 170 pounds, and with short hair. The employee was unable to positively identify the man that robbed her from a photographic lineup or at trial. The store manager, who was present during the robbery, also was unable to positively identify the robber from a photographic lineup but identified defendant as the robber at trial.

C. Second Degree Robbery of McDonald's (Count 3)

On May 24, 2009, a man entered a McDonald's restaurant on Madison Avenue and handed the shift manager a note. The shift manager was unable to read the note and turned to ask a co-worker for assistance. The man said he was not stupid and that he had a gun. The shift manager gave the man about $100 from the register. The shift manager described the man as African American, between 19 and 20 years old, 5'11", and 170 pounds. The robbery was captured on videotape, portions of which were shown to the jury. The videotape showed the robber wearing the same blue shorts defendant was wearing when he was arrested less than two weeks later. The shift manager identified defendant from a photographic lineup and in court as the robber. A customer, who was present during the robbery, identified defendant as the robber on the videotape and at trial.

D. Attempted Second Degree Robbery of Taco Bell (Count 4)

On May 26, 2009, a man entered a Taco Bell on Madison Avenue and gave a cashier a note that read, "Give me all the $now" and "Don't be stupid." The cashier ran to the back of the restaurant and into the manager's office. The cashier described the man as African American, 20 to 27 years old, between 5'7" and 5'9", and between 200 and 235 pounds. The cashier could not identify anyone in a photographic lineup and could not identify defendant as the man who handed him the note at trial.

E. Second Degree Robbery of Arby's (Count 5)

On May 26, 2009, a man entered the Arby's restaurant on Madison Avenue and Fair Oaks Boulevard and handed a cashier a note that read, "Give me all the $in the register" and "Don't do anything stupid." The note also indicated the man had a gun. The cashier gave the man between $150 and $200. The man ran out the front door and got into the passenger side of a gold-green Malibu. The cashier described the man as African American, approximately 20 years old, 5'9", 175 to 180 pounds, and with a "little fro." A witness provided law enforcement with a partial license plate number from the Malibu, and following defendant's arrest it was determined that the car was registered to Cynthia Adcock, one of defendant's roommates. The cashier identified defendant from a photographic lineup and at trial as the robber. A witness also selected defendant from a photographic lineup but was unable to identify him as the robber at trial.

F. Second Degree Robbery of Baskin Robbins (Count 6)

On May 27, 2009, a man entered a Baskin Robbins store on Sunrise Boulevard and handed a cashier a note that read, "Give me all the $now. I have a gun. Don't be stupid." The cashier gave the man about $80. She described him as African American, approximately 20 years old, with black hair, and wearing white and blue basketball shorts. The man was caught on video surveillance leaving the store, and that portion of the videotape was shown to the jury. The cashier identified defendant as the robber at trial. She also identified the shorts he was wearing at the time of the robbery as the same shorts he was wearing at the time he was arrested. A co-worker who was present during the robbery identified defendant from a photographic lineup and at trial as the robber.

G. Second Degree Robbery of K-Mart (Count 7)

On May 28, 2009, a man entered a K-Mart store on Sunrise Boulevard and handed a cashier a note that read, "Give me your money," and "I have a gun." The cashier gave the man about $260. She described the man as African American and wearing dark jeans with designs on the pockets and a white shirt. The robbery was captured on video surveillance, portions of which were shown to the jury. The cashier identified defendant from a photographic lineup and at trial as the robber.

H. Attempted Second Degree Robbery of Taco Bell (Count 8)

On May 28, 2009, a man entered a Taco Bell on Sunrise Boulevard and handed a cashier a note that said, "Give me all your money now! I have a gun." The cashier told the man he would have to order something first, and the man told her to give him a "Gordita." The cashier then ran to the back of the restaurant, and the man ran out the door. The cashier described the man as African American, in his mid-twenties, with "trim" hair, about 5'9" to 5'10", and 180 to 185 pounds. The attempted robbery was captured on video surveillance, portions of which were shown to the jury. The cashier identified defendant from a photographic lineup and at trial as the attempted robber.

I. Second Degree Robbery of Round Table (Count 9)

On May 30, 2009, a man entered a Round Table Pizza on Manzanita Avenue and handed a supervisor a note that read, "I have a gun. Give me all the money." The supervisor gave the man about $100, and the man ran out the side door. The supervisor described the man as African American, between 20 and 25 years old, about 5'9" to 5'10", and 180 pounds. The robbery was captured on video surveillance, portions of which were shown to the jury. The supervisor was not able to identify the robber from a photographic lineup but identified defendant as the robber at trial. The supervisor's boyfriend, who observed the robbery, also identified defendant as the robber at trial.

J. Attempted Second Degree Robbery of Metro PCS

(Count 10)

On May 30, 2009, a man entered the Metro PCS store on Sunrise Boulevard and Madison Avenue and handed an employee a note that read, "[G]ive me all the money in the register or you'll die." The cashier asked the man if he was serious, and when he said that he was, she threw up her hands and told him he would have to get the money himself. She then walked the man outside, and he left. She described the man as African American, in his twenties, with a "low haircut," 5'7" to 5'8", 170 pounds, and wearing blue jeans with designs on the back pockets. She identified defendant from a photographic lineup and at trial as the attempted robber. She also testified that the jeans he was wearing at the time of the attempted robbery were the same jeans defendant was wearing when he was arrested a week later.

K. Second Degree Robbery of Togo's Eatery (Count 11)

On May 31, 2009, a man entered a Togo's Eatery on Madison Avenue and handed an employee a note that read, "Give me all the money now. Don't be stupid. I have a gun." The cashier deliberately opened the register so that the drawer would fly open and the change would spill onto the ground. The man took $420, ran out of the store, and got into a black car. Witnesses described the man as African American, between 18 and 21 years old, between 5'8" and 6', 160 to 165 pounds, with short hair, and wearing a black "Mac Dre" t-shirt.*fn3 The employee identified defendant from a photographic lineup and at trial as the robber. Two co-workers and the store manager also identified him as the robber at trial.

L. Second Degree Robbery of Dairy Queen (Count 12)

On June 2, 2009, a man entered a Dairy Queen on Fruitridge Avenue and passed an employee a note that read, "Give me all your money. I have a gun." The employee gave the man approximately $180, and the man told the cashier to get on his knees and then left. The employee described the man as African American, in his early twenties, about 5'10", between 160 and 170 pounds, and with a "short Afro." The employee identified defendant from a photographic lineup and at trial as the robber.

M. Second Degree Robbery of McDonald's (Count 13)

On June 4, 2009, a man entered a McDonald's restaurant on Florin Road and gave the supervisor a note that read, "Don't be stupid. I have a gun. Give me all the money." The supervisor gave him $100. She described the man as African American, between 5'5" and 5'8", 150 pounds, with very short hair, and wearing a black Mac Dre t-shirt. The robbery was captured on video surveillance, portions of which were shown to the jury. The supervisor was unable to identify the robber from a photographic lineup or at trial.

N. Second Degree Robbery of Subway (Count 14)

On June 5, 2009, a man entered a Subway on Fair Oaks Boulevard and ordered a sandwich. Instead of paying, he handed the employee a note that said, "Give me all your money. Don't be stupid. I have a gun." The employee gave him approximately $100. She described the man as African American, between 19 and 20 years old, 5'8" to 5'9", between 140 and 150 pounds, and with very little hair. She could not recognize the man again. Her co-worker, who witnessed the robbery, identified defendant from a photographic lineup and at trial as the robber.

O. Attempted Second Degree Robbery of Dairy Queen

(Count 15)

On June 5, 2009, a man entered a Dairy Queen on Arden Way and handed an employee a note that instructed the employee to give him all the money in the cash register and advised the employee that he had a gun and not to be stupid. The "$" symbol was used for the word money. The employee "freaked out" and attempted to talk to his manager about the note. The manager read the note, said she did not "have time for this," and pushed the panic button to call the police. The man grabbed his note and ran out the door. The employee described the man as African American, in his twenties, approximately 5'10", between 160 and 170 pounds, and wearing a black shirt and blue jeans. The manager identified defendant from a photographic lineup as the attempted robber but was unable to do so at trial. The employee identified defendant from a photographic lineup and at trial as the attempted robber. A co-worker identified defendant as the attempted robber at trial.

P. Attempted Second Degree Robbery of Subway (Count 16)

On June 5, 2009, defendant entered a Subway on Fair Oaks Boulevard and handed one of the store owners a note that read, "Give me all your money. Don't be stupid. I have a gun." The owner asked, "Are you robbing me?" When defendant responded, "Give me your money," she told him, "No." She said, "I work too hard. I work 12 hours a day. My whole family's working over there." She told him, "Just shoot me. I'm not giving you my money." When defendant started to leave, the owner called 9-1-1. Meanwhile, her husband, who had been washing dishes in the back, ran after defendant. A car pulled up and defendant tried to get in, but he fell out. He then squeezed through a fence and into a residential back yard. The resident telephoned 9-1-1 after ...


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