People v. Debouver

         Superior Court County of Los Angeles No. BA420698 Norm Shapiro, Judge

          David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Eric J. Kohm, Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

          YEGAN, Acting P. J.

         Stephen Debouver, a career criminal with 26 different aliases, knows his way around a police station. He also knows his way around a courtroom. This time, he was convicted by jury of first degree residential burglary with a “person present” finding. (Pen. Code, §§ 459; 667.5, subd. (c)(21)).^[1] In a bifurcated proceeding, the trial court found that appellant had suffered a prior strike conviction (§§ 667, subd. (d); 1170.12, subd. (b)), a prior serious felony conviction (§ 1192.7, subd. (c)(18), and six prior separate prison terms (§ 667.5, subd. (b).) Appellant was sentenced to state prison for 13 years. He appeals and contends, among other things, that the burglary “person present” finding is not supported by the evidence. We affirm.

         Facts and Procedural History

         On January 22, 2014, at approximately 3:00 a.m., Elyahu Feiner awoke to the sound of car alarms in the apartment complex which he managed and where he lived. Feiner went into the secured subterranean garage and saw appellant leaning into a black Jeep that had a smashed window. Feiner asked if he lived there. Appellant said “yes” and walked away with a metal tool in his hand. Appellant got on a red bike and rode off with a backpack. Feiner called the police.

         Los Angeles police responded to the 911 call and found three vehicles with smashed windows. The Jeep was ransacked. A Ford Escape and a black Audi were also ransacked and had smashed windows. Fresh blood was inside the Jeep and Ford Escape.

         At 4:00 a.m., Detective Eduardo Martinez stopped appellant on a red bike about eight blocks from the apartment complex. Appellant fit the description of the burglary suspect and was carrying a backpack. Inside the backpack were six pairs of ear buds, an iPad, an iPhone, a flashlight, a pocket knife, charger plugs for Apple products, a Samsung car adaptor/charger, and a nylon case with tools. Detective Martinez searched the area where appellant was stopped and found a screwdriver.

         After Feiner identified appellant in a field show-up, appellant was arrested and transported to the police station. Appellant had a cut on his right finger and said that he had been drinking. Waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), appellant told Officer Tony Im and Detective Raul Lopez that he broke into the apartment complex garage and vehicles with the screwdriver. Appellant was not the registered owner of the iPhone in the backpack. One of the iPhone chargers, which was taken from the Ford Escape, had blood on it. It was later determined that the blood inside the damaged vehicles matched appellant’s DNA.

         Appellant was charged with first degree residential burglary. Appellant made a Faretta request to represent himself which was granted. A month later, appellant requested advisory counsel. The trial court denied the request. It noted that appellant was competent to represent himself and that standby counsel had been appointed. Thereafter, appellant brought a motion to exclude his Miranda statement which was denied.

         At trial, appellant stated that he was drunk and blacked out after consuming alcohol and prescription medication. He did not remember what happened or even recall speaking to the police. On cross-examination, appellant was questioned about his “Miranda statement” in which he said that he “jimmied [his] way” into the apartment complex with the screwdriver. During the police interview, appellant admitted that he broke into several cars and cut his finger. Appellant acknowledged that he fled on his bike after Feiner entered the garage and confronted him.

         Advisory Counsel

         Appellant argues that the trial court undermined his Sixth Amendment right to represent himself when it denied his request for advisory counsel. The request was made several weeks after the court granted appellant’s Faretta motion.

         It is settled that a defendant who elects to represent himself has no constitutional right to advisory counsel or any other form of hybrid representation. (People v. Moore (2011) 51 Cal.4th 1104, 1120; People v. Garcia (2000) 78 Cal.App.4th 1422, 1430.) The decision to grant or deny a request for advisory counsel is discretionary and will not be set aside absent a showing the ruling is arbitrary, capricious, or whimsical. (People v. Crandell (1988) 46 Cal.3d 833, 863.) In ruling on such a request, the trial court may consider defendant’s demonstrated legal abilities and reasons for seeking the appointment of advisory counsel, including evidence of any manipulative purpose. (Id., at pp. 863-864.) Other factors include the seriousness of the charges, the complexity of the issues, and defendant’s education and familiarity with the justice system. (Ibid.; People v. Bigelow (1984) 37 Cal.3d 731, 743-744.) “[T]he right to the assistance of counsel, guaranteed by the state and federal Constitutions, has never been held to include a right to the appointment of advisory counsel to assist a defendant who voluntarily and knowingly elects self-representation. [Citation.]” (People v. Crandell, supra, 46 Cal.3d at p. 864.)

         The trial court ruled that it was not required to appoint advisory counsel but acknowledged that courts may do so. This is not a case in which the trial court failed to exercise its discretion or believed there is no such thing as advisory counsel. (See e.g., People v. Crandell, supra, 46 Cal.3d at p. 862; People v. Bigelow, supra, 37 Cal.3d at p. 743.) Substantial evidence supported the finding that appellant was capable of representing himself without advisory counsel. He had represented himself in a prior case and demonstrated that he could competently represent himself in the present case. Appellant brought a motion for pro per funds, hired a private investigator, sought discovery, retained an expert, and brought motions to disqualify the trial judge and to ...