P. v. Bustamante

Filed 10/16/07 P. v. Bustamante CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed and remanded with directions.

Law Offices of Oscar B. Valencia, Oscar B. Valencia, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Luis Bustamonte (defendant) and a fellow gang member engaged in a fistfight with another man (the victim) they encountered in their gangs territory. During the fight, defendant took a gold chain from the victim. When the fight ended, defendant and his companion fled the scene, and the victim began walking toward home. On his way home, the victim again encountered the two gang members. They shouted something to the victim, and then defendants companion fired a revolver at the victim, hitting him in the arm. A jury found defendant guilty of attempted premeditated murder and second degree robbery.

On appeal, defendant argues that the evidence presented at the preliminary hearing did not establish sufficient cause to hold him to answer the attempted murder charge. We hold that defendant forfeited the right to challenge the sufficiency of the evidence presented at the preliminary hearing by failing to move the trial court to set aside the information under Penal Code section 995.^[1]We further hold that the evidence presented at the preliminary hearing established sufficient cause and that even assuming the evidence at the preliminary hearing was insufficient, defendant has failed to show any prejudice flowing from that error. We therefore affirm the judgment.

FACTUAL BACKGROUND^[2]

A. The Fight

Los Angeles Police Officer Mario Morales interviewed the victim at the hospital after the shooting and again the night before the preliminary hearing.^[3]According to Officer Morales, on October 28, 2005, the victim, Alex Cabrera, was hanging out in front of his friends house when he observed defendant and Erick Q. (Erick), a minor, walking toward him. Fearing something might happen, the victim told his friends to go inside, and he stood near the porch. Defendant approached the victim and asked him where you from? The victim replied that he wasnt from anywhere, that he was not involved in gangs, and that he did not care whether defendant and Erick belonged to a gang. Defendant told the victim that defendant was from the 8th Street Gang and that the victim was in defendants neighborhood. The victim had not had contact with either defendant or Erick before, but knew them from seeing them around the neighborhood.^[4]

After identifying himself as an 8th Street gang member, defendant tried to grab a gold chain from around the victims neck. The victim defended himself by hitting defendant. Defendant then told Erick to get this fool. Erick walked up behind the victim, and both Erick and defendant began fighting with the victim. The fight last approximately 10 minutes, and it went a few rounds, approximately three, because the participants would tire, stop fighting, and then continue fighting. During the fight, Erick looked tired and told defendant thats it, lets go. But defendant said, No, lets keep fighting, and they continued to fight with the victim.

During the fight, defendant was able to grab the chain that was hanging around the victims neck. Defendant took the chain and put it in his pocket.

After the third round of fighting, the combatants stopped. Defendant and Erick fled the scene toward an apartment complex approximately a block away. The victim began walking toward his house so he could clean up.

B. The Shooting

As he was walking down the street toward home, the victim heard someone yell Hey, whats up. When the victim turned around, he saw defendant and Erick standing behind him in the street, about 15 to 20 feet away. Defendant was standing approximately five to ten feet from Erick. Erick pulled a black revolver from his waistband and fired four or five rounds at the victim. The victim felt something in one of his arms, ducked down, looked at his arm and noticed he was bleeding. He ran back toward his friends house, and observed defendant and Erick fleeing the scene toward the same apartment complex to which they had fled after the initial altercation. The victim went back to his friends house, told his friend he had been shot,^[5]and they called the paramedics and the police.

C. Gang Evidence

Los Angeles Police Officer Tracy Marrufo testified concerning her knowledge of and experience with the 8th Street gang. She was a seven and a half year veteran of the department and was currently assigned to the Hollenbeck Division investigating gang activity. She had received training at the academy concerning gangs, attended three to four conferences on Hispanic gangs, received training from her partners that were 8th Street gang experts, and she had interviewed numerous 8th Street gang members regarding their gang. She had over 20 contacts each with defendant and Erick. And each had admitted to her that he was an 8th Street gang member.

Concerning the 8th Street gangs territory, Officer Marrufo had received information from 8th Street gang members themselves, from 8th Street gang expert officers and detectives, and through CALGANGS. The scene of the victims fight with defendant and Erick was within 8th Street gang territory, as was the scene of the shooting. The apartment complex into which defendant and Erick fled after both the fight and the shooting was a location where 8th Street gang members congregated. Officer Marrufo had contact with defendant in that area many times. She was familiar with other admitted 8th Street gang members from that area, and had participated in an investigation of one of those members for assault on a police officer.

Officer Marrufo opined that the primary activities of the 8th Street gang were homicides, assaults with deadly weapons, robberies, witness intimidation, and trafficking in narcotics; the 8th Street gangs common sign or symbol is the number eight; 8th Street gang is a Hispanic gang; Hispanic gangs are very territorial and demanding of respect; and it would be disrespectful for someone to challenge 8th Street gang members to a fight or refuse to give up his or her property.

Officer Marrufo further opined that, by shooting someone, a gang member enhances his reputation within the gang and shows his loyalty to the gang; enhances the gangs reputation with surrounding gangs; shows that the 8th Street gang is ruthless and violent; and promotes fear and intimidation within the community the gang seeks to control. Specifically, a shooting in retaliation for a physical altercation with an 8th Street gang member shows the 8th Street gang is ruthless. Officer Marrufo also testified that robbery is a gang activity that helps the gang raise money so it can pay taxes to the Mexican mafia, buy guns, and commit other crimes.

PROCEDURAL BACKGROUND

Prior to the filing of the information, the commissioner held a preliminary hearing. At the close of evidence, defendant moved to dismiss the attempted murder charge on the grounds, inter alia, that there was no evidence showing that defendant had knowledge of or participated in the shooting. The commissioner denied the motion and held defendant to answer to an attempted murder charge, a robbery charge, and the special allegations, as set forth in the amended complaint.

Following the commissioners ruling, the Los Angeles County District Attorney filed an information charging defendant in Count 1 with attempted premeditated murder in violation of sections 664 and 187, subdivision (a), and in Count 2 with second degree robbery in violation of section 211. As to both counts, the District Attorney alleged that a principal personally and intentionally used a firearma handgunwhich proximately caused great bodily injury, within the meaning of section 12022.53, subdivisions (b) and (e)(1). The District Attorney further alleged that defendant committed both crimes for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(C). Defendant pleaded not guilty and denied the special allegations.

After a trial, the jury found defendant guilty of attempted premeditated murder and second degree robbery. The jury also found the gun use allegations to be true as to both counts and found the gang enhancement allegation to be true as to the attempted murder count only.

The trial court sentenced defendant on the attempted murder conviction to a life term, with a minimum 15 year parole eligibility date based on the gang enhancement. Based on the gun use enhancement, defendant received an additional sentence on the attempted murder conviction of 25 years to life, for an aggregate sentence of 40 years to life.^[6]The trial court also sentenced defendant to a consecutive midterm sentence of three years on the robbery conviction. The trial court awarded defendant 402 days of custody credit, consisting of 350 days of actual custody credit and 52 days of conduct credit.

DISCUSSION

A. Standard of Review

Defendant challenges the commissioners denial of his motion to dismiss the attempted murder charge based on a lack of sufficient cause to hold him to answer to that charge. According to defendant, the transcript of the preliminary hearing is devoid of any evidence that [defendant] is guilty of the crime of [a]ttempted [m]urder.

A defendant is legally committed within the meaning of section 995, insofar as the quantum of evidence is in issue, if it appears from the [preliminary] examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof. ( 872 [now subd. (a)].) The term sufficient cause is generally equivalent to reasonable and probable cause, that is, such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657; 511 P.2d 609].) . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and every legitimate inference that may be drawn by the reviewing court from the evidence must be drawn in favor of the information. (Caughlin v. Superior Court (1971) 4 Cal.3d 461,464-465 [93 Cal.Rptr. 587, 481 P.2d 211].) (People v. Williams (1988) 44 Cal.3d 883, 924-925.) Evidence that will justify a prosecution need not be sufficient to support a conviction. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, italics added.)

B. Forfeiture

At the close of the preliminary hearing, defendant made an oral motion to the commissioner to dismiss the attempted murder charge on the grounds that the prosecutions evidence failed to establish sufficient cause to hold him to answer to that charge. The commissioner denied the motion and held defendant to answer both the attempted murder and robbery charges. The District Attorney then filed an information formally charging defendant with attempted murder and robbery. Defendant, however, did not attempt to challenge the information by filing a motion in the trial court to set it aside pursuant to section 995.

The commissioners order at the conclusion of defendants preliminary hearing was simply a holding of petitioner to answer, followed by the filing of an information. [Citation.] The filing of the information gave the superior court jurisdiction to proceed with the matter. [Citation.] (In re Berry (1955) 43 Cal.2d 838, 844 (Berry).)

The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other. (People v. Sherwin (2000) 82 Cal.App.4th 1404, 1411.) A motion in the trial court under section 995 is the exclusive method provided by law for challenging the legality of the commitment. (Berry, supra, 43 Cal.2d at p. 844.) Failure to move to set aside the information pursuant to section 995 forfeits any subsequent challenge to the sufficiency of the evidence presented at the preliminary hearing. (Ibid.; In re Wells (1967) 67 Cal.2d 873, 875 [failure to move to set aside information under section 995 waives defendants right to question the legality of his commitment].)

Although defendant orally moved the commissioner to dismiss the attempted murder charge at the close of the preliminary hearing, he made no attempt after the information was filed and the trial court assumed jurisdiction over the case, to challenge the sufficiency of the preliminary hearing evidence in the trial court under section 995. His failure to do so forfeited any such challenge on appeal.

C. Evidence of Sufficient Cause

Defendants argument that there was insufficient evidence presented at the preliminary hearing assumes that he made an appropriate challenge to that evidence by his oral motion to the commissioner. As discussed above, defendant was required to file a motion to set the information aside under section 995 in the trial court, which he did not do. But even assuming that he had not forfeited the issue, there was sufficient evidence presented at the preliminary hearing to hold defendant to answer the attempted murder charge.

In support of his contention that the prosecution failed to show sufficient cause at the preliminary hearing, defendant emphasizes that Erick shot the victim, not defendant. Although the evidence showed that the defendant did not pull the trigger, the prosecution did not contend that defendant directly committed the act that constituted the attempted murder. Instead, the prosecution relied upon an aiding and abetting theory of liability, and the evidence presented was sufficient to hold defendant to answer to the attempted murder charge based on that theory.

All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed. (Pen. Code, 31; see People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123 [77 Cal.Rptr.2d 428, 959 P.2d 735]; People v. Prettyman (1996) 14 Cal.4th 248, 259-260 [58 Cal.Rptr.2d 827, 926 P.2d 1013].) Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. (Ibid.) Because aiders and abettors may be criminally liable for acts not their own, cases have described their liability as vicarious. (E.g., People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [221 Cal.Rptr. 592, 710 P.2d 392].) This description is accurate as far as it goes. But, as we explain, the aider and abettors guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination of the direct perpetrators acts and the aider and abettors own acts and own mental state. (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.)

We have described the mental state required of an aider and abettor as different from the mental state necessary for conviction as the actual perpetrator. (People v. Mendoza, supra, 18 Cal.4th at p. 1122.) The difference, however, does not mean that the mental state of an aider and abettor is less culpable than that of the actual perpetrator. On the contrary, outside of the natural and probable consequences doctrine, an aider and abettors mental state must be at least that required of the direct perpetrator. To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr.60, 674 P.2d 1318], italics in original.) When the offense charged is a specific intent crime, the accomplice must share the specific intent of the perpetrator; this occurs when the accomplice knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. (Ibid.) (People v. Prettyman, supra, 14 Cal.4th at p. 259.) . . . [W]hen the charged offense and the intended offensemurder or attempted murderare the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, . . . the aider and abettor must know and share the murderous intent of the actual perpetrator. (People v. McCoy, supra, 25 Cal.4th at pp. 1117-1118.)

The evidence presented at the preliminary hearing showed that defendant and Erick, both members of the 8th Street gang, confronted the victim in 8th Street gang territory. Taking the lead, defendant asked the victim where he was from and told the victim that he was in the 8th Street gangs territory. Defendant then tried to rob the victim of a gold chain and, when the victim resisted, defendant directed Erick to assault the victim. Defendant joined Erick in fighting with the victim and, during the altercation, was successful in taking the victims gold chain. At one point during the three round altercation, Erick wanted and tried to quit, but defendant directed him to continue, which Erick did.

According to the expert testimony, the assault and robbery of the victim in 8th Street gang territory was consistent with the gangs primary activities. That evidence was sufficient to cause a person of ordinary caution and prudence to believe that, by assaulting and robbing the victim, defendant and Erick were acting in furtherance of the 8th Street gangs objectives of neighborhood intimidation and crime for profit. Moreover, given the expert testimony about how 8th Street gang members would react to a victim resisting their attempts at intimidation and robbery, a person of ordinary caution and prudence could also believe that, when the fight ended, defendant and Erick were not finished dealing with the victim.

There was no evidence that defendant or Erick produced any weapons during the fight, which suggests that they were unarmed during the fight. At the end of the fight, defendant and Erick returned to the apartment complex where 8th Street gang members congregated. A short while later, they again approached the victim from behind as he walked toward home. They shouted to the victim, who turned and saw them standing together 15 or 20 feet away from him. Erick then pulled a revolver from his waistband and fired four or five shots at the victim, hitting him in the arm. Defendant and Erick then fled the scene towards the same apartment complex.

These facts, when combined with the expert testimony, were sufficient to lead a person of ordinary caution and prudence to believe that defendant and Erick left the scene of the fight, returned to the apartment complex where the 8th Street gang congregated, and retrieved a handgun for the purpose of seeking vengeance on the victim for fighting them and resisting their attempts to intimidate and rob him. Contrary to his assertion, defendants knowledge of Ericks intent to shoot the victim, and defendants own intent to aid and abet that shooting, can reasonably be inferred from the circumstances. Defendant appeared to take the lead in the initial confrontation with the victim, and defendant directed Ericks actions during the fight when he told Erick to get this fool and, later, to continue to fight. That evidence supports an inference that, as between defendant and Erick, defendant was in charge and therefore was fully aware and supportive of Ericks intent to shoot the victim. Because we cannot substitute our judgment as to the weight of the evidence, and must instead draw from that evidence every legitimate inference in favor of the information, we conclude there was sufficient cause for the trial court to hold defendant to answer to the attempted murder charge.

Defendant argues that he was unaware of Ericks intent to shoot the victim, citing to Ericks trial testimony, during which Erick testified that defendant was unaware that Erick had a gun and that Erick acted alone. But Ericks trial testimony was not before the commissioner at the preliminary hearing. The issue, as raised by defendant, is whether the quantum of evidence presented at the preliminary hearing was legally sufficient to hold defendant to answer to the attempted murder charge. In determining that issue, we must review the evidence presented at that hearing, not the evidence presented at trial. As noted, based on our review of the appropriate evidence, there was sufficient cause to hold defendant to answer.

D. Prejudice

Even assuming, arguendo, that the evidence at the preliminary hearing was insufficient to hold defendant to answer to the attempted murder charge, reversal of the conviction is not warranted unless defendant can show that the error at the preliminary hearing stage deprived him of a fair trial or otherwise caused him to suffer prejudice at trial. (People v. Seaton (2001) 26 Cal.4th 598, 646; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Defendant, however, has failed to show any such prejudice. To the contrary, defendant has implicitly admitted that he was not prejudiced by the purported error at the preliminary hearing by failing to raise on appeal any error in connection with the trial itself. In doing so, defendant concedes, in effect, that he was convicted of attempted murder after a fair trial, free from error. Therefore, any claim of error at the preliminary hearing would be harmless.

Defendant nevertheless maintains he suffered prejudice at trial from the purported error at the preliminary hearing. According to defendant, the attempted murder charge should have been dismissed at the preliminary hearing stage and, if it had been, none of the expert gang evidence introduced at trial would have been admitted. But if the attempted murder charge had been dismissed, no evidence relevant to that charge would have been introduced at trial. In essence, defendant is arguing that he was prejudiced by having to proceed to trial on the merits of the attempted murder charge, not that the purported error had a specific prejudicial effect on some aspect of his trial. The gang-related evidence was presumably relevant to the elements of the attempted murder charge, and therefore admissible―and defendant does not contend otherwise on appeal. Thus, defendant was not prejudiced by having to proceed to a trial that he implicitly concedes was free from error.

DISPOSITION

The judgment is affirmed and the trial court is directed to complete the abstract of judgment with respect to Item number 5 so that it accurately reflects defendants prison sentence.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.

^[2] Because defendant challenges the sufficiency of the evidence presented at the preliminary hearing, the following facts are taken from the transcript of that hearing.

^[3] The victim did not testify at the preliminary hearing, but Officer Morales did.

^[4] The victim identified defendant and Erick from separate photo lineups.

^[5] The victim had been shot in the right forearm approximately two inches from his wrist. The bullet traveled from that entry point to his right elbow and lodged below the elbow.

^[6] In light of defendants sentence as pronounced by the trial court, the abstract of judgment does not appear complete. Item number 5 at the bottom of the first page must be filled in to reflect accurately defendants prison sentence.