P. v. Reil
Filed 6/19/13 P. v. Reil CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERT LUIS REIL,
Defendant and
Appellant.
G046956
(Super. Ct.
No. 10CF2458)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Daniel McNerney, Judge. Affirmed.
Christopher Nalls, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman
Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted
defendant Robert Luis Reil of conspiracy to commit
subd. (a)(1), 211; all further statutory references are to the Penal Code),
murder with special circumstance that murder was committed during an attempted
robbery, count 2 (§§ 187, 190.2, subd. (a)(17)(A)), and participation in a
criminal street gang, count 3 (§ 186.22, subd. (a)). They also found firearm enhancements
(§ 12022.53, subds. (d), (e)(1)) and gang enhancements (§ 186.22,
subd. (b)). The information also alleged
a strike prior (§ 667, subds. (b)-(i), a serious felony prior (§ 667,
subd. (a)(1)), and three prison prior enhancements (§ 667.5, subd.
(b)). The prior conviction allegations
were dismissed. The court sentenced
defendant to 25 years to life on count 2, 25 years to life for the gun
enhancement for a total of 50 years to life.
The court stayed sentence on counts 1 and 3 and the gang enhancement on
count 2 under section 654.
In his appeal defendant
contends insufficient evidence
supports the conspiracy to commit robbery or the murder count. He also contends the court erred by
instructing the jury that the testimony of his girlfriend required supporting
evidence and in failing to instruct on involuntary manslaughter. The evidence was sufficient and there was no
instructional error. We therefore affirm
the judgment.
FACTS
The crimes were
committed after a multi-day methamphetamine fueled party attended by defendant,
a member of the Orange Varrio Cypress (OVC) street gang, and other members of
the same gang: Joseph Baez and Christian
Galindo. Also present was defendant’s
girlfriend, Amour Villamar, as well as others.
After some time the partiers ran out of methamphetamine. Villamar had been buying drugs from Ezekial
Felix Bernal; she called him and asked to buy an “eight ball,†which would
normally cost $200. She did have $80
that she owed to someone else and of which defendant was not aware. She testified she told Bernal she only had
$80 and that he agreed she could owe him for the balance. None of the others had any money. Baez told his girlfriend Tanya Dominguez they
were going “to come up on something,†which meant they were going to steal the
drugs. Others were present when this
statement was made but Dominguez did not recall who.
Rather than tell Bernal
where the drugs should be delivered, when Bernal called after exiting the
freeway, defendant directed Villamar to tell him to go to a location some
blocks away. Meanwhile, Galindo,
Villamar, Baez, and defendant drove to this location. Baez and defendant both carried guns. When Bernal arrived, Villamar told him to
pull into a driveway. While Bernal’s
vehicle was still moving slowly, Baez shot at the window of Bernal’s
vehicle. Baez then stated “‘what’s up
homey’†and then fired another shot, killing Bernal.
Once Villamar returned
to the car where defendant apparently had remained, he asked her where the
drugs were. When told she did not get
any, he hit the headrest and said “‘this was all for nothing.’†He cursed at Baez, calling him a “‘punk ass
mother fucker.’†Defendant later sold
his gun to pay for a motel room and, after a few days, obtained money from his
grandmother which he used to go to Oregon with Villamar.
DISCUSSION
There was Sufficient Evidence to Support the Conspiracy to Commit
Robbery
Defendant structures his
argument regarding the alleged lack of sufficient evidence by drawing favorable
inferences from the facts. This is not a
method to be used to determine sufficiency of the evidence. We start with the facts: defendant needed methamphetamine; he did not
have money to buy any; his girlfriend had some money which she testified he did
not know about; the money she had was insufficient to pay for the quantity of
methamphetamine they ordered; they did not give the dealer the address where
they were located but sent him to a location some blocks away; they arrived
armed with guns; and they were all members of the same criminal street
gang. From these facts one might infer
that Baez’s shooting of Bernal was totally unexpected. But it is at least as reasonable to infer the
three gang members intended to rob Bernal of the drugs he was carrying.
In reviewing a
sufficiency of the evidence claim, we do not reweigh the evidence or assess the
credibility of witnesses (
60), but examine the entire record and draw all reasonable inferences from the
record in favor of the judgment to determine whether there is reasonable and
credible evidence from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt (People
v. Streeter (2012) 54 Cal.4th 205, 241).
A conspiracy is an
agreement by two or more persons to commit an offense with the specific intent
to commit the elements of the offense, coupled with an overt act by one or more
of the conspirators in furtherance of the conspiracy. (People
v. Jurado (2006) 38 Cal.4th 72, 120.)
“To prove an agreement, it is not necessary to establish the parties met
and expressly agreed; rather, ‘a criminal conspiracy may be shown by direct or
circumstantial evidence that the parties positively or tacitly came to a mutual
understanding to accomplish the act and unlawful design.’†(People
v. Vu (2006) 143 Cal.App.4th 1009, 1025.)
“While mere association does not prove a criminal conspiracy [citation],
common gang membership may be part of circumstantial evidence supporting the
inference of a conspiracy.†(
(1993) 13 Cal.App.4th 12, 20.) Thus, “‘a
conspiracy may be inferred from the conduct, relationship, interests, and
activities of the alleged conspirators before and during the alleged
conspiracy.’†(People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
“The choice of which
inference is to be drawn from the facts, where more than one reasonable
inference is possible, is the function of the jury. [Citation.]
‘It is not the province of the reviewing court to overturn the jury’s
verdict when it is supported by substantial evidence including the reasonable
inferences to be drawn therefrom.’
[Citation.]†(
Cal.2d 27, 51.)
There was Sufficient Evidence to Support the Murder Count
Because this case was
submitted to the jury under the felony murder rule, the evidence of conspiracy
to commit robbery would have to be sufficient to sustain the murder count. Defendant argues that, because the evidence
was insufficient to support the conviction on the conspiracy to commit robbery,
the conviction on the murder count necessarily falls. But, as we explained above, there was
sufficient evidence to support the conspiracy to commit the robbery count. Hence, because the murder occurred in the
course of the attempted robbery, there was sufficient evidence to support that
count.
The Trial Court did not err in Instructing the Jury That the Testimony
of Defendant’s Girlfriend Required Supporting Evidence
Because
Villamar, who was a witness called by the prosecution, was an accomplice to the
murder, the court instructed the jury that supporting evidence would be
required to prove any fact testified to by her.
Defendant contends that, although Villamar was called as a prosecution
witness, he intended to rely on some of her testimony in his defense. The instruction is required to be given where
an accomplice testifies for the prosecution.
The
court properly instructed the jury on Villamar’s status as a potential
accomplice. It read to the jury CALCRIM
No. 334. Initially, the instruction
stated, “[b]efore you may consider the statement or testimony of Amour Villamar
as evidence against the defendant
regarding the crimes, you must decide whether Amour Villamar was an accomplice
to those crimes.†(Italics added.) After defining the term accomplice and
describing what the jury must find to conclude Villamar qualified as such, the
instruction continued as follows: “If
you decide that a witness was not an accomplice, supporting evidence is not required
and you should evaluate her statement or testimony as you would that of any
other witness. [¶] If you decide that a
witness was an accomplice, you may not
convict the defendant of the charged crimes based on her
statement or testimony alone. You may
use the statement or testimony of an accomplice to convict the defendant only if:
[¶] 1. The accomplice’s statement
or testimony is supported by other evidence that you believe. [¶] 2.
That supporting evidence is independent of the accomplice’s statement or
testimony. [And] [¶] 3. The supporting evidence tends to connect the
defendant to the commission of the crimes.â€
(Italics added.) Finally, the
instruction told the jury “[a]ny statement or testimony of an accomplice
should be viewed with caution.†(Italics
added.)
The
instruction declared it was for the jury to determine whether Villamar was an
accomplice. In the event they concluded
she was not, then her testimony was to be treated the same as any other
witness. Even if the jury concluded
Villamar was an accomplice, the italicized portions of the instruction reflect,
the corroboration requirement and caution against relying on her testimony only
applied to her testimony “against†defendant or if her testimony would support
his conviction. Nothing in the
instruction placed such limits on any part of Villamar’s testimony favorable to
defendant.
Defendant’s
reliance on Cool v. United States
(1972) 409 U.S. 100 [93 S.Ct. 354, 34 L.Ed.2d 335] is unavailing. That case reversed a conviction where the
court instructed the jury that the accomplice’s exculpatory testimony had to be
proven true beyond a reasonable doubt before it could be considered. (See People
v. Lawley (2002) 27 Cal.4th 102, 161-162.)
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
