People v. Buenrostro CA4/3

Filed 9/14/21 P. v. Buenrostro CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058813
v. (Super. Ct. No. 18CF0617)
VICTOR BUENROSTRO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Patrick
Donahue, Judge. Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and
Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Victor Buenrostro shot a man during a dispute over a bicycle.
Following a jury trial, he was acquitted of attempted murder but found guilty of assault
with a firearm, attempted robbery and other crimes. He now contends 1) the robbery
conviction must be reversed because he did not attempt to take the victim’s property by
force or fear, 2) the introduction of DNA evidence linking him to the shooting violated
his confrontation rights, and 3) the abstract of judgment does not accurately reflect
certain fees the trial court ordered him to pay. Finding these contentions unavailing, we
affirm the judgment.
FACTS
Around 10:45 p.m. one evening, Maria L. and Goly T. were standing by
Maria’s car in the parking lot of a Santa Ana strip mall. A homeless man named Ricardo
was sitting nearby, under a tree, and his bicycle was leaning up against a van on the other
side of the parking lot. Appellant was over by the bike, seemingly oblivious to Ricardo.
But when appellant got on the bike, Ricardo called out “Hey, that’s my bike” and started
hurrying toward him.
Appellant responded by getting off the bike, pulling out a gun and pointing
it at Ricardo. Seeing the gun, Maria and Goly ducked behind Maria’s car. From that
vantage point, Maria could see Ricardo and appellant fighting. They went at it for about
20 seconds before the gun went off and Ricardo fell to the ground.
Appellant fled the scene, without the bike. Maria and Goly ran into a
nearby building, and when they returned to the scene a few minutes later, they saw
Ricardo lying on top of the gun. He survived the single gunshot wound to his chest, but
he was unavailable for trial.
Because the parking lot was dimly lit Maria and Goly did not get a clear
look at appellant. When the police showed them a six-pack lineup containing appellant’s
photograph, Maria said appellant and one of the other men pictured resembled the person
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who shot Ricardo. However, Goly was unable to identify anyone from the lineup, and at
trial, neither she nor Maria could identify appellant as the shooter.
The prosecution therefore relied on forensic evidence to prove its case.
Based on testing conducted at the Orange County Crime Lab (OCCL), the state
connected appellant to the shooting by establishing his DNA was found on the gun used
to shoot Ricardo.
Appellant did not testify or present any evidence on his own behalf.
Although the jury acquitted him of attempted murder, it found him guilty of assault with
a firearm, attempted robbery and two other gun-related offenses. It also found he
inflicted great bodily injury on Ricardo with a firearm. Because appellant was a repeat
offender, the trial court sentenced him to 28 years in prison for his crimes.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support the jury’s
finding he committed attempted robbery because he gained possession of Ricardo’s
bicycle without using force or fear, and he did not shoot Ricardo until he had already
abandoned the bike. However, applying the rules applicable to inchoate offenses, we find
there is enough evidence to support appellant’s conviction for attempted robbery.
The standard of review for assessing the sufficiency of the evidence to
support a criminal conviction is “highly deferential.” (People v. Lochtefeld (2000) 77
Cal.App.4th 533, 538.) Our task is to “review the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence . . . from
which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) In so doing, we do not
reweigh the evidence that was adduced at trial; rather, “[w]e presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
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reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.]” (Ibid.) “The conviction
shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [it].”’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th
500, 508.)
In California, a robbery occurs when the defendant takes personal property
from a person or from his immediate presence by means of force or fear with the intent to
permanently deprive the person of that property. (Pen. Code, § 211; People v. Marshall
(1997) 15 Cal.4th 1, 34.) As so defined, a robbery cannot occur unless the victim is
actually deprived of his property. However, a person may be convicted of attempting to
commit a crime even if the intended crime was not actually committed. (People v.
Chandler (2014) 60 Cal.4th 508, 517.) All the law requires for an attempt is the intent to
commit the crime and a direct act aimed toward its commission. (People v. Davis (2009)
46 Cal.4th 539, 606.) The requisite intent “‘may be, and usually must be, inferred from
circumstantial evidence.’ [Citation.]” (Ibid.)
In this case, the subject property – Ricardo’s bicycle – was leaning against
a van in a dimly lit parking lot late at night when appellant approached it. Because
Ricardo was not in the immediate vicinity, appellant had ready access to the bike and did
not encounter any resistance taking control of it. Thus, from appellant’s perspective, the
bike appeared to be an easy target for pilferage. While it is certainly possible he was just
checking out the bike or had some other innocent purpose in mind, his actions suggest
otherwise. When Ricardo approached him and told him the bike was his, appellant did
not ask for Ricardo’s permission to ride the bike or accede to Ricardo’s claim of
ownership. He did not suggest some innocent explanation for starting to ride the bike.
Instead, he pulled his gun, fought Ricardo and shot him in the chest. This could certainly
be understood as an indication appellant was fully prepared to counter any resistance
from the bike’s owner. Even though appellant did not make off with the bike in the end,
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the circumstances of the encounter were such that the jury could reasonably conclude he
intended to steal it.
So, too, could the jury reasonably find appellant’s actions went beyond
mere preparation in an effort to put his plan into action, which is the second requirement
for an attempted offense. (People v. Watkins (2012) 55 Cal.4th 999, 1021; People v.
Lopez (2020) 46 Cal.App.5th 505, 515.) In fact, by getting onto the bike without
Ricardo’s permission and using deadly force to resist Ricardo’s effort to reclaim it,
appellant completed every step of the robbery except the final act of taking the property
away. This was sufficient to prove he committed a direct act toward the commission of
that offense. (See People v. Dillon (1983) 34 Cal.3d 441, 455-456 [having arrived at the
victim’s marijuana farm with a group of armed cohorts, defendant committed the
requisite acts to support his conviction for attempted robbery, even though he did not
actually set foot on the targeted marijuana field]; People v. Anderson (1934) 1 Cal.2d
687, 690 [defendant’s act of brandishing a firearm in close proximity to a theatre’s ticket
window was sufficient to support his conviction for attempted robbery].)
It is true appellant got off the bike when Ricardo approached him and
before he employed his weapon. Appellant contends this shows he abandoned the theft
prior to the use of force or fear, thus negating his culpability. In particular, he argues this
“act of abandonment completed and ended the theft, and the subsequent use of force
could not complete a robbery. Our Supreme Court has been clear: robbery is the use of
force or fear to accomplish a theft. [Citations.] If a theft is not being accomplished (if no
caption or asportation is occurring) then there is [no] ongoing theft to aggravate into
robbery.”
However, appellant was not convicted of a completed robbery, he was
convicted of attempted robbery. The law is well established that “once an intent to
commit a crime has been formed and overt acts toward the commission of that crime
have been committed by a defendant he is then guilty of an attempt,” regardless of
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whether he subsequently abandons his plan before completion. (People v. Robinson
(1960) 180 Cal.App.2d 745, 751; People v. Staples (1970) 6 Cal.App.3d 61, 69.) In other
words, “subsequent events tending to show . . . abandonment are irrelevant once the
requisite intent and act are proved.” (People v. Dillon, supra, 34 Cal.3d at p. 454.)
Here, the jury could reasonably find appellant harbored the requisite intent
to commit robbery and took a direct step toward the commission of that offense by
getting onto Ricardo’s bike while armed with a firearm. It is immaterial whether he
abandoned his plan to commit the robbery after that point.
Moreover, it is questionable whether appellant actually abandoned his plan
to commit the robbery by getting off Ricardo’s bike. The impetus for that action did not
emanate from appellant. Rather, appellant got off the bike because Ricardo asserted it
was his and came toward him in the parking lot. Appellant then used deadly force to
prevent Ricardo from taking his bike back. Under these circumstances, the jury could
reasonably conclude appellant got off the bike just to give him access to the firearm and
was therefore guilty of attempted robbery, even though he left the bike behind after the
shooting. That’s how we would have seen it.
Sixth Amendment Claim
Appellant also contends his Sixth Amendment confrontation rights were
violated because he did not have the opportunity to cross-examine every single person
who was involved in the DNA testing that connected him to the shooting. We cannot
agree.
Before trial, the prosecution moved to admit evidence regarding the DNA
testing that was conducted in this case. Although the prosecution recognized that several
different analysts may have been involved in the testing process, it intended to only call
the lead analyst, Chantel Callahan, to convey the results of that testing. Defense counsel
objected to this procedure; she wanted the opportunity to cross-examine everyone who
was involved in the testing process. However, the trial court determined that was
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unnecessary. It ruled Callahan’s availability at trial was sufficient to safeguard
appellant’s confrontation rights, so long as she was qualified to review and interpret the
testing results, and she only conveyed her own personal opinions, not the opinions of
others.
At trial, Callahan testified she has worked as a forensic scientist in the
OCCL for over seven years and is familiar with every aspect of the DNA testing process
that was conducted in this case. She also said that every step of that process was
documented for recordkeeping purposes, and there were multiple levels of review
conducted to ensure the testing was carried out in accordance with principles that are
generally accepted in the scientific community.
Speaking to the testing that was conducted in this case, Callahan explained
that when she received the DNA swabs the police collected from the gun used to shoot
Ricardo, she examined them and noticed nothing unusual about how they were sealed or
packaged. She then went through the process of extracting DNA from the swabs,
creating profiles of the DNA and comparing those profiles to appellant’s DNA. Based on
her analysis of the data, she determined DNA collected from the hammer and trigger of
the gun matched appellant’s DNA. She said the odds the gun DNA belonged to someone
else were about a trillion to one.
During her testimony, Callahan acknowledged that other forensic scientists
at the OCCL assisted her in the testing process. However, as the case manager, she was
responsible for overseeing the process and interpreting the data the testing produced. She
was also personally involved in the testing and authored some of the reports that were
generated during the testing process. As for the reports Callahan did not personally
prepare, she said they were made by fully-qualified scientists, and their findings
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comported with the testing she observed.
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None of the test reports were actually admitted into evidence, but Callahan was allowed to refer to
her own reports to refresh her memory about the testing.
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The Sixth Amendment to the United States Constitution guarantees
criminal defendants the right “to be confronted with the witnesses against him[.]” (U.S.
Const., 6th Amend.) As interpreted by the United States Supreme Court, this guarantee
bars the admission of testimonial hearsay at trial unless the declarant is unavailable and
the defendant had a prior opportunity for cross-examination. (Crawford v. Washington
(2004) 541 U.S. 36.) Thus, an expert witness generally may not reveal the results of
scientific testing intended to incriminate the defendant if he or she was not personally
involved in the testing process. (Bullcoming v. New Mexico (2011) 564 U.S. 647; People
v. Ogaz (2020) 53 Cal.App.5th 280.) However, the Confrontation Clause does not
preclude an expert witness from revealing the results of his own testing, or rendering his
own independent opinions based on testing that was performed by others. (People v.
Lopez (2012) 55 Cal.4th 569, 587 [conc. opn. of Werdegar, J.]; People v. Barba (2013)
215 Cal.App.4th 712; People v. Steppe (2013) 213 Cal.App.4th 1116; People v. Huynh
(2012) 212 Cal.App.4th 285; People v. Holmes (2012) 212 Cal.App.4th 431.)
In this case, Callahan had first-hand personal knowledge of the testing
information she revealed to the jury. We know that because during her testimony she
used the first person “I” to describe the various aspects of the testing process she was
involved in. For example, she said, “I examined” the swabs taken from the gun, “I
excised each swab and . . . prepared them for the DNA extraction process,” “I was able
to” create a DNA profile from the swabs, and “I did the comparison” between that profile
and appellant’s profile and determined that they matched. At another point during her
testimony, Callahan stated that, as the case manager, “I’m the analyst that decides which
samples will be tested” and “I’m responsible for the interpretation” of that testing. She
also made clear she personally prepared some of the reports generated during the testing.
That being the case, she was able to answer appellant’s questions on cross-examination
about how the testing process was conducted, what results it yielded, and how those
results were interpreted.
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Callahan acknowledged she did have some assistance during the testing
process from her colleagues at the OCCL. However, in speaking to that aspect of the
testing, Callahan used the term “we” to describe what testing was conducted and what the
testing produced. This usage reflects Callahan’s personal involvement in the testing
process, as well her personal knowledge of what her colleagues discovered. At no point
did she purport to reveal any information that was solely within the ken of her assistants.
Because the record reveals Callahan was actively involved in every aspect of the testing
process and gave her own independent opinions about what the testing revealed there was
no violation of appellant’s confrontation rights.
Sentencing Issue
Lastly, appellant contends the abstract of judgment does not accurately
reflect the trial court’s oral pronouncement of judgment with respect to the imposition of
certain fees. Again, we disagree.
At sentencing, the trial court stated, “$30 and $40 court conviction fees will
be imposed.” Appellant takes that to mean the trial court ordered him to pay only one
$30 criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)), and one $40 court
security fee (Pen. Code, § 1465.8). Even though both of those fees are mandatory as to
each count of conviction (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484),
appellant assumes the court struck them on the other three counts pursuant to People v.
Duenas (2019) 30 Cal.App.5th 1157 because he lacked the ability to pay them.
However, appellant did not make a Duenas motion at sentencing, nor did
the trial court say anything about his ability to pay in imposing the fees. Indeed, there is
nothing in the record to support appellant’s claim the trial court intended to impose the
subject fees on but a single count. As such, we presume the trial court followed the
dictates of the law and imposed them as to each count. (People v. Ramirez (2021) 10
Cal.5th 983, 1042; People v. Brown (2007) 147 Cal.App.4th 1213, 1228–1229.) Because
the abstract of judgment reflects as much, it does not need correction or modification.
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DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
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