People v. Burton

• Decision Date: 08 May 1989
• Docket Number: No. S004691,No. 24589,S004691,24589
• Citation: 48 Cal.3d 843,771 P.2d 1270,258 Cal.Rptr. 184
• Parties: , 771 P.2d 1270 The PEOPLE, Plaintiff and Respondent, v. Andre BURTON, Defendant and Appellant. Crim.
• Court: California Supreme Court

Page 184

258 Cal.Rptr. 184

48 Cal.3d 843, 771 P.2d 1270

The PEOPLE, Plaintiff and Respondent, v. Andre BURTON, Defendant and Appellant.

No. S004691.

Crim. No. 24589.

Supreme Court of California In Bank.

May 8, 1989.

Rehearing Denied July 27, 1989.

[771 P.2d 1273] Samuel Jackson, under appointment by the Supreme Court, and L. Marshall Smith, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Asst. Atty. Gen., Gary R. Hahn, Donald E. de Nicola, Ernest Martinez and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

This case is before us on an automatic appeal from a judgment of death. Defendant Andre Burton was convicted in the Superior Court of Los Angeles County (Fagan, Judge) of murder (Pen.Code, § 187) ¹ with personal use of a firearm ( § 12022.5), three counts of robbery ( § 211) with personal use of a firearm ( § 12022.5) and, in one instance, with intentional infliction of great bodily injury ( § 12022.7). The jury also found true the special circumstance allegation that the murder was committed in the course of a robbery. ( § 190.2, subd. (a)(17)(i).)

We affirm the judgment in its entirety.

SUMMARY OF EVIDENCE

The prosecution evidence was that about 1 p.m. on February 25, 1983, defendant approached a pick-up truck in a parking lot of a K-Mart store in Long Beach. As the driver was about to get out of the truck, defendant pointed a gun into the truck and demanded money from her and her passenger. Both women complied. Defendant ordered them to put their purses on the floor of the truck and said if they were hiding money he would kill them. He ordered the driver to drive off without looking back. At the preliminary hearing and during trial, the passenger positively identified defendant as the robber.

A little after 1 p.m. the same day, Anwar Khwaja picked up a cloth bank bag containing $190 in coins from a Long Beach branch of the Bank of America. He then drove to his mother's residence with his nine-year-old daughter. He remained in the car while his daughter went to summon Neighbors heard the shooting. Robert Cordova testified that shortly after 1 p.m. on February 25, 1983, he looked out the window and saw defendant running down the street carrying a gun and a white canvas bag. Cordova's brother shouted at defendant, and defendant looked at them and chuckled. Defendant ran to an alley and got into a red truck, which drove off. Cordova positively identified defendant at the preliminary hearing and trial.

[771 P.2d 1274] his mother and sister. As his mother and sister approached his car, Mr. Khwaja [48 Cal.3d 850] saw defendant walk up to the driver's side of the car. Defendant pointed a gun at Khwaja's face and demanded money. Khwaja told defendant to take the money. Defendant shot him in the forehead, again demanding money, then shot him through the eye. Though Khwaja lost an eye, he retained consciousness and could see with the remaining eye. He saw defendant take the money bag, smiling or laughing contentedly. He saw defendant shoot his mother, Gulshakar Khwaja, as she approached. She died of a gunshot wound to the lung and heart. He saw defendant stride off with the money bag. Khwaja retained consciousness until an ambulance arrived. He positively identified defendant at trial.

Within two days defendant had been arrested. He initially denied involvement, then admitted his role in the offenses. Defendant's statement to the police, which was admitted in evidence, confirmed that on February 25, 1983, he met his confederate Otis Clements with the purpose of "going to go make some money today." Defendant provided a dark blue shirt with a Ford emblem on the shoulder for each of them, and they drove off in Clements's red pick-up truck. Defendant admitted robbing the two women in the K-Mart parking lot.

Defendant said that after the robberies, they drove around to one or two banks looking for someone to rob. They went to the Bank of America branch. Defendant got out and walked to the front of the bank, where he saw a man emerge with a money bag. Defendant ran back to the truck and told Clements to follow the man. They followed him until he parked. Clements parked his truck in an alley, and defendant approached the man on foot. He demanded money from the man, who tried to "snatch" his gun. He shot the man in the face and grabbed the money. He was running away when a lady tried to "snatch him from behind," so he shot her, too.

Defendant said he then ran to the pick-up truck and lay down on the floor while Clements drove off. They went to defendant's girlfriend's house, where they counted the money--about $100 in change. Clements was arrested before defendant gave him his share. Defendant spent the money on marijuana.

Defendant said he had sold the murder weapon to a person he would not identify. He said he burned the money bag.

On February 28, 1983, when police interrogated defendant again, defendant denied any knowledge of or involvement in the offenses and said he had made any statements about them to avoid being framed, and that he had been lying.

The defense presented no evidence.

At the penalty phase of trial, the prosecution presented evidence admitted over defense objection that in 1976, as a juvenile, defendant had committed a lewd act on a child in violation of section 288. In 1977 he committed a "residential" burglary, and in 1978, an attempted robbery. In 1979 he committed an attempted grand theft person. All of these were juvenile offenses.

This evidence was presented through the testimony of a juvenile court commissioner, who testified on the basis of defendant's official juvenile court record. He said that for the first two offenses, defendant was sentenced to a camp community placement program, and for the second two, to the California Youth Authority. He explained that the standard of proof and rules of evidence are the same in juvenile as adult court, and he described the programs and facilities of the California Youth Authority, county camps, and juvenile hall, with emphasis on the rehabilitative opportunities they provide.

The trial court also took judicial notice of defendant's February 10, 1982, guilty pleas to two counts of "residential" burglary and of his sentence to sixteen months in state prison.

Defendant presented the testimony of his mother, who testified that she had eight children, lived on Social Security and welfare, and that defendant's father had been murdered when defendant was five years old. Four of her five boys and one of her three girls had had trouble with the law. Up to the age of 13, defendant did fairly well in school. He was always a good boy at home, sometimes attended church and had been taught right from wrong. He started having trouble because of fighting at school, then was removed from her home intermittently for juvenile placement. He was a loner, but got along well with his siblings.

A Los Angeles County deputy sheriff testified that defendant had been in his area of the county jail for two months; he had been given privileges, was a backup trustee, was obedient and had never given any trouble.

After the jury returned a verdict of death, defendant moved for a new trial on the special circumstance and the penalty on the basis of our opinion in Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 (overruled by People v. Anderson (1987) 43 Cal.3d 1104, 1147, 240 Cal.Rptr. 585, 742 P.2d 1306), since his jury had not been instructed on the intent-to-kill element of the felony-murder special circumstance. The trial court granted a limited new trial on the issue of intent to kill alone; the special circumstance finding and the death verdict were not disturbed. A new jury was impaneled without being questioned on their attitude toward the death penalty. They heard testimony from Mr. Khwaja and Mr. Cordova and a pathologist about the robbery and murder, which was substantially identical to the testimony at the first trial, and heard the evidence of defendant's statement to the police. Defendant stipulated that he had killed Gulshakar Khwaja, but he did not present evidence. The jury returned a finding that defendant had intended to kill the victim.

GUILT PHASE ISSUES

1. Faretta Motion.

On the day the case was sent to the trial department for trial, defendant moved to represent himself. The trial court denied the motion as untimely, and jury selection began the following day. Defendant urges that this was error, arguing that the trial court did not conduct a meaningful hearing on the motion and a proper hearing would have disclosed that the motion was timely.

A defendant has a federal constitutional right to represent himself if he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.) In order to invoke an unconditional right of self-representation, the defendant must assert the right "within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187, cert. den. sub nom. Windham v. California (1977) 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116; see also People v. Joseph (1983) 34 Cal.3d 936, 943, 196 Cal.Rptr. 339, 671 P.2d 843.) A motion made after this period is addressed to the sound discretion of the trial court. (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187; People v. Hernandez (1985) 163 Cal.App.3d 645, 650, 209 Cal.Rptr. 809.)

The "reasonable time" requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. "For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the...