Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA302043. Michael M. Johnson, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
MALLANO, P. J.
Defendant Emilio Argueta appeals from the judgment entered following a jury trial in which he was convicted of first degree, special circumstance murder; robbery; and two counts of attempted robbery. Defendant contends the evidence was insufficient to support his two attempted robbery convictions. We affirm.
BACKGROUND
About 3:15 a.m. on February 4, 2006 (all date references pertain to 2006), the car driven by Jennifer Seo struck a car driven by Walter Gonzalez. They parked their cars in a parking lot at Serrano and Sixth Street. Han Jung went to the parking lot at the request of Seo’s boyfriend to assist her. Seo was arranging to pay Gonzalez for the damage to his car. As they stood in the parking lot, a white car drove up and the three young Latino men got out. One of the young men was heavier than the other two. The heavier man and one of the other two held guns. The driver remained in the car. The three young men walked up to Jung, Seo, and Gonzalez and someone demanded Jung’s necklace. The heavier man yanked the necklace off of Jung’s neck. Jung could not see what was happening with Seo, Gonzalez, and the other two Latino men, who were behind him. Jung did not see whether any property was taken from Seo. Jung then handed one of the thinner men his wallet, and the man went through Jung’s pockets.
Gonzalez attempted to run away. One of the thinner men grabbed Gonzalez’s shirt. Gonzalez was able to run about 14 feet before the heavyset man fired five shots at Gonzalez, four of which struck him. The young Latino men got back in the car, which drove away. Gonzalez died from his gunshot wounds.
The parties stipulated that Seo was intoxicated at the time of the charged crimes and was unable to provide any information regarding the crimes or those who had committed them.
Less than three hours later, defendant used one of the credit cards contained in Jung’s stolen wallet to buy gasoline. The police examined footage from the gas station’s video cameras to obtain a description of the car, which they located on February 16. The car was registered to defendant’s father. On April 27, the police questioned defendant about using Jung’s credit card. Defendant said he received the card from a friend and used it to put gasoline in his father’s car.
The police arrested defendant and placed him and another man in a cell equipped with a hidden recording device. The resulting surreptitiously recorded statement was played at trial. Defendant described his “case” for his cellmate: “We did a robbery. We were doing the robbery. They had an accident. So they were parked at the accident. They were parked in the parking lot. We pulled up and went into a [inaudible]. ‘Give me the money, give me the money!’ And after we start I see a wetback. He’s looking at me. [¶] He’s like, ‘The people here are Mara Salvatrucha. Why are you robbing me?’ [¶] He said he knows we’re the mara. [¶]... [¶]... This is my neighborhood. [¶]... He thought it was mara. Or something. This is my neighborhood and shit. What the fuck you coming to rob me? [¶] We’re like what? The other fools just looked at him and [inaudible] pop pop (laughing).” Defendant continued, “Then we come up on the other chino, ‘hey bitch.’” The cellmate asked if defendant threatened “him.” Defendant replied, “We threaten him, um... [inaudible] fucked up, fucked up. They got me on camera at the gas station.”
The police questioned defendant again on May 1, and a redacted videotape of that interview was played at trial. During this interview, the officers played for defendant the surreptitiously recorded conversation defendant previously had with his cellmate. Defendant initially denied it was him on the tape. He then told the officers he was at the scene of the charged crimes with three other men, but he was not armed and was not the shooter. Defendant said two of his companions had guns. Defendant stated, “We saw people right there—and we were gonna rob them.” The officer asked who defendant saw. He replied, “A parked car, a valet and whatever, a parking lot. There were some Koreans that looked drunk or something.” Defendant said he got out of the car and “I took did whatever they told me to do, you know.” The officer asked, “And they told you to take something?” Defendant responded, “To take everything, whatever. Because they were holding—” After an interruption by the officer, defendant continued, “I was collecting.” Defendant said one of his cohorts fired shots as defendant and the other man were getting back in the car after they had completed the robbery. Defendant did not know why the shots were fired, saying, “They had already got everything.” Someone in the car asked the shooter why he fired shots and defendant said to the shooter, “[W]e got everything already. No one was there—you know.” Someone in the car said the victim “claimed Mara.” When asked about the people he “got the property from,” defendant replied, “[I]t was a girl and a guy. [¶]... [¶]... And the victim.” The officer stated, “And the victim, the Mexican.” Defendant did not respond.
The jury convicted defendant of first degree murder, with a robbery murder special circumstance finding, second degree robbery (with respect to Jung), and two counts of attempted robbery (with respect to Seo and Gonzalez). The jury found that in the commission of each offense a principal personally and intentionally fired a gun, causing death or great bodily injury (Pen. Code, § 12022.53, subds. (d) & (e); all further statutory references pertain to the Penal Code unless otherwise specified), but the jury could not reach a verdict on the gang allegation as to any count, which precluded imposition of the firearm enhancement. The court declared a mistrial with respect to the gang allegation, which the prosecutor apparently decided not to retry. The court sentenced defendant to life in prison without possibility of parole.
DISCUSSION
Defendant contends that his attempted robbery convictions must be reversed because there was no evidence of an attempt to rob Seo or Gonzalez.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303.)
A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 561.)
Robbery is defined as the taking of personal property of some value, however slight, from a person or the person’s immediate presence by means of force or fear, with the intent to permanently deprive the person of the property. (§ 211; People v. Marshall (1997) 15 Cal.4th 1, 34.)
An attempt to commit a crime occurs when the perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act toward its commission. (§ 21a; People v. Medina (2007) 41 Cal.4th 685, 694.) The direct, ineffectual act must show that the perpetrator is putting his or her plan into action, but need not be the last proximate or ultimate step toward the commission of the target crime. (People v. Bonner (2000) 80 Cal.App.4th 759, 764.)
Although the record included no statements or testimony by Seo or Gonzalez, substantial evidence supported defendant’s convictions of attempting to rob them. Defendant told the police that he and his cohorts “saw people right there—and we were gonna rob them.” He described the victims as “a valet and... some Koreans that looked drunk or something.” Defendant was supposed to “take everything” and began to explain, “[b]ecause they were holding” before one of the interrogating officers interrupted him. Defendant told his cellmate that defendant and his cohorts went up to the victims and shouted, “Give me the money, give me the money!” In combination with Jung’s testimony that Seo was arranging to pay Gonzalez money for the damage she had inflicted upon his car and defendant’s impression that Gonzalez was a parking valet, the jury reasonably could infer that either Seo or Gonzalez was holding cash, which defendant and his cohorts demanded when they approached the victims. Whether or not they obtained such money, their demand for it at gunpoint constituted an attempted robbery. In addition, defendant repeatedly told the police that his group had already gotten “everything” when his accomplice began shooting. Defendant further told the police that he “got the property from” “a girl and a guy. [¶]... [¶]... And the victim,” apparently referring to Gonzalez. This admission was consistent with defendant’s admission that his group intended to rob the people they saw and Jung’s testimony that two of the men in defendant’s group were behind him with Seo and Gonzalez while the heavyset man was taking Jung’s necklace. Although Jung could not see what was going on among Seo, Gonzalez, and the two men, the jury reasonably could infer from defendant’s statements that the two men were robbing or attempting to rob Seo and Gonzalez. With respect to Gonzalez, this inference was strengthened by defendant’s statements to his cellmate, which indicated that Gonzalez thought that defendant’s group was trying to rob him. In addition, Jung testified that one of the members of defendant’s group tried to prevent Gonzalez from leaving by grabbing his shirt when he first began to run away. The jury could infer from Gonzalez’s statements, as reported by defendant, and the effort to prevent his departure that the group either took or attempted to take property from Gonzalez. Accordingly, ample evidence supports defendant’s convictions for attempting to rob Seo and Gonzalez.
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.