People v. Ventura CA2/5 ( 2016 )

Filed 1/15/16 P. v. Ventura CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B263137
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415580)
v.
WILBUR VENTURA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Craig
Richman, Judge. Affirmed.
Law Offices of Andy Miri, Andy Miri, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General,
for Plaintiff and Respondent.
Defendant and appellant Wilbur Ventura (defendant) was captured on surveillance
video assaulting a former friend, Luis Gonzalez Zepeda (Gonzalez). Defendant was
accompanied by his friend “Wilmer,” and the surveillance video shows Wilmer taking
Gonzalez’s bicycle. Just minutes later, defendant and Wilmer encountered Jose “Luigi”
Gonzalez (Luigi), Chrystian Bustamante (Bustamante), Jaime Torres (Torres) and Pedro
Tafoya (Tafoya) outside a liquor store. Bustamante and Torres had been watching
defendant’s fight with Gonzalez. A fight then broke between defendant and Luigi after
the two exchanged words, and defendant stabbed Luigi fatally; he also stabbed
Bustamante five times, but Bustamante survived. The District Attorney charged
defendant with the assault and robbery of Gonzalez, the murder of Luigi, and the
attempted murder of Bustamante. At trial, defendant testified in his own defense,
denying any knowledge that Gonzalez’s bicycle was stolen and claiming he stabbed Luigi
and Bustamante in self-defense. We are asked to decide whether the two incidents were
properly tried together and whether sufficient evidence supports the robbery, attempted
murder, and murder convictions.
FACTS
A. Assault and Robbery of Gonzalez
Until about a month before defendant assaulted and robbed Gonzalez, the two men
were on good terms. Things changed when defendant overheard Gonzalez say something
bad about a mutual friend and told Gonzalez that he did not appreciate what Gonzalez
had said. When defendant later encountered Gonzalez in an alley, Gonzalez believed that
defendant “wanted to settle it . . . by getting down.” Gonzalez decided to run away
rather than fight, because defendant had someone with him.
Gonzalez next saw defendant on August 25, 2013, when he rode his bicycle to the
liquor store to buy some beer. After buying the beer, he then went to a nearby
2
laundromat to socialize with friends. Gonzalez saw defendant “tagging” a nearby wall.1
Defendant then walked toward the laundromat. According to Gonzalez, “we both saw
each other and like knew like that was the moment it was going to happen.” Gonzalez
told detectives that defendant rushed toward him with a “ninja kick” and defendant’s
friend Wilmer joined in the fight. Defendant and Wilmer kicked and punched Gonzalez,
who fell to the ground. Defendant told Gonzalez that he was “lucky that [defendant]
didn’t shank [him].” Gonzalez “blanked out for a couple seconds.” The next thing
Gonzalez remembered was getting up, going home, and then going to the emergency
room. When he got up, he realized his bicycle was missing. Gonzalez testified at the
preliminary hearing that he saw defendant and Wilmer leave with his bicycle, but also
testified that he could not remember if defendant actually walked away with his bicycle.
At trial, he testified that he thought that Wilmer took the bicycle, but did not really
remember.
A surveillance camera from the laundromat recorded much of the assault on
Gonzalez. The timestamp of the video places the assault and robbery as beginning
around 1:42 a.m. and ending around 1:48 a.m. The video, which was played during trial,
shows defendant running across the street toward Gonzalez, pulling him down by his hair
and kicking him in the head several times. On the video footage, defendant and Wilmer
leave and then return. Wilmer goes directly across the parking lot toward the area where
Gonzalez left his bicycle, while defendant walks to Gonzalez’s location. Defendant
testified at trial that he is speaking with Gonzalez at this point. On the video footage,
Wilmer comes over with the bicycle while defendant is speaking to Gonzalez. Defendant
and Wilmer leave, but defendant comes back briefly and kicks Gonzalez again; defendant
explained at trial that he kicked Gonzalez because Gonzalez said something. Defendant
1
Tagging is the term for marking walls and surfaces with graffiti. A tagging crew
is a group of taggers formed for the specific purpose of marking surfaces with identifying
letters, names, or logos. (In re Angel R. (2008) 163 Cal.App.4th 905, 912, fn. 6.)
3
and Wilmer leave “for a while,” then return without the bicycle. Defendant kicks Wilmer
again.
B. Murder of Luigi and Attempted Murder of Bustamante
During at least part of defendant’s assault on Gonzalez, Torres and Bustamante
were inside Sammy’s Liquor Store at 9th Avenue and Jefferson Boulevard while Tafoya
and Luigi were waiting for them in a car outside the liquor store. As Torres and
Bustamante returned to the car, they saw defendant and another man fighting with
Gonzalez down the street.
When Bustamante and Torres reached the car, defendant approached them.
Bustamante, Torres, and Tafoya all testified that defendant spoke with Luigi. All three
gave a similar account of the verbal exchange. According to Torres and Tafoya,
defendant asked Luigi, “Where are you from?” Tafoya added that defendant “claimed his
hood.” Luigi then “claimed his hood,” and defendant became agitated and said, “This is
my area. This is my hood.” Bustamante said that defendant “banged on” Luigi and
claimed his (defendant’s) tagging crew.
According to Torres, Tafoya, and Bustamante, defendant and Luigi began fighting
and Bustamante intervened to help Luigi. In Torres’s account, defendant threw the first
punch at Luigi, and Bustamante intervened and punched defendant. Bustamante and
Luigi were able to walk away from the fight. Defendant came after them with a knife,
and slashed at them. Bustamante swung his belt toward the knife, but defendant stabbed
Bustamante. Bustamante fled. Luigi swung something at defendant, and defendant
tackled Luigi. As Luigi was on the ground, defendant stabbed him multiple times.
According to Bustamante, defendant pulled out a knife immediately after he had
words with Luigi. Defendant started throwing punches at Luigi with the knife in his
hand. Bustamante intervened when he saw the knife, and tried to separate the men. He
used his belt to try to prevent defendant from stabbing Luigi. Defendant stabbed
Bustamante in the forehead and nose, and split his ear in half. Defendant also stabbed
Bustamante in the knees and the side of his body. Bustamante saw defendant run back to
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Luigi and hit him in the chest. Then, according to Bustamante, “I just seen Luigi going
flat. Like, he lost all control of his body.”
According to Tafoya, Luigi and defendant just started fighting. Tafoya did not see
a knife in defendant’s hand and did not see who threw the first punch. He saw
Bustamante intervene in the fight and swing his belt toward defendant’s arms.
Bustamante returned to the car, bleeding. Tafoya saw that Luigi was on the ground with
defendant on top of him. Defendant was making stabbing motions toward Luigi’s
stomach. Luigi did not fight back.
Torres and Tafoya testified that defendant did not call for help during the fight or
attempt to flee. Bustamante testified that defendant never said he wanted to stop fighting.
Surveillance video from Sammy’s Liquor Store captured the beginning of the
incident. It shows defendant and Luigi approaching each other, with Luigi in the street
and defendant at the edge of the sidewalk. Defendant begins advancing into the street
toward Luigi and Luigi backs away from defendant. Defendant makes arm movements.
Defendant’s and Luigi’s movements take them out of the range of the surveillance video,
and the fight was not recorded by the surveillance camera. The video later shows
Bustamante running off the screen, in the direction that Luigi and defendant went. Luigi,
defendant, and Bustamante briefly reappear on the surveillance video. Bustamante
appears to be swinging his belt. Defendant backs away from Luigi and Bustamante, and
defendant then runs toward them. The fight again moves out of range of the camera.
Luigi died as a result of multiple stab wounds. He had two wounds to his chest,
one of which made a “big hole” in his heart. This wound was life-threatening and would
have immediately caused Luigi to fall to the ground. Luigi also suffered a stab wound to
his stomach, one to his back, one to his cheek and one to his foot.
Los Angeles Police Department (LAPD) Detective Michael Lavant processed the
crime scene. No weapons were recovered near Luigi’s body. A hammer head and
broken hammer handle were located in the area of the fight. The parties stipulated DNA
from Luigi was found on the hammer handle, and a DNA sample from the hammer head
showed defendant and Bustamante as possible contributors to the sample. Detective Eloy
5
Ochoa searched the rooftop of Sammy’s Liquor because surveillance video showed
defendant throwing an object on to the roof. He found a black folding knife.
Defendant fled the scene after the fight. He called police on his cell phone and
reported that he had been robbed. LAPD Officer Edward Jimenez found defendant at the
corner of 7th Avenue and 36th Street, being treated by paramedics. This location is three
blocks from Sammy’s Liquor Store and the laundromat. Defendant claimed he had been
attacked by several individuals and robbed. Defendant told Officer Jimenez the men
drove up to him in a car, got out, asked him where he was from, and hit him on the head
with an object, causing him to fall to the ground. One of them took his backpack, and
they all fled. Defendant said the robbery occurred in the area of 7th Avenue and 36th
Street. Defendant said nothing about the fight he had been involved in with Luigi and
Bustamante in the area of 9th and Jefferson, nor did he say that he had had to stab a man
out of fear for his safety. Officer Jimenez did not find any evidence to substantiate
defendant’s robbery claim.
Detective Ochoa, who helped investigate the stabbings of Luigi and Bustamante,
later questioned defendant at the police station. A recording of the interview was played
for the jury. In his statement to Detective Ochoa, defendant claimed that he initially told
police that he had been robbed because he was confused. Defendant claimed that Luigi
and two other men approached him, and Luigi stated that he was from “18th Street.”
Luigi asked defendant what he had in his pockets. Defendant said he started backing
away from Luigi. Another man came up behind defendant, causing defendant to back up
into the street. Defendant saw a hammer and pulled out his knife. The men backed up,
but then began hitting him.
When asked by Detective Ochoa, defendant could not explain how Luigi and
Bustamante suffered stab wounds. Detective Ochoa testified that defendant’s account
was not consistent with the surveillance video. That video did not show a man coming
up behind defendant and did not show defendant backing into the street. Detective
Ochoa told the jury that defendant did not mention his earlier fight with Gonzalez until
Detective Ochoa confronted him with it.
6
Detective Ochoa also testified that defendant denied taking Gonzalez’s bicycle or
even knowing that the bicycle was taken. Detective Ochoa noted that the video footage
showed defendant place his hand on the back of the bicycle as Wilmer rode it away.
C. The Defense Case
Defendant testified in his own defense at trial. He explained that he had been
friends with Gonzalez at one point, but they had a falling out. Weeks before he fought
Gonzalez outside the laundromat, defendant heard that Gonzalez intended to beat him up.
When defendant saw Gonzalez at the laundromat on August 25, 2013, he ran up to
Gonzalez and started fighting. Neither man said anything. Wilmer joined in, and when
Gonzalez was on the ground, defendant stomped on and kicked his head. Wilmer and
defendant walked away. Defendant then walked back to Gonzalez and kicked him
because he had said something. Defendant was really mad at Gonzalez. Defendant
claimed he didn’t know that anyone took Gonzalez’s bicycle until he saw the surveillance
video at trial.
After the fight, defendant was walking with Wilmer when he noticed a group of
men had been watching the fight from the liquor store. The men asked him what had
happened. Bustamante, who was in the group of men, asked defendant where he was
from. Defendant replied that he did not “gang-bang.” Bustamante claimed “18th Street.”
Defendant replied, “Cool” and shook hands with Bustamante.
At some point thereafter, Luigi asked defendant to give him whatever he had in his
pockets. Defendant refused. He stepped out into the street, and started walking forward
while Luigi backed up. Defendant believed there was someone behind him so he
continued toward the street. In the middle of the street, Luigi got into a “fight stance”
and defendant did the same. Luigi started swinging at defendant, and they began
fighting.
Defendant felt something hit him in the head, and turned and saw Bustamante with
a hammer. Bustamante hit defendant in the face with the hammer. Defendant was afraid
“they were going to do something really bad to [him] to a point where [he] was going to
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die” and took out his knife. Luigi continued punching defendant, so he started moving
his knife (the trial judge described the movement defendant made in court as “slashing”).
Bustamante was also hitting defendant, and defendant fell to the ground. One man held
him down while another man hit him. Defendant continued swinging his knife until he
was able to break free. He then fled.
As he left the area of the laundromat, defendant was afraid and did not want to go
to jail. He got rid of the knife by throwing it. He called 911 because he needed an
ambulance. At the hospital, defendant received 14 stitches to his right eyebrow area and
staples in the back of his head. He was in pain, weak, and scared.
He did not tell the police about throwing the knife onto the roof because he did not
remember doing it. He did not tell the police that he had stabbed anyone because he did
not know that he stabbed anyone. He did not remember and could not explain how he
ended up stabbing Luigi six times or Bustamante five times. Defendant denied being a
tagger.
Defendant also offered the testimony of toxicologist Dr. Rody Predescu, who
stated that Luigi had alcohol and methamphetamine in his blood. Dr. Predescu opined
that Luigi’s blood alcohol level would have made him intoxicated and impaired. The
level of methamphetamine in Luigi’s blood was low, but might have caused aggressive
and violent behavior. In addition, defendant offered the testimony of criminalist Kenneth
Moses that if the hammer had been used as a weapon, “some degree of force” was needed
to break it.
D. Conviction
The jury convicted defendant on all counts: the count 1 first degree murder of
Luigi in violation of Penal Code section 187;2 the count 2 willful, deliberate, and
premeditated attempted murder of Bustamante in violation of sections 187 and 664,
subdivision (a); the count 3 assault of Gonzalez in violation of section 245, subdivision
2
Undesignated statutory references that follow are to the Penal Code.
8
(a)(4); and the count 4 robbery of Gonzalez in violation of section 211. The jury also
found true the allegations that defendant personally used a deadly and dangerous weapon
in the commission of the murder and attempted murder and personally inflicted great
bodily injury in the commission of counts 2 though 4. The trial court sentenced
defendant to a term of 26 years to life on the murder conviction, life in prison with the
possibility of parole plus 4 years on the attempted murder conviction, 1 year for the
assault conviction, and 8 years for the robbery conviction.
DISCUSSION
Defendant contends the trial court abused its discretion in denying his motion to
sever trial of the counts charging the assault and robbery of Gonzalez from the counts
charging murder and attempted murder. He argues the evidence of guilt concerning the
assault was stronger and, in his view, unfairly prejudiced his defense to the other charges.
Defendant also contends the evidence is insufficient to support his robbery conviction
because it shows he assaulted Gonzalez for personal reasons and formed an intent to rob
Gonzalez, if at all, only after the use of force or fear had finished. Defendant further
contends the evidence of self-defense is so overwhelming that the murder and attempted
murder convictions must be reversed. Finally, he argues there is no evidence that he
acted with premeditation and deliberation in murdering Luigi and attempting to murder
Bustamante, and so the jury’s finding that the murder was in the first degree and the
attempted murder was willful, premeditated, and deliberate must be reversed. We reject
defendant’s contentions and affirm the judgment.
I.
Denial of Motion to Sever
A. Trial Court’s Ruling
Defendant moved to sever the assault and robbery charges on the grounds: (1) that
the offenses were unconnected in their commission; (2) that the offenses were not of the
9
same class; and (3) joinder of the trial would unduly prejudice appellant. The
prosecution opposed the motion.
The motion to sever was heard on November 17, 2014. The court ruled: “I’m
going to deny the motion to sever in this matter. I believe the case meets the
requirements of [the] People versus Williams case3 and the elements, evidence is cross-
admissible, and in the court’s judgment based upon what I have read and I simply believe
it meets the prongs that are required for these matters to be heard in the same trial.”
B. Analysis
Section 954 provides in pertinent part: “An accusatory pleading may charge two
or more different offenses connected together in their commission, or different statements
of the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . .” Robbery, assault, attempted murder, and murder
involve the common element of assault, and so belong to the same class of crime. (See
People v. Musselwhite (1998) 17 Cal.4th 1216, 1243 [robbery and murder are same class
of crime].)4
The law prefers consolidation of charges. (Alcala v. Superior Court (2008) 43
Cal.4th 1205, 1220.) Because the charges here involve offenses of the same class, “‘the
statutory requirements for joinder were satisfied,’ and defendant ‘can predicate error in
3
It appears the trial court was referring to Williams v. Superior Court (1984) 36
Cal.3d 441, superseded by statute on other grounds as stated in Alcala v. Superior Court
(2008) 43 Cal.4th 1205, 1229, fn 19.
4
The offenses in this case are arguably connected in their commission as well. The
events occurred very close together in time and location. According to defendant’s trial
testimony, after the fight with Gonzalez, defendant noticed a group of men who had been
watching the fight. They asked him what had happened. Defendant replied that
Gonzalez had been “running his mouth.” Bustamante then asked defendant where he was
from; defendant testified that such a question means the questioner wants to know if
you’re from a gang and “want[s] to know why you’re on their turf, basically.” Then, the
fighting started.
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denying the motion only on a clear showing of potential prejudice. [Citation.] We
review the trial court’s ruling on the severance motion for abuse of discretion.’ (People
v. Kraft (2000) 23 Cal.4th 978, 1030; see People v. Soper (2009) 45 Cal.4th 759, 773-
774.)” (People v. Vines (2011) 51 Cal.4th 830, 854-855.)
“‘“‘“The burden is on the party seeking severance to clearly establish that there is
a substantial danger of prejudice requiring that the charges be separately tried.”
[Citation.] [¶] “The determination of prejudice is necessarily dependent on the particular
circumstances of each individual case, but certain criteria have emerged to provide
guidance in ruling upon and reviewing a motion to sever trial.” [Citation.] Refusal to
sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried
would not be cross-admissible in separate trials; (2) certain of the charges are unusually
likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a
“strong” case, or with another “weak” case, so that the “spillover” effect of aggregate
evidence on several charges might well alter the outcome of some or all of the charges;
and (4) any one of the charges carries the death penalty or joinder of them turns the
matter into a capital case. [Citations.]’”’ (People v. Kraft, supra, 23 Cal.4th at p. 1030,
quoting People v. Bradford (1997) 15 Cal.4th 1229; see also People v. Soper, supra, 45
Cal.4th at pp. 774-775.)” (People v. Vines, supra, 51 Cal.4th at p. 855.)
If the “evidence on each of the joined charges would have been admissible, under
Evidence Code section 1101, in separate trials on the others . . . any inference of
prejudice is dispelled.”5 (People v. Vines, supra, 51 Cal.4th at p. 855.)
5
Evidence Code section 1101, subdivision (a) “prohibits admission of evidence of a
person’s character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion.”
(People v. Ewoldt (1994) 7 Cal.4th 380, 393.) “[T]his rule does not prohibit admission of
evidence of uncharged misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition.” (Ibid., fn. omitted.) Evidence Code
section 1101, subdivision (b) provides that nothing in that section “prohibits the
admission of evidence that a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
11
Here, defendant told Gonzalez at the start of the assault that he was lucky that
defendant did not “shank” him, meaning stab him. At the time defendant made the
statement, he was carrying a knife in his pocket. Thus, the assault on Gonzalez was
relevant and admissible to show that defendant possessed the knife before his encounter
with Luigi and Bustamante, and did so for an offensive purpose. It is indicative of
defendant’s state of mind when he approached Luigi and Bustamante, and shows that
defendant was prepared for a violent encounter. It is also relevant to show the absence of
mistake or accident. Although defendant attempted to minimize his use of the knife
during the encounter by demonstrating that he used slashing motions and claiming that he
did not know how Luigi suffered the stab wounds, defendant’s statement to Gonzalez
shows that he was aware of and had considered his knife’s potential to inflict serious
injury by “shanking.”
“Moreover, even if the evidence underlying these charges would not be cross-
admissible in hypothetical separate trials, that determination would not itself establish
prejudice or an abuse of discretion by the trial court in declining to sever properly joined
charges.” (People v. Soper (2009) 45 Cal.4th 759, 775.) If the evidence would not be
cross-admissible, we consider two additional factors to determine if there is any possible
spill-over effect of the “other-crimes” evidence: “(1) whether some of the charges are
particularly likely to inflame the jury against the defendant; (2) whether a weak case has
been joined with a strong case or another weak case so that the totality of the evidence
may alter the outcome as to some or all of the charges . . . .” (Ibid.)6
In this case, the relevant factors do not show any possible “spill-over” effect from
the robbery and assault charges. Robbery and assault are less serious offenses than
attempted murder and murder, and so are not crimes particularly likely to inflame the jury
knowledge, identity, absence of mistake or accident . . .) other than his or her disposition
to commit such an act.”
6
A third factor considers whether a capital offense is charged. This was not a
capital case.
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against defendant. Further, defendant did not use a weapon in the commission of the
assault, but did use a knife in the commission of the murder and attempted murder
making it even more unlikely the assault charge would inflame the jury against
defendant.
Nor was a weak case joined with a strong case. Because defendant essentially
admitted the assault on Gonzalez, evidence on that charge was strong. However, the
evidence on the murder and attempted murder charges was strong as well. Three
witnesses described defendant’s attack on Luigi, Bustamante’s intervention, and
defendant’s attack on Bustamante. It was undisputed that defendant had and used a knife
during the fight with Luigi and Bustamante. Defendant’s self-defense theory, on the
other hand, was weak. No weapon was found on or near Luigi’s body. The surveillance
video contradicted a number of defendant’s claims about how the fight progressed and
undermined his self-defense claim.7 There was no clear showing of potential prejudice
from the joinder of the charges. The jury was properly instructed that each of the counts
charged was a separate crime that the jury was required to consider separately. The trial
court did not abuse its discretion in denying the motion to sever.
II.
Sufficiency of the Evidence to Support the Robbery Conviction
A. Standard of Review
“‘“[W]e review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
7
The video showed defendant as an aggressor at the beginning of the fight, when he
advanced toward Luigi, who kept retreating. It again showed defendant as an aggressor
after Bustamante joined the fight; defendant backed up, then charged forward at
Bustamante with a kick.
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fact could have found the essential elements of the crime beyond a reasonable doubt.”
[Citation.] In so doing, a reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.”
[Citation.]’” (People v. Williams (2015) 61 Cal.4th 1244, 1281.)
“The standard of review is the same in cases in which the People rely mainly on
circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury, not the appellate
court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If
the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.’”’” (People v. Stanley
(1995) 10 Cal.4th 764, 792-793; see People v. Nelson (2011) 51 Cal.4th 198, 210.)
B. Applicable Law
“Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) Robbery is a specific intent crime. The jury was instructed that
“[t]he defendant’s intent to take the property must have been formed before or during the
time [he] used force or fear” and that “[a] person takes something when he or she gains
possession of it and moves it some distance.” (CALCRIM No. 1600; see People v.
Gomez (2008) 43 Cal.4th 249, 254 [“taking” for robbery includes both achieving
possession of the property and carrying away the property].) The jury was also instructed
that “[t]o be guilty of robbery as an aider and abettor, the defendant must have formed the
intent to aid and abet the commission of the robbery before or while a perpetrator carried
away the property to a place of temporary safety.” (CALCRIM No. 1603; see People v.
Gomez, supra, at p. 254; People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166.)
There is no requirement that a robbery victim be aware that his property is being
taken by force or fear. (People v. Jackson (2005) 128 Cal.App.4th 1326, 1330-1331.)
14
The victim “may be unconscious or even dead when property is taken . . . .” (Id. at p.
1330.)
C. Evidence Supporting the Verdict
Here, there is sufficient circumstantial evidence to permit a rational trier of fact to
find defendant guilty of robbery beyond a reasonable doubt. Wilmer’s action of going
straight to the bicycle upon his return supports an inference that he intended to steal the
bicycle. Defendant, who had previously hit and kicked Gonzalez, went to stand over
Gonzalez while Wilmer got the bicycle. The men’s actions support an inference of
planning. It appears that defendant again kicked Gonzalez while Wilmer was getting the
bicycle. The jury could reasonably have inferred that the kick was intended to keep
Gonzalez on the ground while Wilmer got the bicycle; even without the kick, the jury
could infer that defendant’s presence alone was intended to instill fear in Gonzalez and
keep him on the ground, given the beating which defendant had just inflicted. The law
does not require that Gonzalez be aware of defendant’s reason for instilling fear. Further,
as defendant and Wilmer were walking away with the bicycle, defendant returned and
kicked Gonzalez again, and the jury could reasonably infer the kick was intended to
assure Gonzalez would not prevent defendant and Wilmer from taking the bicycle.
Even if defendant did not know that Wilmer was planning to take the bicycle until
Wilmer brought it to where defendant was standing, there is still sufficient circumstantial
evidence to support the conviction under an aiding and abetting theory. An aider and
abettor may form the specific intent to aid the perpetrator “while [the] perpetrator carried
away the property to a place of temporary safety.” (CALCRIM No. 1603.) When
Wilmer came over to Gonzalez, Wilmer was in the process of taking the bicycle to a
place of safety. Defendant touched the seat of the bicycle and began to walk away with
Wilmer. As we have explained, defendant’s return to kick Gonzalez supports a
reasonable inference that defendant intended to prevent Gonzalez from interfering with
the taking.
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III.
Sufficiency of the Evidence – Murder and Attempted Murder
Defendant contends the evidence is insufficient to support the murder and
attempted murder convictions because the evidence of self-defense was overwhelming
and the prosecution failed to meet its burden of proving the killing was not done in self-
defense. He further contends that even if the evidence was sufficient to show murder and
attempted murder, it is insufficient to show the deliberation and premeditation necessary
for a first degree murder conviction, and to support the jury’s finding that the attempted
murder was willful, deliberate, and premeditated. We review defendant’s claim in
accordance with the principles set forth in People v. Williams, supra, 61 Cal.4th at p.
1281 and People v. Stanley, supra, 10 Cal.4th at pp. 792-793, as set forth in detail ante.
A. Evidence of Self-Defense
As the jury was instructed, a defendant acts in self-defense if he reasonably
believes that he is in imminent danger of being killed or suffering great bodily injury and
that the immediate use of deadly force is necessary to defend against that danger. A
defendant acts in “imperfect” self-defense if he actually believes that he is in imminent
danger and that the use of deadly force is necessary, but one of those beliefs is
unreasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The People have the
burden of proving beyond a reasonable doubt that the defendant did not act in perfect or
imperfect self-defense. (People v. Rios (2000) 23 Cal.4th 450, 454 [where murder
liability at issue, the People must prove absence of a belief in the need for self-defense];
People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168 [self-defense]; CALCRIM Nos.
505, 571.)
Defendant’s testimony is evidence that he acted in some form of self-defense.
According to defendant, Luigi and Bustamante tried to rob him. When he refused to
hand over his property, Luigi attacked him and Bustamante hit him with a hammer.
Defendant then used his knife to defend himself. However, a rational trier of fact could
have disbelieved defendant’s account of events and instead believed the testimony of
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Bustamante and Torres, which was corroborated at least in part by the video surveillance
footage.
Bustamante testified that defendant began a gang-related argument with Luigi, and
almost immediately pulled out a knife and began punching Luigi. Bustamante then
intervened to try to separate the two men, and used his belt to try to deflect the knife.
Defendant stabbed Bustamante repeatedly and then stabbed Luigi repeatedly and fatally.
The liquor store video was consistent with Bustamante’s account and inconsistent with
defendant’s account; it showed defendant walking toward Luigi with raised hands while
Luigi backed away. Torres’s account also portrayed defendant as the aggressor with the
knife. Tafoya specifically testified that Luigi did not fight back.
In addition to Bustamante and Torres’s account of events, defendant’s behavior
after the altercation called defendant’s claim of self-defense into question. Surveillance
video showed defendant throwing an object onto the roof of the laundromat; a knife was
later found there. Defendant did call 911 and reported that he was the victim of a
robbery, but he did not make a claim of self-defense to the investigating officer or
mention a knife or a stabbing. He gave the officer a false location for the supposed
robbery. These actions were consistent with consciousness of guilt.
Bustamante and Torres’s testimony, together with evidence of defendant’s
behavior after the stabbings, is more than sufficient evidence from which a rational trier
could find that the prosecution proved beyond a reasonable doubt defendant did not act in
any form of self-defense. Even if the evidence might also “reasonably be reconciled with
a contrary finding” that defendant did act in self-defense, reversal would not be
warranted. (People v. Stanley, supra, 10 Cal.4th at pp. 792-793.)
B. Premeditation and Deliberation
For purposes of determining whether sufficient evidence of premeditation and
deliberation exists, there is no distinction between attempted murder and completed
murder. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8, disapproved on
another ground by People v. Mesa (2012) 54 Cal.4th 191.)
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In People v. Anderson (1968) 70 Cal.2d 15, the court identified three categories of
evidence typically considered when determining if a defendant acted with premeditation
and deliberation: planning activity, motive, and the manner of killing. (Id. at pp. 26-27.)
“Anderson does not require that these factors be present in some special combination or
that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply
intended to guide an appellate court’s assessment whether the evidence supports an
inference that the killing occurred as the result of preexisting reflection rather than
unconsidered or rash impulse. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)” (People
v. Pride (1992) 3 Cal.4th 195, 247.) Premeditation and deliberation can take place in a
brief period of time. “‘“The test is not time, but reflection. ‘Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly.’”’”
(People v. Osband (1996) 13 Cal.4th 622, 697.)
Here, there is some evidence of all three Anderson factors. The evidence
permitted the jury to infer that defendant had a motive, or possibly two motives, for
killing Luigi and attempting to kill Bustamante. One motive was gang/tagging crew
related. Defendant was seen tagging a wall in the area of the laundromat before he
assaulted Gonzalez. After attacking Gonzalez, defendant approached Luigi and asked
him where he was from, which was understood as an inquiry into Luigi’s gang affiliation.
According to Tafoya, defendant “claimed his hood” and said “this is my area.”
According to Bustamante, defendant “banged on” Luigi and claimed his tagging crew.
This exchange supports an inference that gang or tagging crew animosity was the motive
for defendant to kill the two men. In addition, there was evidence at trial of another
motive defendant had to kill Luigi and Bustamante: both men saw defendant beating and
robbing Gonzalez. The jury could infer he wanted to eliminate them as witnesses.
(People v. Caro (1988) 46 Cal.3d 1035, 1050, overruled on another ground by People v.
Whitt (1990) 51 Cal.3d 620, 657, fn. 29 [no evidence of prior relationship, but jury could
reasonably infer defendant killed victim because she was an actual or potential witness to
kidnapping].)
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Relevant to planning, defendant approached the men to initiate the gang-related
exchange and, according to Bustamante, defendant almost immediately pulled a knife and
began using it. This supports an inference that defendant planned to attack Luigi if he did
not give the response defendant wanted, or that defendant did not expect a satisfactory
response. Defendant’s act of confronting Luigi with his knife at the ready, particularly in
light of the motive evidence, supports an inference that he planned to use the knife
against Luigi as part of a premeditated intent to kill. When Bustamante came to Luigi’s
aid, defendant immediately turned his knife on Bustamante.
The manner of the stabbing supports an inference that defendant intended to use
the knife to kill Luigi and Bustamante. He stabbed Luigi through the heart, an almost
instantly fatal blow. He stabbed Bustamante in various areas of the head, and sliced open
Bustamante’s ear. Both attacks targeted areas of the body where a knife wound can be
fatal. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 [firing at a vital area at close
range supports finding of premeditation and deliberation]; see People v. Cruz (1980) 26
Cal.3d 233, 245; see also People v. Hovey (1988) 44 Cal.3d 543, 556.)
This evidence of motive, planning, and manner of killing supports an inference
that the killing and attempted killing were the result of preexisting reflection. There is
substantial evidence from which a rational trier of fact could find defendant guilty
beyond a reasonable doubt of first degree murder and willful, deliberate, and
premeditated attempted murder. Even if the evidence might also “reasonably be
reconciled with a contrary finding,” reversal would not be warranted. (People v. Stanley,
supra, 10 Cal.4th at pp. 792-793.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
TURNER, P.J.
KRIEGLER, J.
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