>P. v.
Burciaga













Filed 11/4/10 P. v. Burciaga CA5













NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BURCIAGA, Defendant and Appellant.

F057834 (Super. Ct. No. MCR021365A) >OPINION

APPEAL from
a judgment of the Superior Court
of Madera
County. Jennifer R.S.
Detjen, Judge.

Eileen S.
Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-



A jury
convicted appellant Anthony Burciaga of the first degree murder of Theodore
Betts. The jury also found that the
murder was committed in the course of a robbery and that Burciaga personally
and intentionally used a firearm.
Burciaga contends (1) the trial court erred in denying his motion to
suppress evidence and in failing sua sponte to instruct the jury on second
degree murder and involuntary manslaughter;
(2) trial counsel rendered ineffective assistance; and (3) cumulative
error. We reject Burciaga's contentions
and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Gabriel Martin and Theodore Betts
lived together in a remote location in Madera
County. Martin and Betts grew marijuana and stored a
large amount of marijuana on their property.
On the morning of March 21,
2005, Martin and Betts were at home when Martin heard a car driving
up their driveway and heard their dogs barking.


Martin stepped outside the house
and walked up the driveway. Martin saw a
blue SUV stopped in the driveway. The
driver of the SUV, Marissa Rubianes, asked if there were any properties in the
area for sale or rent. Martin told
Rubianes he did not know of any such properties and asked her to turn around
and leave.

At that point, Burciaga and another
man, Rudy Castillo, came out from around the back of the SUV. Burciaga
had a shotgun; Castillo had a handgun.
Burciaga told Martin to keep the dogs away from him; Burciaga then
pointed the shotgun in Martin's direction and threatened to shoot the dogs. Burciaga ordered Martin to walk back toward
the house. Martin complied, with
Burciaga following and pointing the shotgun at him. When Martin got to the stairs outside the
house, he saw Betts in the doorway of the house pointing a shotgun. Betts yelled at Martin to get another gun;
Martin stepped inside to comply. Betts
stepped outside. As Martin was reaching
for a rifle in the house, he heard a shotgun blast. The shotgun blast came from near the door
where Betts was standing.

Martin went to exit the house just
as Betts was coming in the door. Betts
was bleeding and exclaimed, â€