Opinion
B161002.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. LUIS BRACAMONTES, Defendant and Appellant.
David L. Tucker, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Margaret E. Maxwell, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Luis Bracamontes, appeals from his convictions for attempted robbery (Pen. Code, §§ 211, 664) and robbery ( § 211), during the commission of which he was found to be an armed principal and to have personally used a firearm. ( §§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subd. (b).) The jury also found that in the robbery of Rahmat Youssefzadeh, defendant inflicted great bodily injury. ( § 12022.7, subd. (a).) Defendant admitted that he had previously served four prison terms and had been convicted of five serious felonies. Defendant argues there was insufficient evidence to support his conviction for attempted robbery and that he inflicted great bodily injury on Mr. Youssefzadeh. The Attorney General argues defendants sentence should be modified. We affirm but with sentencing modifications.
There are two participants in the November 5, 2001, robbery with the surname Bracamontes. The first was defendant. The second was Miguel Bracamontes. For purposes of clarity, Miguel Bracamontes will be referred to as Mr. Bracamontes.
All further statutory references are to the Penal Code unless otherwise indicated.
II. THE FACTS
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Osband (1996) 13 Cal.4th 622, 690, 919 P.2d 640; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On November 5, 2001, Mr. Youssefzadeh was working in his textile warehouse. Mr. Youssefzadeh and an employee, Felipe Arellano, were closing the warehouse at approximately 7:15 p.m. Mr. Youssefzadeh had set the alarm. After Mr. Youssefzadeh locked the door, Mr. Arellano was handed the key to the exterior gate. Immediately thereafter, five masked men attacked Mr. Youssefzadeh and Mr. Arellano. Two of the assailants wore knit caps that fully covered their faces and three wore bandanas. A tall man had a handgun. A shorter, heavier man had a shotgun. Mr. Youssefzadeh was hit in the head and face with the guns. The man with the handgun hit Mr. Youssefzadeh in the head. Mr. Youssefzadeh was forced to open the door. The man with the shotgun told Mr. Youssefzadeh, "Turn off the alarm and dont put the panic number, otherwise I will kill you." The other three men pushed Mr. Arellano and demanded keys to the three trucks. The men spoke to Mr. Arellano in Spanish. The men pushed Mr. Youssefzadeh and Mr. Arellano inside. Mr. Youssefzadeh was injured and moving slowly. Mr. Youssefzadeh gave the man with the shotgun all the keys. Mr. Youssefzadeh turned off the alarm. Mr. Youssefzadeh was ordered to, "Lay down." Thereafter the men beat and kicked Mr. Youssefzadeh for five or six minutes, hit him with the butt of the shotgun in the cheek, dragged him to a hallway, and left him unconscious. The men then entered the warehouse. Mr. Youssefzadehs next recollection was in the ambulance some 35 to 40 minutes later. Mr. Youssefzadeh was treated at the hospital for serious facial injuries.
Soon after the assailants left Mr. Youssefzadeh, Mr. Arellano heard the police helicopter outside. One of the assailants shouted out that the police had arrived. Mr. Arellano directed the three men that had been with him to a non-existent exit in the warehouse. Mr. Arellano went toward the front of the warehouse to hide, believing the police would find him there. After police officers found Mr. Arellano, he pointed out where the three men were hiding. The police found those three men first. The fourth man was found two hours later and the fifth culprit five hours later.
Los Angeles Police Officer Mike Peters and his dog arrived at the crime scene to search for the suspects. Officer Peters was summoned because the warehouse was very large and contained stacked pallets of textiles. Officer Peters spoke with Mr. Arellano. Following Mr. Arellanos direction, Officer Peters then found the three individuals that he had directed to the corner of the warehouse, Juan Alcala, Marco Reyes, and Daniel Robles. Three beanies were also found in the area where they were hidden. Thereafter, Officer Peters dog signaled a reaction to a scent from an upstairs storage area. Defendant was hiding in a pile of textile rolls. Officer Carter Fenstemacher found defendant holding a loaded revolver. Defendant complied with the officers orders to drop the weapon and come out. Five live rounds of ammunition were recovered from defendants person. Officer Peters then requested assistance from the special weapons and tactics team. The search was delayed until the special weapons and tactics team arrived. Thereafter, Officer Peters dog located Mr. Bracamontes hiding amongst some palletts. A loaded shotgun was found in the area where Mr. Bracamontes would have necessarily climbed to get to his hiding place. Another beanie was found near where Mr. Bracamontes had been hiding. Detective Mario Cortez was present when officers found two sets of keys in Mr. Bracamontess pockets. One set of keys belonged to Mr. Youssefzadehs Mercedes Benz parked in the parking lot of his warehouse.
At approximately midnight, Mr. Youssefzadeh was returned to the warehouse. The police brought out Mr. Bracamontes. Mr. Youssefzadeh identified Mr. Bracamontes as the man who had used the shotgun earlier that evening. At trial, Mr. Youssefzadeh again identified Mr. Bracamontes as the individual who used the shotgun. Mr. Youssefzadeh also identified defendant at trial as the tall man that used the handgun. Mr. Youssefzadeh had been able to see Mr. Bracamontes eyes and face from the nose down. Mr. Youssefzadeh suffered numerous head and facial injuries. Mr. Youssefzadeh had stitches on his cheek. The bone under Mr. Youssefzadehs right eye socket was broken. Mr. Youssefzadeh had plastic surgery to repair his injuries. When Mr. Youssefzadeh testified at the preliminary hearing, he identified the tallest of all five defendants as the man who had the gun.
Defendant, who admitted that he previously had been convicted of felonies on various occasions, testified on his own behalf. Defendant claimed that he and several other individuals went to Mr. Youssefzadehs textile warehouse in order to do some "loading and unloading." Mr. Arellano told defendant to hide. Defendant was discovered while hiding pursuant to Mr. Arellanos explicit instructions. Defendant denied possessing a handgun or bullets.
III. DISCUSSION
A. Evidentiary Sufficiency Contentions
Defendant argues there was insufficient evidence to support his attempted robbery conviction of Mr. Arellano and that he inflicted great bodily injury finding. We disagree. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, 827 P.2d 388, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631, 276 Cal. Rptr. 874, 802 P.2d 376; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738; see also People v. Gurule (2002) 28 Cal.4th 557, 630.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at pp. 318-320; People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374; People v. Marshall (1997) 15 Cal.4th 1, 34, 931 P.2d 262; People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103; People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal. Rptr. 228, 721 P.2d 110; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618; People v. Stanley (1995) 10 Cal.4th 764, 792, 897 P.2d 481; People v. Bloom (1989) 48 Cal.3d 1194, 1208, 259 Cal. Rptr. 669, 774 P.2d 698; People v. Bean (1988) 46 Cal.3d 919, 932, 251 Cal. Rptr. 467, 760 P.2d 996.) The California Supreme Court has held: "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal. Rptr. 529, 457 P.2d 321.)
There was substantial evidence to support defendants conviction for the attempted robbery of Mr. Arellano. Section 31 provides in pertinent part: "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." In People v. McCoy (2001) 25 Cal.4th 1111, 1118, the California Supreme Court held: "When a person `chooses to become a part of the criminal activity of another, [he] says in essence, "your acts are my acts . . . ." (Ibid. , quoting Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings L.J. 91, 111; see also People v. Garcia (2002) 28 Cal.4th 1166, 1173 [the aider and abettor doctrine "obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role"]; People v. Prettyman (1996) 14 Cal.4th 248, 259, 926 P.2d 1013; People v. Beeman (1984) 35 Cal.3d 547, 554-555, 199 Cal. Rptr. 60, 674 P.2d 1318.) The jury was instructed with CALJIC No. 3.00 as follows: "Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. [P] Principals include, 1, those who directly and actively commit the act constituting the crime or, 2, those who aid and abet the commission of the crime." They were also instructed with CALJIC No. 3.01: "A person aids and abets the commission of a crime when he or she, 1, with knowledge of the unlawful purpose of the perpetrator and, 2, with the intent or purpose of committing or encouraging or facilitating the commission of the crime and, 3, by act or advice aids, promotes, encourages, or instigates the commission of the crime. . . ."
The evidence established that defendant, accompanied by four accomplices, approached Mr. Youssefzadehs warehouse at closing time with the intent to rob whomever was present. The fact that the five men took on different victims to accomplish that purpose was of no consequence. All five men were criminally responsible for the acts of one another. Defendant was therefore responsible for the conduct of the others directed at Mr. Arellano. Substantial evidence supports defendants attempted robbery conviction.
In addition, there was substantial evidence that defendant personally inflicted great bodily injury on Mr. Youssefzadeh. Section 12022.7 provides in pertinent part: "(a) Any person who personally inflicts great bodily injury on any person . . . in the commission of a felony or attempted felony shall be punished by an additional and consecutive term or imprisonment in the state prison for three years." Our colleagues in the Court of Appeal for the Fourth Appellate District addressed the situation where more than one individual was involved in inflicting the great bodily injuries and held: "When a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered." (People v. Corona (1989) 213 Cal. App. 3d 589, 594, 261 Cal. Rptr. 765; see also People v. Banuelos (2003) 106 Cal.App.4th 1332, 1336-1338 [victims broken jaw may have been caused by the defendants use of a bat or other instruments used by seven assailants]; In re Sergio R. (1991) 228 Cal. App. 3d 588, 601-602, 279 Cal. Rptr. 149 [defendant and another fired 12-gauge shotguns into a crowd]; but see People v. Gutierrez (1996) 46 Cal.App.4th 804, 816 [prosecutor did not meet his burden of proof because he failed to prove which defendant fired a specific handgun].) CALJIC No. 17.20, as given in this case, includes direction for jurors of instances where there was more than one assailant and the victim suffered great bodily injury: "When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if: [P] 1, the application of unlawful physical force upon the victim was of such a nature that by itself it could have caused a great bodily injury suffered by the victim; [P] or, 2, that at the time the defendant personally applied unlawful physical force to the victim the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim; [P] and the defendant then knew or reasonably should have known that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim."
The evidence demonstrated that defendant and Mr. Bracamontes each struck Mr. Youssefzadeh repeatedly. Defendant hit Mr. Youssefzadeh in the head several times with a handgun. Mr. Bracamontes hit Mr. Youssefzadeh in the head and face with the shotgun. In addition, both defendant and Mr. Bracamontes kicked and beat Mr. Youssefzadeh for five or six minutes into unconsciousness. Mr. Youssefzadeh had numerous head and facial injuries. Mr. Youssefzadeh had broken facial bones beneath his right eye socket. Mr. Youssefzadeh required stitches and plastic surgery to repair his wounds. Accordingly, substantial evidence supported the jurys finding that defendant personally inflicted great bodily injury on Mr. Youssefzadeh. (People v. Banuelos, supra, 106 Cal.App.4th at pp. 1336-1337; People v. Corona, supra, 213 Cal. App. 3d at pp. 593-594; In re Sergio R., supra, 228 Cal. App. 3d at pp. 601-602.)
B. Sentencing Errors
Both defendant and the Attorney General argue the trial court made several errors in sentencing defendant. We agree with that assessment but differ as to the proposed resolution of those errors. First, as to count 1, the trial court orally imposed a sentence of 32 years to life. But, given the admission concerning the 1990 five prior violent and serious felony convictions, the court was required to sentence defendant to 25 years to life for the robbery of Mr. Youssefzadeh. (People v. Morales (2003) 106 Cal.App.4th 445, 454-455; People v. Green (1996) 50 Cal.App.4th 1076, 1087.) Also, because of the jurys finding that defendant used a firearm within the meaning of section 12022.53, subdivision (b), the trial court was required to impose an additional 10-year sentence as to count 1. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1311-1315; see People v. Wilson (2002) 95 Cal.App.4th 198, 202 ; People v. Taylor (2001) 93 Cal.App.4th 318, 322-323.) Further, as to count 1, the trial court orally imposed a 3-year section 12022.7, subdivision (a) great bodily injury enhancement. Hence, the count 1 sentence should have been 38 years to life. (We will discuss the prior prison term enhancements in the next three paragraphs.)
Second, the trial court imposed enhancements as to count 1 pursuant to sections 667, subdivision (a)(1), 667.5, subdivision (a), and section 667.5, subdivision (b), for one of defendants prior prison terms. In People v. Jones (1993) 5 Cal.4th 1142, 1149-1152, 857 P.2d 1163, the California Supreme Court held that section 654, subdivision (a) bars cumulative imposition of enhancements for both sections 667, subdivision (a)(1) and 667.5, subdivision (b). Only the greatest enhancement pursuant to section 667, subdivision (a)(1), should be imposed. (Id. at p. 1152; see also People v. Baird (1995) 12 Cal.4th 126, 132-133, 906 P.2d 1220.) (Although People v. Jones, supra, 5 Cal.4th at pages 1149-1152, does not address the imposition of a three-year enhancement pursuant to section 667.5, subdivision (a), as occurred here, its reasoning would apply.) As a result, only the mandatory section 667, subdivision (a)(1), five-year enhancement may be imposed with respect to defendants five prior robbery convictions in case No. GA002847.
Third, the trial court imposed enhancements as to six prior prison terms pursuant to section 667.5, subdivision (b). In fact, defendant served only four separate prior prison terms within the meaning of section 667.5, subdivision (g) in case Nos. GA002847, BA067684, BA099132, and BA143355. The imposition of one enhancement pursuant to section 667, subdivision (a)(1) in case No. GA002847, leaves only three prior prison terms for which three one-year enhancements may be imposed. (People v. Riel (2000) 22 Cal.4th 1153, 1203-1204, 998 P.2d 969; People v. Jones (1998) 63 Cal.App.4th 744, 747; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1669; In re Jones (1994) 27 Cal.App.4th 1032, 1038; People v. Carr (1988) 204 Cal. App. 3d 774, 779, 251 Cal. Rptr. 458.)
Fourth, the enhancements for the prior serious felony and prior prison terms may be imposed only once rather than as to each count as the trial court did in this case. (People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal. Rptr. 567, 679 P.2d 1, overruled on a different point in People v. Ewoldt (1994) 7 Cal.4th 380, 398-401, 867 P.2d 757;People v. Augborne (2002) 104 Cal.App.4th 362, 377.)
Fifth, the section 12022.53, subdivision (b) enhancement as to count 2 should have been imposed as a full 10-year enhancement consecutive to the 25-year-to-life term rather than one-third the midterm, 3 years, 4 months, as the trial court did in this case. The firearm use enhancement is attached to an indeterminate term and is therefore not subject to the determinate sentencing law, including the provisions of section 1170.1, subdivision (a). (People v. Felix (2000) 22 Cal.4th 651, 655-657, 995 P.2d 186; People v. Miles (1996) 43 Cal.App.4th 364, 368-370; People v. Jackson (1993) 14 Cal.App.4th 1818, 1832.)
Defendants sentence is modified as follows. As to count 1, defendant is sentenced to 25 years to life, plus a 10-year enhancement pursuant to section 12022.53, subdivision (b), and a 3-year enhancement pursuant to section 12022.7, subdivision (a). The total count 1 sentence is 38 years to life. As to count 2, defendant is sentenced to 25 years to life, plus a 10-year enhancement pursuant to section 12022.53, subdivision (b). The count 2 sentence is 35 years to life. In addition, defendant is sentenced to five years pursuant to section 667, subdivision (a)(1) and three one-year enhancements pursuant to section 667.5, subdivision (b). Defendants total term is two consecutive indeterminate terms of 38 years to life plus 35 years to life consecutive to 8 years.
The sentence is modified as described in the immediately preceding paragraph. The judgment is affirmed in all other respects. A corrected abstract of judgment is to be forwarded to the Department of Corrections.
We concur: ARMSTRONG, J., MOSK, J.