Filed 2/11/21 P. v. Cabrera CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B299473
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA145880
v.
EDUARDO LLAMAS
CABRERA
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Debra Cole-Hall, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Eduardo Llamas Cabrera was convicted of
attempted murder, robbery, and assault with a deadly weapon
and sentenced to 159 years to life in prison. On appeal, Cabrera
contends: (1) insufficient evidence supports his attempted murder
conviction; (2) the trial court erred in denying his motion to strike
his prior strike convictions; and (3) the court erred in failing to
stay the sentence for his robbery conviction under Penal Code1
section 654. We reject these arguments and affirm.
FACTUAL BACKGROUND
1. Prosecution Evidence
Cabrera approached Manuel Cruz outside a bank in
Huntington Park. Cabrera, who was holding a gun, told Cruz to
hand over his wallet. After Cruz complied, Cabrera told him to
hand over more money. Cruz put his hands in his pockets and
replied that he didn’t have any more. Cabrera became angry,
grabbed Cruz by the neck, and struck Cruz on the left side of the
head with the gun.
Cabrera then started shooting at Cruz. Although the first
shot missed, the second shot struck Cruz in the hip. Cruz fell to
the sidewalk and rolled into the gutter. As Cruz was lying on the
ground, Cabrera shot him several times in the abdomen and
removed a second wallet from Cruz’s pants, which contained no
money. Cabrera then walked toward his car, turned around,
walked back to Cruz, and said, “Now, I’m going to kill you.”
1 All undesignated statutory references are to the Penal Code.
2
Although Cruz couldn’t remember if Cabrera fired another shot, a
witness saw Cabrera shoot Cruz again.
While Cabrera was robbing Cruz, Virginia Monge was in
her car near the bank. Monge watched the altercation until
Cabrera drew his gun and pointed it at her. She then put her car
in reverse, backed into the parking lot, and heard about two
gunshots fired from where Cabrera had been standing. Monge
ran inside the bank and heard two or three more gunshots.
2. Defense Evidence
Cabrera claimed he wasn’t the person who shot Cruz. He
loaned his car to his cousin on the day of the shooting. The cousin
left a gun inside the trunk when he returned the car. The cousin
told Cabrera that he used the gun to take care of a “child
molester.” Cabrera intended to get rid of the gun, so he moved it
to another car. The police later found the gun while Cabrera was
driving that car.
PROCEDURAL BACKGROUND
The People charged Cabrera with attempted murder of
Cruz (§§ 664/187, subd. (a); Count 1); robbery of Cruz (§ 211;
Count 2); and assault with a firearm of Monge (§ 245, subd.
(a)(2); Count 3). The People alleged Cabrera used a firearm
during the commission of each offense (§§ 12022.5, 12022.53,
subds. (b)–(d)), and that he personally inflicted great bodily
injury on Cruz (§ 12022.7, subd. (a)). The People also alleged
Cabrera suffered two prior convictions in February 1999, one for
robbery and one for burglary, both serious or violent felonies
under the Three Strikes law (§§ 667, 1170.12).
Cabrera waived his right to a jury trial. The court found
Cabrera guilty of all three charges. The court also found true the
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firearm, great bodily injury, and prior convictions allegations.
The court sentenced Cabrera to a total term of 159 years to life in
prison, consisting of: 64 years to life for Count 1, plus consecutive
terms of 60 years to life for Count 2 and 35 years to life for Count
3.
DISCUSSION
1. Sufficiency of the Evidence to Support Cabrera’s
Attempted Murder Conviction
Cabrera contends insufficient evidence supports his
conviction for attempted murder. Specifically, he claims the
People failed to prove he had the specific intent to kill Cruz. As
we explain, substantial evidence supports Cabrera’s conviction.
When a defendant claims insufficient evidence supports his
conviction, we review the entire record in the light most favorable
to the judgment to determine whether any rational trier of fact
could have found the evidence proved the elements of the crime
beyond a reasonable doubt. (People v. Manibusan (2013) 58
Cal.4th 40, 87.) We draw all reasonable inferences in favor of the
judgment. (Ibid.) “ ‘ “If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.
[Citations.]” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Thus, before we may set aside the judgment, it must be clear that
“ ‘ “upon no hypothesis whatever is there sufficient evidence to
support” ’ ” the verdict. (People v. Zamudio (2008) 43 Cal.4th 327,
357.)
To support a conviction for attempted murder, the People
must prove the defendant committed a direct but ineffectual act
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with the specific intent to kill his victim. (People v. Lee (2003) 31
Cal.4th 613, 623.) Intent to kill and express malice are the same
thing for purposes of attempted murder. (People v. Smith (2005)
37 Cal.4th 733, 739 (Smith).) To prove express malice, the People
must show the defendant either wanted the victim to die or knew
with substantial certainty that the victim’s death would occur as
a result of the defendant’s actions. (Ibid.)
While motive is not an element of attempted murder, it can
be probative of the defendant’s intent to kill. (Smith, supra, 37
Cal.4th at p. 740.) And because direct evidence of the defendant’s
intent rarely exists, such intent is usually inferred from all the
circumstances surrounding the defendant’s conduct and the
circumstances of the crime. (Id. at p. 741.) For instance, the act of
firing a gun at close range in a way that could inflict a fatal
wound had the bullet hit its intended target is sufficient to
support a finding of intent to kill. (Ibid.) The fact that the victim
survived the defendant’s attack does not, by itself, negate an
inference that the defendant harbored an intent to kill. (Ibid.)
Thus, an inference of intent to kill can be drawn from evidence of
a purposeful shooting with lethal force. (Id. at p. 742.)
Here, the circumstances surrounding the shooting support
a finding that Cabrera intended to kill Cruz. When Cabrera fired
the first shot, Cruz had already complied with Cabrera’s request
to hand over his wallet and any other money he had. Cruz didn’t
try to resist Cabrera or otherwise appear to pose a threat to
Cabrera completing the robbery. It was only after Cabrera
became angry about the amount of money Cruz was carrying that
Cabrera started to shoot. (See Smith, supra, 37 Cal.4th at p. 740
[motive may be probative of intent to kill].)
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Cabrera shot Cruz multiple times at close range. Several of
the shots were fired while Cruz was lying incapacitated on the
ground, and some of them were directed at Cruz’s abdomen,
which certainly could have been, but fortunately were not, fatal.
(People v. Koontz (2002) 27 Cal.4th 1041, 1058, 1082 [defendant
killed victim by shooting him at close range in the abdomen,
which supported a finding that defendant acted with an intent to
kill].) Thus, Cabrera’s act of shooting Cruz at close range in a
manner that could have inflicted a fatal injury is sufficient to
support a finding that Cabrera acted with the intent to kill.
(Smith, supra, 37 Cal.4th at p. 741.)
Cabrera’s intent to kill Cruz is also clear from Cabrera’s
conduct near the end of the encounter. After shooting Cruz
several times, Cabrera started to walk toward his car before
turning around to return to where Cruz was lying on the ground.
Cabrera then stood over Cruz and said, “Now, I’m going to kill
you.” Although Cruz couldn’t remember whether Cabrera fired
another shot at that point, one of the witnesses who watched the
altercation testified that Cabrera fired at least one more shot
before fleeing the scene. Thus, in light of the circumstances
surrounding the shooting, it was more than reasonable for the
court to find Cabrera intended to kill Cruz.
Cabrera argues the court erred in relying on Cruz’s
testimony that Cabrera threatened to kill him before fleeing the
scene. According to Cabrera, Cruz’s testimony was unreliable
because no other witnesses testified they heard Cabrera say he
would kill Cruz. But the testimony of a single witness is
sufficient to establish any fact. (Evid. Code, § 411.) And, as the
trier of fact, the court was in the best position to evaluate Cruz’s
credibility. (People v. Young (2005) 34 Cal.4th 1149, 1181.) We
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therefore won’t second-guess the court’s decision to rely on Cruz’s
testimony in finding Cabrera acted with the intent to kill. (Ibid.
[“In deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts”].)
2. The Court’s Denial of the Romero Motion
Cabrera next contends the court abused its discretion when
it denied his motion to strike his prior strike convictions. As we
explain, this argument lacks merit.
Prior to sentencing, Cabrera asked the court to strike his
prior strike convictions under section 1385 and People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero). The People
opposed the motion. Although Cabrera’s prior strike convictions
were from 1999, the People argued the “calculated” and
“aggressive” manner in which Cabrera committed the underlying
attempted murder, robbery, and assault shows he falls within the
spirit of the Three Strikes law. The court denied Cabrera’s
motion, explaining: “[T]he court heard the testimony. This was a
court trial. And counsel for the defense, your client’s strikes are
from 1999, but the behavior in this case shows the violent nature
of the defendant.”
Under section 1385, the trial court may strike a defendant’s
prior strike convictions. (§1385; Romero, supra, 13 Cal.4th at pp.
529–530.) Before deciding to strike a prior conviction, the court
must consider several factors, including the nature and
circumstances of the current and prior offenses and the
particulars of the defendant’s background, character, and
prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Accordingly, the court’s findings concerning “the nature and
circumstances of a defendant’s triggering offense may play a
significant role in determining the sentence that is actually
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imposed upon the defendant under the Three Strikes law.” (In re
Coley (2012) 55 Cal.4th 524, 560 (Coley).)
While a court must state on the record its reasons for
granting a motion to strike a prior conviction, it is not required to
explain its reasons for denying such a motion. (Coley, supra, 55
Cal.4th at p. 561.) We review a court’s denial of a motion to strike
a prior conviction for abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 378 (Carmony).) The decision not to strike
a prior conviction is an abuse of discretion only when the factors
outlined above “manifestly support the striking of a prior
conviction and no reasonable minds could differ … .” (Ibid.) In
other words, the circumstances “must be extraordinary” for a
defendant with multiple prior strikes to fall outside the “spirit” of
the Three Strikes law. (Ibid.)
Here, the court acted well within its discretion to deny
Cabrera’s motion to strike his prior strike convictions. The court
heard evidence that Cabrera targeted and viciously attacked
Cruz without provocation. Although Cabrera didn’t need to use
violence to accomplish the robbery in this case, he struck Cruz on
the side of the head with a gun, shot Cruz at close range several
times in the leg, hip, and abdomen, and stated he intended to kill
Cruz all because he was unsatisfied with the amount of money
Cruz was carrying.
The court also stated that it considered the fact that
Cabrera’s prior strike convictions occurred about 18 years before
the underlying offenses. It was reasonable for the court to find
the remoteness of the prior convictions was outweighed by the
violent and callous manner in which Cabrera committed the
underlying crimes. That is, the facts of this case demonstrate an
escalating, not deescalating, pattern of violence in Cabrera’s
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conduct since his prior strike convictions. This case, therefore, is
not an “extraordinary” one that falls outside the spirit of the
Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 376.)
3. Imposition of Multiple Sentences Under Section 654
Finally, Cabrera argues the court erred when it did not
stay the sentence on his robbery conviction. According to
Cabrera, the robbery and the attempted murder were part of an
indivisible course of conduct prohibiting the imposition of
multiple sentences under section 654. We disagree.
Under section 654, “An act or omission that is punishable
in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) The
statute applies not only where there was one “act” in the ordinary
sense, but also where an indivisible course of conduct violated
more than one statute. (Neal v. State of California (1960) 55
Cal.2d 11, 19.)
“ ‘It is [the] defendant’s intent and objective, not the
temporal proximity of his offenses, which determine whether the
transaction is indivisible. [Citations.] ... [I]f all of the offenses
were merely incidental to, or were the means of accomplishing or
facilitating one objective, [the] defendant may be found to have
harbored a single intent and therefore may be punished only
once. [Citation.]’ ” (People v. Hicks (1993) 6 Cal.4th 784, 789.) But
where the defendant harbors multiple criminal objectives that
are independent of, and not merely incidental to, each other, he
may be punished for separate violations committed during his
course of conduct, even though the violations shared common acts
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or were part of an otherwise indivisible course of conduct. (People
v. Vazquez (2020) 44 Cal.App.5th 732, 737 (Vazquez).)
A court has broad discretion in determining whether
section 654’s prohibition on multiple punishment applies in any
given case. (Vasquez, supra, 44 Cal.App.5th at p. 737.) A court’s
determination, express or implied, “that two crimes were
separate, involving separate objectives,” under section 654 is a
question of fact we review for substantial evidence. (People v.
Brents (2012) 53 Cal.4th 599, 618.) We review the evidence in the
light most favorable to the judgment and will affirm the court’s
sentencing decision if it is supported by substantial evidence.
(Vasquez, at p. 737.)
Substantial evidence supports the court’s implied finding
that Cabrera harbored separate intents when he robbed and
attempted to kill Cruz. The amount of force Cabrera used during
the attempted murder went far beyond that which was needed to
complete the robbery. As the facts show, Cabrera was able to
obtain Cruz’s first wallet with only the use of fear. Cabrera didn’t
hit or shoot Cruz at that point, and Cruz didn’t struggle to keep
his first wallet. Cabrera only started to shoot Cruz after
becoming angry about the amount of money contained in Cruz’s
wallet.
Cabrera also didn’t need to use additional force to obtain
the second wallet while Cruz was lying on the ground after being
shot in the leg and the abdomen. Nothing in the record indicates
Cruz resisted or otherwise posed any threat to Cabrera
completing the robbery. In any event, as we explained above,
Cabrera clearly harbored a separate intent to kill after he took
Cruz’s property. After shooting Cruz several times, Cabrera
walked to his car while Cruz was incapacitated on the ground,
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turned back, said he was going to kill Cruz, and fired at least one
more shot at Cruz before leaving the scene.
In short, there is ample evidence to support an inference
that Cabrera shot Cruz with the intent kill, not to facilitate the
robbery. The court therefore didn’t abuse its discretion in
imposing multiple punishments for the robbery and attempted
murder.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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