P. v. Albarran
Filed 11/6/13
P. v. Albarran CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN ALBARRAN, Defendant and Appellant. | F065855 (Super. Ct. No. BF137702E) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Donn Ginoza,
under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
On August
9, 2011, appellant, Cristian Albarran, and four codefendants were charged in a second
amended indictment with first degree
murder (Pen. Code, § 187, subd. (a), count one),
count two), shooting at an occupied vehicle (§ 246, count three), and participation
in a criminal street gang (§ 186.22,
subd. (a), count four).
name="_ftnref3" title="">[2] The second amended indictment included
special allegations as to count one that appellant committed his offenses for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), acted as a
principal in the commission of murder and at least one other principal
intentionally and personally discharged a firearm proximately causing great
bodily injury or death of the victim (§ 12022.53, subds. (d) &
(e)(1)), was a principal in the commission of murder and committed the special
circumstance of being an active participant in a criminal street gang
(§ 190.2, subd. (a)(22)), and participated in the special circumstance of
robbery while committing murder (§ 190.2, subd. (a)(17)(A)). Counts two and three included the same special
gun and gang allegations as were alleged in count one, but not the special
circumstance allegations.
A jury
trial began for appellant and all of the codefendants on May 16, 2012. On the second day of trial, appellant entered
into a plea agreement whereby he would
admit count two, second degree robbery, the gang enhancement and a gun
enhancement pursuant to section 12022.53, subdivisions (c) and (e)(1). Under the terms of the plea agreement,
appellant would receive a stipulated sentence of 5 years on count two and a
consecutive term of 20 years for the gun enhancement for a total prison term of
25 years. Appellant executed a felony
advisement of rights, waiver and plea form acknowledging the terms of the plea
agreement, the consequences of his plea, his constitutional rights pursuant to
title="">[3] and waiving his constitutional rights.
The trial
court advised appellant of the consequences of his plea and his constitutional
rights pursuant to Boykin/
The parties stipulated to a factual basis for the plea based on the
police reports and the transcript of the grand jury hearing. Appellant pled no contest to a felony
violation of count two. Appellant
admitted two enhancements and the allegation that he was 16 years old or older
when he committed the offense and the offense was listed in Welfare and
Institutions Code section 707, subdivision (b), within the meaning of Welfare
and Institutions Code section 707, subdivision (d)(1).
On June 15,
2012, the court granted appellant’s request for a substitution of trial counsel
to investigate whether appellant had grounds to withdraw his plea. Appellant alleged that he entered his plea
through mistake, ignorance, and inadvertence because he lacked maturity and
sufficient time to deliberate the plea bargain, he was confused over the length
of the sentence, and the character of the victim potentially supported a
meritorious defense.
Defense counsel was examined during
the hearing. Defense counsel explained
he reviewed potential defenses with appellant, but also pointed out to
appellant that he had little evidence from which to mount a defense. Defense counsel explained to appellant the
legal concepts of aiding and abetting as well as conspiracy. Defense counsel was concerned that appellant
was very young and faced a potential sentence of life without the possibility
of parole. Defense counsel recommended
to appellant that he accept the plea agreement but explained it was completely
up to appellant whether or not to accept the plea bargain. At the conclusion of a hearing on September
14, 2012, the trial court denied appellant’s motion to withdraw his plea and
proceeded to sentence him.
The court sentenced appellant to
the stipulated sentence of 25 years, comprising 5 years for second degree
robbery and a consecutive term of 20 years for the gun use enhancement. The court stayed the gang enhancement
pursuant to section 654. Custody credits
of 485 days for time served prior to his plea and conduct credits of 72 days
were awarded for total custody credits of 557 days. Victim restitution of $21,249.21 was ordered
along with a restitution fine. Other
fees, fines and assessments were also ordered.
Appellant
obtained a certificate of probable cause.
Appellate counsel has filed a brief seeking independent review of the
case by this court pursuant to People v.
Wende (1979) 25 Cal.3d 436 (
FACTS
Gang Membership, Activity, and Predicate Offenses
The following evidence was
presented to the grand jury. The
prosecution’s gang expert testified that Sureño gangs in Bakersfield are hostile
to each other. Among these rival gangs
are the Loma Bakers who claim the east side of Bakersfield as their territory
and the West Side Bakers who claim west Bakersfield as their territory.
A shooting by a rival gang is a
sign of disrespect in gang culture. Gang
members thrive off of respect, fear, and intimidation. A shooting by a gang member of a rival gang
member would compel retaliation.
Retaliation against a rival gang for a shooting does not have to be
against the perpetrator. One would gain
status in a gang by retaliating and shooting someone from a rival gang. Assisting another gang member in committing a
murder, for instance, would earn that person respect within the gang.
For gang members, asking someone
where they are from is considered a challenge.
Asking where one is from can lead to a gang member indentifying his or
her gang and “throwing a sign†for that gang.
This can be considered disrespectful.
When a confrontation occurs in front of fellow gang members, there is an
expectation they will all join in an attack of a rival gang member. When a group of gang members goes out
together, it is common for them to carry firearms. This is especially true when such a group
goes into another gang’s territory. When
a fellow gang member travels with a gun, everyone in the group knows. It is disrespectful not to tell others in the
group when one is carrying a weapon.
On October 29, 2010, Christopher
Moreno, a member of the Loma Bakers, admitted committing a burglary and his
gang membership, and was convicted of burglary and the gang enhancement for the
commission of that offense. On January
29, 2010, Ariel Rosete of the Loma Bakers, while an active member of the gang,
committed an assault with a deadly weapon for the benefit of the gang. Rosete was flashing a gang sign during the
offense and claimed Loma Baker membership while he was being booked.
Codefendants Emmanuel Toscano,
Hilario Aguero, Gabriel Gonzales, and Fernando Garcia-Santos have all admitted
membership in the Loma Baker gang. Emmanuel
Toscano’s brother, Jacob Toscano, was a member of the Hillside gang, a subset
of the Loma Bakers. Appellant has a “KCâ€
tattoo and a three-dot triangle representing the Sureño gang, the gang with
which the Loma Bakers are affiliated.
In April 2011, Jacob Toscano was
shot in Loma Baker territory by a shooter who yelled “South Side.†Jacob yelled back “Hillside†or “East
Side.†Emmanuel Toscano was also shot by
a rival gang member while in Loma Baker territory.
Murder of Gerardo Villapudua
A Quinceanera party was announced
for Saturday evening, April 30, 2011, at Santiago’s Restaurant on South H
Street close to downtown Bakersfield. Santiago’s
is considered to be in west Bakersfield gang territory. Melina M. was living near Jefferson Park in
the territory of Loma Bakers. Melina had
been invited to the Quinceanera. The day
prior to the party, Melina was introduced to Emmanuel Toscano by one of her
sisters at a park. Melina invited
Toscano to the Quinceanera party. At
first Toscano was hesitant to go to the party until he learned it was at
Santiago’s.
Toscano texted and later called
Melina. Toscano told her to meet him
outside the restaurant in an alley. Melina
met Toscano, who had arrived with five others.
Melina recognized two of the men, Aguero and Garcia-Santos, from
Jefferson Park. After talking to Melina
and learning there was no free beer at the party, Toscano walked to Harry’s
Liquor, next door to Santiago’s, to purchase beer for his friends. Toscano left Harry’s with a 3-pack of beer. Melina talked to Toscano. Toscano’s brother and Gonzales were also
present.
Eduardo P. and Eduardo G. and their
friend Anthony V. arrived to the party around 7:00 p.m. or 8:00 p.m. and walked
over to Harry’s. As the defendants
walked into Harry’s, Eduardo G. heard them yell “West Side Bakers.†Eduardo P. heard all of them yell “West Sideâ€
and “East Side Killer.†Eduardo P.,
Eduardo G., and Anthony V. returned to Santiago’s and sat at an enclosed patio
area for 20 minutes.
After a few minutes, Francis R. and
Gerardo Villapudua arrived in a Volkswagen driven by Francis. They parked in the church parking lot directly
next to Santiago’s. Francis R. knew Villapudua
was a tagger, but did not consider him to be a West Side Baker or a member of
any other gang. Eduardo P. and Eduardo
G. walked over to the car and socialized for a few minutes before everyone
returned to the patio to eat.
Someone in Toscano’s group yelled
“West Side†from the parking lot next door and threw gang signs. Eduardo G. asked Francis R. to drive him home
to pick up a sweater. As Eduardo P.,
Eduardo G., Francis R., and Villapudua were headed toward the Volkswagen, they
were being followed by the defendants. Toscano
confronted them, asking, “Where are you from?â€
They replied to Toscano’s group that they did not “bang.†Villapudua, however, remained quiet. People in Toscano’s group said they were from
the West Side or they were West Side Bakers.
Toscano and other members of his group kept pressing the group in
Francis R.’s Volkswagen where they were from, and the response was that they
did not bang.
Someone in the Toscano group asked
where the East Siders were. Eduardo P.
replied he did not know. Villapudua told
Toscano he had gotten into a fight with East Siders. Toscano said, good because he did not like
them. Toscano shook everyone’s hand and
said, “Well, just keep it West Side.â€
Then Villapudua
said he was from the Southwest. The
defendants’ attitude changed. They
became more aggressive and wanted to fight Villapudua. Gonzales told Villapudua that Villapudua would
have to catch a “fade,†meaning he wanted to fight Villapudua. Villapudua kept saying no to the invitation
to fight.
Eduardo G., Eduardo P., Villapudua,
and Francis R. got into the Volkswagen.
Gonzales reached into the car and took Villapudua’s cell phone. Villapudua demanded that Gonzales return his
phone but Gonzales said he could get it back if they fought. Gonzales pretended to give Villapudua’s phone
back, but grabbed his hat. Neither the hat
nor the phone were returned.
As Gonzales’s confrontation with Villapudua
was happening, the other defendants were standing a few feet away watching. Villapudua told Gonzales that he was going to
call the older “homies.†The defendants
looked angry and became loud. The
defendants yelled things like “West Side.†The defendants also called Villapudua a
“bitch.â€
As Francis R. was trying to pull
the car out of the parking space, Toscano opened the passenger door, pointed a gun
at Villapudua, and fired at him. Villapudua
ran out of the car toward Santiago’s but fell down not far from the car. One bullet went through the speedometer of
Francis R.’s Volkswagen and cut wiring in that vicinity.
Toscano’s fingerprints were
recovered from a can of beer. Appellant’s
fingerprints were also identified on a beer can found at the scene. Melina heard appellant yell “West Side†when
the defendants were at Harry’s. Appellant
was standing with Toscano during the confrontation. Appellant was 16 years old at the time of the
offense.
APPELLATE COURT
REVIEW
Appellant’s
appointed appellate counsel has filed an opening
brief that summarizes the pertinent facts, raises no issues, and requests
this court to review the record independently.
(Wende, supra, 25 Cal.3d 436.) The
opening brief also includes the declaration of appellate counsel indicating
that appellant was advised he could file his own brief with this court. By letter on February 4, 2013, we invited
appellant to submit additional briefing.
To date, he has not done so.
After
independent review of the record, we have concluded there are no reasonably
arguable legal or factual issues.
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before Kane, Acting P.J., Franson, J., and Peña, J.
name="_ftn2" title="">[1] Unless otherwise indicated, all statutory references are to
the Penal Code.
