A judge refused Thursday to “strike” a gun use enhancement and affirmed a 16-year prison term for a pharmacist who fatally shot his female roommate’s boyfriend at the door of the defendant’s Ocean Beach condominium.
A new law this year allows judges to exercise their discretion and strike gun enhancement allegations. On appeal, Burke contended that his case should be sent back to Judge Melinda Lasater for re-sentencing since she did not have the opportunity to strike the gun enhancement at the sentencing hearing a year ago.
Lasater reiterated that she felt the 10-year sentence for the gun use should be imposed.
“I’m not going to change my mind,” the judge said.
Defense attorney David Silldorf argued that the killing was not premeditated and Burke fired his gun because he felt was in danger.
But Deputy District Attorney Kyle Sutterley said it would be a “flagrant miscarriage of justice” if the firearm allegation was stricken.
At his trial, Burke testified that he shot Robles in self-defense when the victim started to come into his home the night of June 22, 2016.
During the sentencing last year, Lasater said there were “irresponsible actions” and “missed opportunities” by both sides in the case, noting alcohol played a big part in the fatal encounter.
The judge said Burke had many accomplishments and had a good job, home and car.
“In many ways, he had it all,” the judge said.
But Lasater said Burke was tormented by his relationships with women and saw that as a failure.
The judge said Burke was self-medicating for depression and talked online of suicide and wanting to kill his ex-girlfriend’s boyfriend.
Lasater said Burke had some fear the night he killed Robles, but his decision to use deadly force was not reasonable.
Sutterley told the jury that one of Burke’s roommates, Larae Clark, started dating Robles a couple of months before he was killed.
Burke harbored romantic and sexual feelings for Clark, the prosecutor said.
On his computer, Burke wrote, “I can’t take her going out with other people,” the prosecutor said. Burke also called Robles derogatory names and an hour before the shooting wrote “I hate him,” according to Sutterley.
The prosecutor said Robles — who was out with Clark the night he was killed — read some of Burke’s text messages to her and responded, “Sounds like you have a lot to say behind my back. Hope you can back it up!”
A Lyft driver dropped Clark and Robles at the condo about 11 p.m., and she went inside, where she got into an argument with Burke, Sutterley said.
Robles decided to check on Clark when she was gone longer than anticipated and knocked on the condo door, he said.
Burke opened the door and shot Robles once in the chest and once in the throat and said, “He’s dead,” according to the prosecutor.
Sutterley said Burke jumped off a second-story balcony and ran, then called another of his roommates to say, “I just shot Jess and I’m probably going to jail.”
Burke turned himself in about 7:40 the following morning.
Defense attorney Gary Gibson told the jury that Robles was drunk when he arrived at Burke’s condominium, noting Burke was “freaked out” by the situation and armed himself when he heard a bang on the door.
Gibson said Robles came through the door — giving life to a threat made 30 minutes earlier — and Burke shot him from close range because he felt trapped.
–City News Service