People v. Buenrostro

• Decision Date: 14 September 2021
• Docket Number: G058813
• Parties: THE PEOPLE, Plaintiff and Respondent, v. VICTOR BUENROSTRO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. VICTOR BUENROSTRO, Defendant and Appellant.

G058813

California Court of Appeals, Fourth District, Third Division

September 14, 2021

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No 18CF0617, 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.

OPINION

BEDSWORTH, J.

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 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, 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, 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 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, appellan...