Opinion
C054914 C054916
7-22-2008
THE PEOPLE, Plaintiff and Respondent, v. FREDRICK ANDERSON, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. DAVID BUSTAMANTE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN RANGEL, Defendant and Appellant.
Not to be Published
ORDER MODIFYING OPINION AND DENYING BUSTAMANTES PETITION FOR REHEARING
THE COURT:
It is ordered that the opinion filed herein on July 3, 2008, be modified in the following particulars:
1. At page 2, delete the first two full paragraphs, beginning "During a 48-hour crime spree," and replace them with the following, so that the paragraphs now read (fns. 1 & 2 remain the same):
During a 48-hour crime spree, defendants Fredrick Anderson, David Bustamante and Christian Rangel robbed multiple victims at various locations. Rangels brother, Miguel Rangel, Jr., who was involved in one of the robberies, pleaded no contest to armed robbery (count 1), and his motion to sever was granted. He was sentenced separately and is not an appellant herein. Anderson was convicted of five counts of robbery (Pen. Code, § 211) and one count of robbery while acting in concert with others (§ 213, subd. (a)(1)(A)) while personally armed with a firearm (§ 12022, subd. (a)(1)). Bustamante was convicted of four counts of robbery and one count of robbery in concert, all while personally armed with a firearm. The jury also found that Anderson and Bustamante each had one prior strike. (§§ 211, 667, subd. (a), (b)-(i), 1170.12.)
Undesignated statutory references are to the Penal Code.
In a separate trial, Rangel was convicted of seven counts of robbery (§§ 211, 213, subd. (a)(1)(A)) with true findings that he was personally armed with or personally used a firearm (§§ 12022, subd. (a)(1), 12022.53, subd. (b)).
Rangel was a juvenile at the time of the charged offenses, but was tried separately as an adult pursuant to Welfare and Institutions Code section 707, subdivision (d)(2)(B).
2. At pages 3 to 4, delete the first two full paragraphs under part A. of the Factual Background, subheading, "March 16 Wu robbery", so that the subheading and paragraphs now read (fns. 3 & 4 remain the same):
March 16 Wu robbery
At approximately 10:00 p.m. on March 16, 2006, Ronald Wu went to use the Wells Fargo ATM located at Howe and University Avenue in Sacramento. As he stood in front of the machine, Wu heard someone approach and turned to see a gunman (later identified as Rangels brother), pointing a gun at him. Rangel followed his brother to the ATM while Anderson (the driver) waited in the car. As Wu fumbled through his wallet, Rangels brother said," Get it now. I will shoot you. I will kill you now." Rangel said, "This guy is too slow. Shoot him now. We need to go." Rangels brother then struck Wu in the back of his head. Wu finally managed to withdraw $200 from the ATM and handed it over to the robbers, along with his drivers license. Rangels brother threatened to kill Wu and his family if he called the police or canceled the ATM card. Rangel and his brother then got into the car driven by Anderson, who was waiting for them in the parking lot, and drove off.
All further calendar references are to the year 2006.
Six days after the robbery, Sacramento City Police Detective Sheila Bergquist interviewed Anderson in jail. After waiving his Miranda rights, Anderson stated that around 10:00 p.m. on March 16, he picked up two of his friends in his mothers 1991 gray Acura Legend and drove them to a Wells Fargo ATM on Howe and University Avenue. He saw both friends go up to a man using the ATM, knew that some "criminal activity" had occurred, and drove away with them. Anderson identified Rangel and his brother from surveillance photos as the friends he had picked up.
Miranda v. Arizona (1966) 384 U.S. 436 .
3. At page 8, delete the first two full paragraphs, beginning "Here, Andersons admission", and replace them with the following, so that the paragraphs now read:
Here, Andersons admission to Detective Bergquist that he drove his "friends" Rangel and his brother to the bank in his mothers Acura Legend placed him at the scene of the Wu robbery as the driver of the getaway car. The next day Anderson and Rangel, two of the identified perpetrators of the Wu robbery, along with Bustamante and a female, were stopped driving a similar Acura Legend containing loot stolen from two subsequent robberies.
The jury could find from this evidence that, contrary to Andersons denial of criminal intent, he was in league with the other robbers throughout the crime spree, and in fact willingly served as the getaway driver during the Wu robbery. Andersons claim of insufficient evidence must be rejected.
This modification does not effect a change in the judgment. Bustamantes petition for rehearing is denied.
BY THE COURT:
SCOTLAND, P. J.
DAVIS, J.
BUTZ, J.