People v. Burris CA4/1

Filed 7/31/23 P. v. Burris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080549
Plaintiff and Respondent,
v. (Super. Ct. No. SCD288335)
KIGIMANI BURRIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth K. So, Judge. Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for
Plaintiff and Respondent.
Kigimani Burris appeals from a final judgment after a jury convicted
him of 16 counts of robbery and found true all corresponding firearm
allegations. The trial court, after finding true the prior serious felony
allegations and the prior strike allegations as well as five of six aggravating
factors, sentenced Burris to a prison term of 400 years to life, plus 275 years.
On appeal, Burris contends that the trial court erred in denying his request
to represent himself, which he raised on the day trial was set to begin.
Burris also contends that the trial court was unaware of its discretion to
strike the enhancements imposed under Penal Code section 12022.53,
subdivision (b)1 and instead impose uncharged section 12022.5, subdivision
(a) enhancements, and that we must therefore remand the case to allow the
court to decide whether to exercise its discretion in resentencing Burris.
We find no error in the trial court’s denial of Burris’s untimely self-
representation request. We further conclude that, even assuming the trial
court had the discretion to strike the section 12022.53, subdivision (b)
enhancements and instead impose uncharged section 12022.5, subdivision (a)
enhancements—an issue currently pending before the Supreme Court that
we need not and do not decide here—the record clearly indicates that the trial
court would not have exercised that discretion. We therefore affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Crimes
Between October 20, 2020, and November 19, 2020, Burris and his co-
defendant, W.W., committed 18 robberies at various motels, gas stations, and
convenience stores across Orange County, San Diego County, San Bernardino
County, and Riverside County. Burris and W.W. were armed during these
robberies and confronted several victims at gunpoint.
Law enforcement officers investigating the crimes began tracking a
white Dodge Challenger that had been used in the robberies and eventually
1 Undesignated statutory references are to the Penal Code.
2
determined it was a car Burris had rented. The officers located the rental car
at an address belonging to Burris, continued surveilling the vehicle, and
ultimately followed it to the parking lot of a convenience store in Laguna
Hills on November 19, 2020. At least one undercover officer witnessed Burris
and W.W. rob the convenience store clerk at gunpoint and drive away in the
Dodge Challenger. After a high-speed chase and several attempts to flee
from law enforcement, Burris and W.W. were arrested and ultimately
charged.
B. Trial Proceedings
Burris was represented by the public defender when he was arraigned
on the amended complaint on December 14, 2020. The complaint charged
him and co-defendant W.W. with 21 counts of robbery, attempted robbery,
and conspiracy to commit robbery, as well as several allegations of personally
and intentionally using a firearm. Burris pleaded not guilty to all charges.
He retained private counsel in January 2021 to represent him at his
preliminary hearing in June 2021. After the preliminary hearing, the court
held Burris to answer on all charges, and the public defender was
reappointed on June 21, 2021. Trial was initially set for August 10, 2021 but
was continued first to January 19, 2022 and then to April 25, 2022.
On April 25, 2022, the trial court called Burris’s case for trial. Burris,
his public defender, and a deputy district attorney appeared in court, and the
deputy district attorney filed a second amended information. The second
amended information charged Burris with one count of conspiracy to commit
robbery (§ 182, subd. (a)(1)) (count 1); 18 counts of robbery (§ 211) (counts 2–
5, 8–10, 12, 13, 16–19, 21–23, 25, and 26); six counts of possession of a
firearm by a felon (§ 29800, subd. (a)(1)) (counts 7, 11, 14, 20, 24, and 27); and
two counts of attempted robbery (§ 664/§ 211) (counts 6 and 15). The
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information alleged that with respect to counts 6, 10, 12, 13, 18, 19, 21–23,
25, and 26, Burris personally and intentionally used a firearm (§ 12022.53,
subd. (b)), and that with respect to counts 2, 3, 4, 5, 8, 9, 16, and 17, Burris
was a principal in the commission of an offense in which another principal
was armed with a firearm (§12022, subd. (a)(1)).
The information alleged six aggravating factors within the meaning of
California Rules of Court, rule 4.421: Burris was armed with or used a
handgun (rule 4.421, subd. (a)(2)); Burris induced others to participate or
occupied a position of leadership (rule 4.421, subd. (a)(4)); Burris had served
four prior prison terms (rule 4.421, subd. (b)(3)); the offense was carried out
with planning, sophistication, and professionalism (rule 4.421, subd. (a)(8));
the offense involved taking property of great monetary value (rule 4.421,
subd. (a)(9)); and the offenses were numerous and of increasing seriousness
(rule 4.421, subd. (b)(2)). The information further alleged that Burris had
suffered two prior serious felony convictions and three prior strike
convictions.
Immediately before Burris’s arraignment on the second amended
information and the impanelment of the jury, Burris informed the trial court
that he “would like to go pro per.” The court asked whether Burris was ready
to try the case, and he said he was not, estimating that it would be “another
two months” or “maybe three months” before he would be ready for trial.
The trial court judge first went through the procedural history of the
case and confirmed that Burris’s public defender was ready for trial. He then
denied Burris’s request for self-representation as untimely. The court noted
that the case was “pretty complicated,” with 27 counts and many witnesses,
and then stated it was “making a finding that the request is untimely and it’s
more delay.” The court reiterated: “I’m finding that’s untimely because it’s
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on the day that this case was sent out for trial, and you indicated you would
not be ready for another several months.”
Burris argued that he sought to represent himself to obtain evidence
showing the judge presiding at his preliminary examination slept during the
hearing. He believed that the attorneys knew the judge was sleeping, but
they would not admit it or “rock the boat,” and he wanted to subpoena
courtroom video he believed would prove this. The trial court repeated its
finding that Burris’s request was untimely based on the complexity of the
case, noting that there might be as many as 73 witnesses at trial, and the fact
that Burris would not be ready for trial for a couple of months.
Burris further argued that he was missing discovery, including videos
he alleged would show 10 law enforcement officers assaulting him during his
arrest. He wanted the jurors to see those videos but was told “they can’t get
them in court,” which made him feel like he was “bring screwed all the way
around.” The trial court again stated that Burris’s motion to represent
himself was untimely and that the parties would proceed to motions and jury
selection.
The next day, the trial court revisited Burris’s request to represent
himself to confirm that the reasons Burris was seeking to represent himself
were on the record. Burris stated: “Well, I just feel that if I went pro per, I
would be able to get all of my discoveries, everything that I need that is
usually not turned over to the public defenders[.]” Burris clarified that he did
not have a problem with the quality of his current attorney’s representation.
The public defender representing Burris informed the court that she
believed Burris was specifically referring to body-worn camera footage from
his arrest, and that while she had requested the footage, her understanding
was that the officers who arrested Burris were not wearing body-worn
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cameras. The deputy district attorney confirmed that the police officers who
arrested Burris were either not wearing cameras or were not recording at the
time of his arrest.
Burris disagreed, stating that there were “well over 20, 30 officers”
present the day he was arrested and that it was only the two officers
interviewed by the district attorney’s office who allegedly did not have their
body-worn cameras activated. The court stated that any evidence relating to
Burris’s arrest had no bearing on his guilt or innocence as to the robbery that
occurred just before his arrest. Burris responded that one of the officers who
arrested him committed perjury and that he could use the videos to prove
that. The trial court reiterated that the videos were not relevant to the
question of whether Burris was guilty of the robbery.
Responding to the trial court’s inquiry as to the investigation into the
judge who allegedly fell asleep while presiding over Burris’s preliminary
hearing, the public defender confirmed that she interviewed Burris’s previous
private counsel who had represented him at the hearing, and he stated in a
declaration that although the judge sometimes had his eyes closed, the
attorney had no reason to believe he was not paying attention to the case.
The public defender further explained that she read the preliminary hearing
transcript and believed the judge made the proper observations, even
dismissing one of the charges.
The trial court ultimately reiterated its finding that Burris’s request to
represent himself was untimely, the case was complex, everyone was ready to
proceed to trial, and there would be too long of a delay if the request were
granted. The court also made “a finding that the quality of the
representation of counsel has been more than adequate” and explained that
the reasons for the self-representation request did not go to the heart of
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whether Burris was guilty or not guilty of the charges filed against him. The
parties then proceeded to voir dire.
The next day, Burris pleaded guilty to the six counts of possession of a
firearm by a felon (counts 7, 11, 14, 20, 24, and 27) and admitted the two
prior serious felony convictions.
A bifurcated trial was then held on the robbery counts and remaining
allegations. The jury found Burris not guilty of count 15, attempted robbery,
and the trial court dismissed counts 2, 3, and 4 because the jury was unable
to reach a verdict. The jury convicted Burris on all of the remaining counts
and found true all of the firearm allegations. The trial court found true the
prior serious felony allegations and the prior strike allegations. The court
also found true five of the six aggravating factors.
C. Sentencing
The trial court sentenced Burris to a prison term of 400 years to life,
plus 275 years, consisting of the following: 16 consecutive terms of 25 years to
life for robbery (§ 211), charged in counts 5–10, 12, 13, 16–19, 21–23, 25, and
26; 11 consecutive 10-year terms for the personal use enhancements on
counts 6, 10, 12, 13, 18, 19, 21–23, 25, and 26 (§ 12022.53, subd. (b)); five
consecutive one-year terms for the vicariously armed enhancements on
counts 5, 8, 9, 16, and 17 (§ 12022, subd. (a)); and 16 consecutive 10-year
terms for the two serious prior felony enhancements on counts 5, 6, 8–10, 12,
13, 16–19, 21–23, 25, and 26 (§ 667, subd. (a)). The court stayed the
sentences on counts 1, 7, 11, 14, 20, 24, and 27 pursuant to section 654.
Burris timely appealed.
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DISCUSSION
I
Burris contends that the trial court erred by denying his request under
Faretta v. California (1975) 422 U.S. 806 to represent himself as untimely
and that, even if his request was untimely, the court abused its discretion in
denying it. His contention lacks merit.
A. Burris’s Faretta Request Was Untimely
Burris first urges us to apply the Ninth Circuit’s “impaneled jury” rule
to find that his request for self-representation was timely. Under California
law, a Faretta motion is timely only if made “a reasonable time prior to the
commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128
(Windham).) And “once a defendant has chosen to proceed to trial
represented by counsel,” his motion for self-representation is “addressed to
the sound discretion of the court.” (Ibid.) Under the Ninth Circuit rule, a
Faretta motion is “timely as a matter of law if made before the jury is
impaneled, so that the motion must be granted unless it is shown that the
motion is made for the purpose of delay.” (People v. Burton (1989) 48 Cal.3d
843, 853 (Burton), italics added; see also Avila v. Roe (9th Cir. 2002) 298 F.3d
750, 753.)
The problem with Burris’s argument that we should apply the Ninth
Circuit rule is that it has been repeatedly rejected by the California Supreme
Court. In Burton, the Court found that, to the extent that there is even a
difference between the impaneled jury rule and California law, the Ninth
Circuit rule is “too rigid in circumscribing the discretion of the trial court,”
and it concluded that the Court should adhere to the California rule.
(Burton, supra, 48 Cal.3d at p. 854.) In Windham, the Court explained that a
“defendant should not be permitted to wait until the day preceding trial
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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 motion for self-representation is addressed to
the sound discretion of the trial court . . . .” (Windham, supra, 19 Cal.3d at
p. 128, fn. 5.)
More recently, the Supreme Court reaffirmed the Windham standard,
explaining that the Court has “held on numerous occasions that Faretta
motions made on the eve of trial are untimely,” and questioning the rationale
for the Ninth Circuit cases “suggesting that ‘requests made “weeks before
trial” ’ are invariably timely.” (People v. Lynch (2010) 50 Cal.4th 693, 722,
724 (Lynch).) And in People v. Johnson (2019) 8 Cal.5th 475 (Johnson),
where the defendant also argued in favor of the Ninth Circuit rule “that a
Faretta motion is timely as a matter of law if it is made before trial,” the
Supreme Court again rejected it: “Although we recognize that some federal
appellate decisions have adopted a different approach, we see no compelling
reason to reconsider the standard set forth in Lynch at this time.” (Johnson,
at p. 502.)
We must follow Supreme Court precedent, and we therefore decline
Burris’s invitation to apply the Ninth Circuit rule to find his request for self-
representation timely. (See Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455; People v. Sandee (2017) 15 Cal.App.5th 294, 304 [“We are
not bound by Ninth Circuit precedent [citation], and we do not find
[defendant’s] analysis to be persuasive because it does not follow the
approach approved by the California Supreme Court . . . .”].)
Burris next argues that even if we apply California law, his Faretta
request on the day of trial was not untimely. We are not persuaded.
Although “timeliness for purposes of Faretta is based not on a fixed and
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arbitrary point in time,” the Supreme Court and other California courts have
consistently concluded that “Faretta motions made on the eve of trial are
untimely.” (Lynch, supra, 50 Cal.4th at pp. 722, 724; see also Burton, supra,
48 Cal.3d at p. 853 [Faretta request untimely where defendant made it after
the case had been called for trial, both counsel had answered ready, the case
had been transferred to a trial department; voir dire began the next day and
the jury was impaneled three court days later]; People v. Valdez (2004) 32
Cal.4th 73, 102 [Faretta request untimely when made “moments before jury
selection”]; People v. Horton (1995) 11 Cal.4th 1068, 1110–1111 [Faretta
request untimely when made on the date scheduled for trial]; People v.
Stringer (2019) 41 Cal.App.5th 974, 991 [Faretta request untimely when
made the same day trial was scheduled to begin].).
Burris made his request for self-representation on the same day trial
was set to begin. The trial judge announced that Burris’s case had been
assigned to him for trial and that he expected to select a jury the next day. It
was then, for the first time, that Burris requested to represent himself,
stating that he would not be ready for trial for another two to three months.
His request was therefore untimely.
Even if the request was not untimely per se, as Burris contends, the
trial court here properly considered the relevant factors in concluding the
request was untimely. (See Lynch, supra, 50 Cal.4th at p. 726 [“[A] trial
court properly considers not only the time between the motion and the
scheduled trial date, but also such factors as whether trial counsel is ready to
proceed to trial, the number of witnesses and the reluctance or availability of
crucial trial witnesses, the complexity of the case, any ongoing pretrial
proceedings, and whether the defendant had earlier opportunities to assert
his right of self-representation.”].) As the trial court explained, Burris’s case
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was complex, with 27 counts charged and a witness list containing 73
witnesses.2 Burris made his request on the same day trial was scheduled to
begin, and while his public defender and the prosecutor were both ready for
trial, Burris was not. He estimated he would need an additional two to three
months to prepare. Burris provided no explanation for why he had not
previously requested to represent himself. Under these circumstances, the
trial court properly found Burris’s self-representation request untimely.
B. The Trial Court Did Not Abuse Its Discretion in Denying Burris’s Faretta
Request
When a court denies an untimely request for self-representation, we
must also consider whether its denial was an abuse of discretion. (People v.
Buenrostro (2018) 6 Cal.5th 367, 426 (Buenrostro).) Burris contends that
even if we find his Faretta request untimely, we must still reverse the
judgment because the trial court abused its discretion in denying the request.
According to Burris, the trial court’s stated reasons for the denial were either
improper or unsupported by the record. We disagree and conclude that no
abuse of discretion has been shown.
The Supreme Court has held that a trial court exercising its discretion
to grant or deny an untimely Faretta request “should consider, among other
factors, ‘the quality of counsel’s representation of the defendant, the
defendant’s prior proclivity to substitute counsel, the reasons for the request,
2 Burris asserts that permitting courts to deny a Faretta request based
on the number of counts and witnesses would preclude self-representation for
any defendant facing trial on multiple counts with many witnesses. Not so.
First, the Supreme Court has held that a trial court properly considers such
facts when determining whether a Faretta request is untimely. (Lynch,
supra, 50 Cal.4th at p. 726.) That is precisely what the trial court did here.
Burris could have made his request sooner but chose not to. Second, the trial
court considered several relevant factors and did not base its decision solely
on the number of counts and witnesses.
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the length and stage of the proceedings, and the disruption or delay which
might reasonably be expected to follow the granting of such a motion.’ ”
(Buenrostro, supra, 6 Cal.5th at p. 426, quoting Windham, supra, 19 Cal.3d
at p. 128.) Here, in two separate discussions with Burris, the trial court
expressly considered the quality of defense counsel’s representation, Burris’s
reasons for his self-representation request, the length and stage of
proceedings, and the disruption or delay that could reasonably be expected to
result if the request were granted.
In assessing the self-representation request, the trial court first
confirmed that defense counsel was ready for trial. The court also asked
Burris if his request was related to the quality of his attorney’s
representation. Burris responded, “No. No, not at all.” The court ultimately
made a finding that the quality of the representation was “more than
adequate.”
The trial court also considered the reasons for the request and found
them to be inadequate. Burris expressed his desire to obtain videos showing
that (1) the judge presiding at his preliminary examination slept during the
hearing and (2) several law enforcement officers assaulted him during his
arrest. Burris believed that if he were representing himself, he “would be
able to get all of [the] discover[y]” he needed “that is usually not turned over
to the public defenders[.]”
Statements by Burris’s public defender and the prosecutor in response
to the trial court’s questioning refuted these claims. The public defender
explained that she had interviewed Burris’s previous private counsel, who
had no reason to believe the preliminary hearing judge was not paying
attention. Moreover, she believed the transcript reflected the judge’s active
participation in the hearing, as he had made “the proper objections and
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observations” and “even dismissed one of the allegations, one of the charges,
on the complaint.” Both Burris’s public defender and the prosecutor stated
that it was their understanding that there was no body-worn footage of
Burris’s arrest, as the police officers who arrested him were either not
wearing cameras or were not recording at the time of his arrest. The trial
court first confirmed that Burris was not charged with any arrest-related
conduct and then concluded that any evidence regarding what happened
during the arrest had no bearing on his guilt or innocence as to the charged
offenses.
Regarding the length and stage of the proceedings, the trial court noted
several times that Burris failed to make his Faretta request until the day of
trial. At the time Burris made his request, it had been 16 months since he
first pleaded not guilty to the charges filed against him and 10 months since
he was arraigned on the information. Both trial counsel were prepared to go
to trial, whereas Burris conceded that he was not, estimating that he would
need a trial continuance of at least two to three months.
The trial court further found that granting Burris’s Faretta request
would result in too much disruption and delay. Given Burris’s accompanying
request to continue trial for another two to three months, this conclusion was
warranted. And contrary to Burris’s suggestion, the trial court was not
required to expressly find that he had made the request for the purpose of
delay—rather, it is sufficient that the court found such delay would
reasonably result. (See Buenorostro, supra, 6 Cal.5th at p. 426 [factors to be
considered by the court in assessing a Faretta request include “the disruption
or delay which might reasonably be expected to follow the granting of such a
motion,” italics added].)
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Finally, though the trial court did not expressly reference Burris’s prior
proclivity to substitute counsel, and it appears he exhibited none, the court’s
findings as to the other factors are more than sufficient to support its denial
of the request. (See People v. Wright (2021) 12 Cal.5th 419, 439 [affirming
denial of Faretta motion despite that defendant exhibited no prior proclivity
to substitute counsel].) We therefore conclude that the trial court did not
abuse its discretion in denying Burris’s Faretta motion.
II
Burris also contends that we must remand his case to permit the trial
court to consider whether to exercise its discretion to strike the section
12022.53, subdivision (b) enhancements and instead impose uncharged
section 12022.5, subdivision (a) enhancements. As Burris notes, the issue of
whether trial courts have the discretion to strike section 12022.53
enhancements and instead impose lesser uncharged enhancements under
section 12022.5 is currently pending before the Supreme Court. (See People
v. McDavid (2022) 77 Cal.App.5th 763, review granted September 28, 2022,
S275940.)
The People argue that section 12022.53, subdivision (j), prohibits the
imposition of punishment for a lesser enhancement outside of section
12022.53, and the trial court therefore lacked discretion to impose a lesser
firearm enhancement from another statute. The People further contend that
even if the trial court did have such discretion, remand is unnecessary
because the court’s statements at sentencing show that it would not have
opted to impose a lesser enhancement. Because we agree with the People’s
second argument, we need not reach the first.
Remand for resentencing is not required where “the record shows that
the trial court clearly indicated when it originally sentenced the defendant
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that it would not in any event have stricken” an enhancement. (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425.) Here, the trial court repeatedly
acknowledged its discretion to strike various enhancements and allegations,
but declined to exercise any discretion in Burris’s favor: “And I understand
that I have discretion. I understand I have discretion to strike strikes, to
strike priors, to strike the nickel prior, to strike the gun allegation. I
understand I have that discretion, and unfortunately, in this case, I don’t see
any remorse.” In addition to lack of remorse, the court cited a number of
other factors that supported its decision not to strike the priors or allegations,
including the fact that Burris was armed during the robberies, the
vulnerability of the victims, the emotional damage he inflicted on the victims,
the level of his participation, and his criminal history. The court then
repeated: “[B]ased on the fact I understand I have discretion, I understand I
can strike these things, I can strike these allegations, I can strike the strike,
I can strike the nickel prior, I can strike the gun allegations, but I’m
exercising my discretion and declining to do so.” The court further
acknowledged its discretion to impose concurrent rather than consecutive
terms, and again declined to impose concurrent terms, because the victims
“were each individually traumatized and terrorized.”
The trial court’s repeated recognition of its broad discretion in
sentencing Burris, its decision not to exercise any discretion in Burris’s favor,
and its stated reasons for declining to strike any prior or allegation all
demonstrate that it intended to impose the most severe punishment. The
record reflects that the court knew it had multiple ways to exercise
sentencing discretion in favor of a more lenient sentence, but still chose to
impose the greatest possible sentence. We therefore conclude that, even
assuming the trial court had discretion to impose section 12022.5, subdivision
15
(a) enhancements and also was not aware of its discretion at the time of
Burris’s sentencing, the record clearly indicates the court would have
declined to exercise that discretion.
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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