People v. Debouver

• Decision Date: 27 July 2016
• Docket Number: 2d Crim. No. B262455
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stephen DEBOUVER, Defendant and Appellant.

1 Cal.App.5th 972

205 Cal.Rptr.3d 318

The PEOPLE, Plaintiff and Respondent

v.Stephen DEBOUVER, Defendant and Appellant.

2d Crim. No. B262455

Court of Appeal, Second District, Division 6, California.

Filed July 27, 2016

David L. Annicchiarico, San Francisco, 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), 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, 127 Cal.Rptr.3d 2, 253 P.3d 1153

; People v. Garcia (2000) 78 Cal.App.4th 1422, 1430, 93 Cal.Rptr.2d 796.) 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, 251 Cal.Rptr. 227, 760 P.2d 423.) 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, 251 Cal.Rptr. 227, 760 P.2d 423.) 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, 209 Cal.Rptr. 328, 691 P.2d 994.) “[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, 251 Cal.Rptr. 227, 760 P.2d 423.)

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, 251 Cal.Rptr. 227, 760 P.2d 423

; People v. Bigelow, supra, 37 Cal.3d at p. 743, 209 Cal.Rptr. 328, 691 P.2d 994.) 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 exclude evidence. He makes no showing that the trial court erred in not appointing advisory counsel or that appellant was prejudiced by the ruling. (People v. Crandell, supra, 46 Cal.3d at pp. 862–866, 251 Cal.Rptr. 227, 760 P.2d 423

.)

Appellant argues that he could have presented a more convincing defense had the trial court appointed advisory counsel. Appellant testified that he consumed so much alcohol and medication that he could not remember what happened. The jury did not believe him. Appellant claims that advisory counsel, if appointed, would have requested a jury instruction on voluntary intoxication. But those instructions were given. The trial court instructed on voluntary intoxication and how it may affect appellant's ability to form the requisite specific intent to commit a burglary. (CALJIC 4.21

& 4.22.)

Appellant also argues that advisory counsel could have advised appellant to hire an expert to explain the effects of alcohol and prescription medication. Appellant was and is no stranger to the criminal justice system.² He was and is “trial savvy.” He hired an expert on confessions without the assistance of counsel. One can only speculate on whether appellant would have listened to advisory counsel and hired another expert. “Trying to assess prejudice in this setting would amount to ‘speculation running riot.’ [Citation.]” (People v. Bigelow, supra, 37 Cal.3d at pp. 745–746, 209 Cal.Rptr. 328, 691 P.2d 994

.)

Appellant argues that advisory counsel could have warned him about the perils of testifying and how it would subject him to impeachment. A defendant's decision to testify is personal and must be honored even when the defendant is represented by counsel and counsel does not want to call the defendant as a witness. (People v. Lucas (1995) 12 Cal.4th 415, 444, 48 Cal.Rptr.2d 525, 907 P.2d 373

.) Had appellant not testified, the jury would have heard the same damning evidence: testimony that the apartment manager caught appellant in the garage, that appellant cut his finger and bled inside the vehicles, that the blood DNA match was conclusive, that the police found the screwdriver, and that stolen property was in appellant's backpack. It is not reasonably probable that he would have obtained more favorable result had advisory counsel been appointed. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 716, 54 Cal.Rptr.3d 601 [applying People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 harmless error analysis].)

Miranda Statement

Appellant claims that his statements were the product of police coercion. Appellant forfeited the issue by not raising it at trial. (

People v. Kennedy 2005) 36 Cal.4th 595, 611–612, 31 Cal.Rptr.3d 160, 115 P.3d 472

[failure to object on a coercion theory forfeited claim that coerced testimony was erroneously admitted], overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458–459, 111 Cal.Rptr.3d 589, 233 P.3d 1000.)

Appellant argued that he was too intoxicated to waive his Miranda

rights. Officer Im testified that appellant had been drinking but voluntarily and knowingly waived his Miranda rights and provided an oral and written statement. Appellant testified that he “blacked out,” that “my will was overborne,” and “I was not in the right...