California Court of Appeals, Second District, Sixth Division
Court County of Los Angeles No. BA420698 Norm Shapiro, Judge
L. Annicchiarico, under appointment by the Court of Appeal,
for Defendant and Appellant.
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.
Acting P. J.
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)). 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.
and Procedural History
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.
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.
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.
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
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
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.
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.
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.
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 ...