People v. Villalobos, 04CA0552.

• Citation: 159 P.3d 624
• Decision Date: 20 April 2006
• Docket Number: No. 04CA0552.,04CA0552.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Fernando J. VILLALOBOS, Defendant-Appellant.
• Court: Court of Appeals of Colorado

159 P.3d 624

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Fernando J. VILLALOBOS, Defendant-Appellant.

No. 04CA0552.

Colorado Court of Appeals, Div. I.

April 20, 2006.

Rehearing Denied June 1, 2006.^*

Certiorari Denied October 7, 2006.

John W. Suthers, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Samler and Whitson, P.C., Eric A. Samler, Denver, Colorado, for Defendant-Appellant.

DAILEY, J.

Defendant, Fernando J. Villalobos, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree felony murder. We affirm.

Owing $5000 to his supplier, drug dealer Leroy Deschawn Bachicha devised a plan to "rip-off" the victim by selling him ten pounds of fake marijuana. Bachicha was nineteen, the victim eighteen, years old.

According to Bachicha, the thirty-three-year-old defendant inserted himself into the plan. Defendant arrived at the house where Bachicha and others were making bricks of fake marijuana. Defendant produced a bag, into which Bachicha placed the false marijuana bricks, and told Bachicha to bring a gun. Defendant, who was already armed with a gun, told Bachicha, "[I]f something goes down, I'm going to kill someone. I'll shoot them, cop or not."

According to Bachicha, defendant insisted that he change the place at which he was to meet the victim to a more remote area. Defendant then drove Bachicha to the rearranged meeting place. Defendant instructed Bachicha to move from the front passenger seat into the right rear passenger seat. Defendant then placed his handgun between his body and the driver's side door of the vehicle.

When the victim arrived, he got into the vehicle, greeted Bachicha, and introduced himself to defendant. After the victim handed defendant the money, the three men went for a short ride. Defendant parked the car in an alley, where the three men listened to music and drank tequila.

According to a statement defendant reportedly made later to another person, at some point the victim started acting "paranoid and nervous." Bachicha related that defendant pulled out his gun, said to the victim, "Check this out," and, pointing the gun at the victim, said, "Now what, bitch." As the victim reached for the door, defendant shot him in the side of the head, just below the left ear. The victim died from this wound.

Bachicha testified that he and defendant gathered items from the car and ran from the scene. Defendant parted from Bachicha to enter the house of a mutual acquaintance through a window. Minutes later, the police arrested Bachicha.

Bachicha's mother testified that Bachicha had telephoned her right after the shooting and before he was arrested. He was, she said, crying hysterically as he related that defendant had shot and killed the victim.

A search of the crime scene and the area between it and the place where Bachicha was arrested uncovered Bachicha's gun and ammunition but failed to uncover either the fake marijuana or the victim's money.

Several days after Bachicha's arrest, the police recovered the murder weapon from the house of the acquaintance. And at trial, defendant's girlfriend related that she had picked defendant up at the acquaintance's house the night of the shooting.

Defendant did not testify at trial. His theory of defense was that he was not with Bachicha at the time of the shooting. The jury, however, found him guilty of aggravated robbery and first degree felony murder. The trial court merged the aggravated robbery conviction into the felony murder conviction and sentenced defendant to a term of life imprisonment without the possibility of parole.

I. Sufficiency of Evidence

Defendant contends that his felony murder conviction is not supported by sufficient evidence that he committed the alleged underlying felony, aggravated robbery. We disagree.

When examining the sufficiency of the evidence, we determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. People v. Sherwood, 5 P.3d 956, 959 (Colo. App.2000).

In undertaking this analysis, we recognize that (1) we do not assess the credibility of witnesses or resolve inconsistencies or contradictions in testimony, People v. Gonzales, 666 P.2d 123, 128 (Colo.1983); (2) the prosecution must be given the benefit of every reasonable inference which can be drawn from the evidence, People v. San Emerterio, 839 P.2d 1161, 1164 (Colo.1992); and (3) where reasonable minds could differ, the evidence is sufficient to sustain a conviction. See People v. Carlson, 72 P.3d 411, 416 (Colo.App.2003).

Here, defendant asserts that when the facts are considered, even in the light most favorable to the prosecution, the conclusion that must be drawn is that only a theft, and not a robbery, occurred. Defendant argues that the victim voluntarily handed over his money to defendant, without the "use of force, threats, or intimidation" required for the commission of a robbery under § 18-4-301, C.R.S.2005. We are not persuaded.

In People v. Bartowsheski, 661 P.2d 235, 244 (Colo.1983), the supreme court held that "[t]he gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of a transaction culminating in the taking of property from the victim's person or presence." Property is taken from the "presence of another," the court held, when the property "is so within the victim's reach, inspection or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim." People v. Bartowsheski, supra, 661 P.2d at 244. The court rejected the idea that the victim had to be aware of the taking for a robbery to occur. People v. Bartowsheski, supra.

In People v. Fox, 928 P.2d 820, 821 (Colo. App.1996), a division of this court held that the employment of force after the taking of property was completed was sufficient to support a conviction for robbery under the "course of the transaction" doctrine. In that case, the defendant's wife stole a purse from another woman's shopping cart. The other woman's husband followed the defendant and his wife to their truck, where the defendant forcefully shoved the husband before entering the truck and driving off with the purse. The division reasoned:

Defendant does not dispute that the husband and wife were both rightful owners of the property taken. Therefore, at the moment that defendant shoved the husband, he was utilizing force against a person who had a right to exercise control over an item of property that was still within sight and which would have been within his control if not for defendant's use of force.

People v. Fox, supra, 928 P.2d at 821; see also People v. Jones, 990 P.2d 1098, 1106 (Colo.App.1999)("There is no requirement that the application of force or intimidation must be virtually contemporaneous with the taking.").

Here, when viewed in the light most favorable to the prosecution, the evidence showed: (1) before leaving the house, defendant had told Bachicha that he would kill someone if "something goes down"; (2) the shooting took place in the car in which the false drug transaction occurred; (3) the shooting took place within a short time, less than thirty minutes, of the fake transaction; (4) the money and the fake marijuana were in the car and in reach of the victim; and (5) defendant told another that he had "smoked" the victim because he "was getting paranoid and nervous on [him]."

Under these circumstances, a reasonable jury could conclude that defendant shot the victim to retain control of the victim's money and, thus, committed a robbery upon which a conviction for felony murder could be based. Cf. People v. Foster, 971 P.2d 1082, 1085 (Colo.App.1998)(finding sufficient evidence to support robbery conviction where defendant stole bedskirts from a store and, after exiting the store, slammed a car door on a security guard's hand three times in order to continue his unlawful possession of the merchandise).

Consequently, we conclude there was sufficient evidence to support defendant's conviction for felony murder.

II. Lesser Offense Instruction

Defendant contends that the trial court erred in refusing to instruct the jury on the lesser offense of theft. We are not persuaded.

A defendant is entitled to an instruction on a lesser offense when there is a rational basis in the evidence upon which to acquit of the greater offense and convict of the lesser one. People v. Gordon, 32 P.3d 575, 578 (Colo.App.2001).

Under this standard, a lesser offense instruction is warranted when there exists in the record some evidence affirmatively tending to establish commission of only the lesser offense. Beaudoin v. People, 627 P.2d 739, 740 (Colo.1981); see People v. Hall, 59 P.3d 298, 300 (Colo.App.2002)(no lesser offense instruction needed "if the element that distinguishes the greater from the lesser offense is uncontested"); People v. Ramirez, 18 P.3d 822, 827 (Colo.App.2000)("[T]he mere chance that a jury may reject uncontroverted testimony and convict on the lesser charge does not require the trial court to instruct the jury on the lesser charge.").

Here, defendant requested a jury instruction on theft. The trial court refused, "based on the facts of [the] case concerning the weapons involved and what the plan was and the fact that there was ultimately a death in [the] case."

Defendant's assertion that the evidence could support a finding of only theft ignores that part of the transaction indicating that the victim was shot and killed as a means of retaining possession of the victim's money. Because robbery can be established over the "course of a transaction," and there was no evidence disputing the use of force in the last...