People v. Buenrostro

CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. VICTOR BUENROSTRO, Defendant and Appellant.
Docket NumberG058813
Decision Date16 March 2022

THE PEOPLE, Plaintiff and Respondent,

VICTOR BUENROSTRO, Defendant and Appellant.


California Court of Appeals, Fourth District, Third Division

March 16, 2022


Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 18CF0617 Patrick Donahue, Judge. Affirmed in part, reversed in part, and remanded with directions.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Melissa Mandel, Assistant Attorneys General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.




This case comes to us on transfer from the California Supreme Court. After we affirmed the judgment committing appellant to prison for 28 years, the Supreme Court granted his petition for review and ordered us to vacate our decision and reconsider the matter in light of various sentencing laws that became effective on January 1, 2022. Given these new laws, we agree with the parties that appellant is entitled to be resentenced. Therefore, we vacate our prior opinion in People v. Buenrostro (Sept. 14, 2021, G058813) [nonpub. opn.], reverse appellant's sentence, and remand the matter for a new sentencing hearing. However, we remain convinced appellant's arguments regarding the sufficiency of the evidence and the introduction of certain evidence lack merit. Therefore, we affirm the judgment in all other respects.


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, then age 21, 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. The jury also found true various enhancement allegations, and in a separate proceeding, the trial court found appellant had suffered a prior strike conviction for which he served a term in prison. The court sentenced him to 28 years in prison for his crimes.


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 ...

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