P. v. Vielmas




Filed 12/14/10 P. v. Vielmas CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ABEL RAFAEL VIELMAS, Defendant and Appellant.

B216944 (Los Angeles County Super. Ct. No. VA105380)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dewey Lawes Falcone, Judge. Affirmed in part and reversed in part.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
______________________


A jury found Abel Rafael Vielmas guilty of two counts of attempted extortion, and he subsequently pleaded guilty to a third count. Vielmas appeals, arguing that the evidence was insufficient to establish that he committed attempted extortion, that his convictions violated the prohibition against double jeopardy, and, in the alternative, that the court erred in imposing consecutive sentences on the extortion counts. We reverse Vielmas’s conviction on count 1, and affirm the judgment in all other respects.
BACKGROUND
An information charged Vielmas with four counts of felony attempted extortion (counts 1–4) in violation of Penal Code section 524,^[1] and alleged that each of the counts was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(A) (counts 1–4). The information also alleged that Vielmas had two prior convictions of serious felonies, that he served a prior prison term, and that he did not remain free from custody for a period of five years after the conclusion of the term.^[2]
Vielmas pleaded not guilty. After trial, on May 4, 2009 a jury found Vielmas guilty on counts 1 and 2, and was unable to reach a verdict on counts 3 and 4, as well as the gang allegations. The court declared a mistrial as to counts 3 and 4 and the gang allegations.
On June 2, 2009, the court found true the allegations of two prior convictions. The court sentenced Vielmas to seven years in state prison on count 2 (the high term of three years doubled to six years as a second strike, and a one year prior prison term enhancement), and to a consecutive term of 16 months in state prison on count 1 (one-third of the middle term doubled to 16 months as a second strike). Vielmas pleaded no contest to count 3 and accepted a 16 month consecutive sentence for a total sentence of nine years, eight months. The court dismissed count 4 and the gang allegations. Vielmas filed a timely notice of appeal.
FACTS
At trial, Daniel Savedra testified that at around 10:30 p.m. on April 6, 2008, he was drinking a soft drink at a bar called Barney’s in Hawaiian Gardens. Savedra was friends with the bartender, Randi Kennedy. Also sitting at the bar were a Spanish-speaking man named Mario, the bar’s bouncer, Keith Rollins, and Vielmas. Savedra had never seen Vielmas before.
Vielmas moved to the bar stool next to Savedra, and asked him whether he knew Mario. Savedra replied that he did not know Mario personally, and Vielmas said, “‘Well, I do not like him. Do you want me to kick his ass‌’” Vielmas said he didn’t like the way Mario was looking at him. He got off the bar stool and repeated that he was going to kick Mario’s ass, and said, “‘I just got out of prison.^[3] He doesn’t know where I’m from.’” Savedra managed to calm him down.
Vielmas began to talk to Kennedy, the bartender, and said, “‘I just got out of prison, and you know, I’m going to come and get a cut of this bar now. I just got out of prison, and I’m going to get a cut of this bar,’” adding “‘It was not going to be me. It was going to be somebody else coming to collect at the bar.’” Savedra also described Vielmas’s statement as “‘I’m going to come collect, and you know, you or [sic] tell the owners this, that this was taking place.’” Kennedy looked terrified, and answered “‘You know, I’m not the owners, you know, and let’s play some music.’” She went to the back, saying she would get some change to play the juke box. Savedra got up to go to the bathroom, and Vielmas went to a storage room and opened the door. Kennedy opened the office door and told Savedra that Vielmas was not allowed to go into the storage room, and Savedra told Vielmas not to go inside. Savedra walked Vielmas back to his seat, and Vielmas then went to the men’s room.
Kennedy called Savedra on his cell phone from the office and asked him to come to the office, where she had locked herself in. He went to the office and Kennedy asked him to get Vielmas out of the bar, so when Vielmas returned from the restroom Savedra told him that it was time to leave because the bar was closing up. Savedra also called Keith Rollins, the bouncer, who had left the bar before Vielmas’s statements. Rollins returned in a minute or two.
Rollins told Vielmas it was time to leave and that he was security for the bar. Vielmas said no, he was going to finish his beer, and “‘Do you know who you’re fucking with‌ I just got out of prison’. . . . ‘I’m Clumsy from Hawaiian Gardens, and I’ll fuck you up,’” showing his arms, which were covered with tattoos. Vielmas also said, “‘I’m from the Mexican mafia, and I’ll take you out.’” Rollins said again that it was time to leave, and Vielmas swung at Rollins and hit the side of his face. Savedra bear-hugged Vielmas and escorted him out of the bar, locking the door. Savedra thought that Vielmas had a few beers and was a little tipsy. Kennedy called “Maria the owner of the bar,” and the police came.
Kennedy (the bartender) testified that Maria and Carlos Lechuga were the owners of the bar. She had never seen Vielmas in the bar before the night of April 6, 2008. Vielmas began to yell at Mario, who was singing, and then started to say that he was from the Mexican mafia, that he was coming to collect, and that his homies would be there to collect later. Kennedy was frightened because Vielmas did not appear drunk, and Kennedy thought he was serious. She went into the office, locked the door, and called Maria Lechuga, who called the police. There were video monitors in the office, and she saw Vielmas punch Rollins in the face before Savedra removed Vielmas from the bar. She could not hear what was said after she locked herself into the office, and she did not come out until Vielmas was gone except to call Savedra into the office and tell him to get Vielmas out.^[4]
Rollins (the bouncer) testified that he had worked at Barney’s for about a year before the incident with Vielmas, and the Lechugas had owned the bar for as long as he worked there. Members of the Hawaiian Gardens gang had told Rollins dozens of times that “the Lechugas referring to Maria and Carlos might own the bar, but they run the bar.” On the night of April 6, 2008, he had noticed Vielmas and then left the bar for about a half an hour. He returned after Savedra called to tell him that a man was saying he was there to collect, insinuating that he was with the Mexican mafia. Rollins saw Savedra talking to Vielmas at the rear door of the bar. When Rollins asked Vielmas what the problem was and that he was scaring the bartender, Vielmas replied “‘Fuck that. I’m not leaving until I get my dues. I have been watching this place, and I want my dues,’” and said that he was from Hawaiian Gardens and the Mexican mafia. Rollins told him “‘The owners are on their way down. You have to take that up with them.’” Vielmas wanted to go back into the bar, but Rollins told Vielmas that he was no longer welcome in the bar because he had scared the bartender and the sheriffs were coming. Vielmas answered “‘Fuck the sheriff’s [sic]. I’m the new sheriff in town. I do not give a shit about them.’” Rollins went back into the bar, and Vielmas followed him. When Rollins turned to get Vielmas’s money off the bar, Vielmas punched Rollins in the face. The punch broke one of Rollins’s teeth. Rollins thought Vielmas was not intoxicated. After the incident, Rollins went into the restroom and saw fresh gang graffiti.
Maria Lechuga testified that she and her husband Carlos Lechuga purchased Barney’s in 2006. On the night of April 6, 2008, Maria received a telephone call from Kennedy. Carlos heard Maria say “‘Taxes‌ What kind of taxes‌ What‌’” and asked her what was going on, and Maria told him Kennedy said, a guy at the bar “is saying there’s a new sheriff in town, and he’s here to collect some taxes and there’s new rules or something. This is how it’s going to be.” Maria and Carlos jumped into the car and drove the short distance to the bar, which was empty. A policeman was there, but Vielmas was gone.^[5]
Carlos Lechuga testified that since they bought the bar Maria and he had worked to reduce the gang element at Barney’s. “We have had situations where the gangsters come in, and they become threatening because they even told us that this place was the[irs]. And we said no. It’s our place. We’re going to run it the way we want it. You have to go change your clothing. Otherwise you’re not coming in.” The gang members did not like the increasing number of Mexican customers. Hawaiian Gardens gang members had approached Carlos and Maria offering to provide protection, but they responded “We don’t need protection.” When Kennedy called on April 6, 2008 to say that someone was there demanding “taxes,” Carlos was very upset because “we’re not going to stand for that.”
A gang expert testified that based on the sheriff’s records and Vielmas’s admissions, he believed Vielmas was a member of “barrio Hawaiian Gardens” and Vielmas had Hawaiian Gardens and Mexican mafia tattoos.
DISCUSSION
I. Sufficient evidence does not support Vielmas’s conviction on more than one count of attempted extortion.
Vielmas argues that the evidence was insufficient to support his conviction for attempted extortion of Carlos Lechuga (count 1) and Maria Lechuga (count 2). Our role in reviewing the sufficiency of the evidence is limited. We review “‘the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and or solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170.) We do not reweigh the evidence or redetermine the credibility of the witnesses (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), and we draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) “If the circumstances reasonably justify the [finder of fact’s] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
“Extortion is the obtaining of property from another, with his consent . . . , induced by a wrongful use of force or fear . . . .” (§ 518.) Section 524 provides that attempted extortion is committed when a person attempts “by means of any threat . . . to extort money or other property from another . . . .” “Fear, such as will constitute extortion, may be induced by a threat . . . [t]o do an unlawful injury to the person or property of the individual threatened. . . .” (§ 519, subd. (1).)
“The elements of the crime of attempted extortion are (1) a specific intent to commit extortion and (2) a direct ineffectual act done towards its commission. [Citations.] [¶] There must be ‘“some appreciable fragment of the crime committed [and] it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.”’ [Citations.]” (People v. Sales (2004) 116 Cal.App.4th 741, 749.) “Because extortion is a specific intent crime [citation], guilt depends upon the intent of the person who makes the threat and not the effect the threat has upon the victim [citation].” (People v. Umana (2006) 138 Cal.App.4th 625, 641.)
There was ample evidence that Vielmas had the specific intent to commit extortion. Vielmas made a number of statements that he intended to collect “taxes” or “dues” from the bar owners, and repeatedly stated that he was from the Hawaiian Gardens gang and the Mexican mafia.
Vielmas argues that he only indicated his intent to commit extortion in the future. Savedra testified that Vielmas stated “I’m going to come collect” and you “tell the owners this.” Kennedy testified that Vielmas stated that he was coming to collect and that his homies would come to collect later. There was also evidence, however, that Vielmas made an immediate demand. Rollins testified that after he returned to the bar (after Kennedy had locked herself in the office and called the bar owners), Vielmas stated, “I’m not leaving until I get my dues. I have been watching this place, and I want my dues.” When Rollins told Vielmas the owners were on their way, Vielmas refused to leave and wanted to come back into the bar. This evidence, viewed in the light most favorable to the guilty verdict, supports the conclusion that Vielmas committed an “appreciable fragment” of the crime of extortion and was thwarted by circumstances beyond his control. (See People v. Sales, supra, 116 Cal.App.4th at 749.)
Vielmas also argues that the evidence shows only that he attempted to extort money from Rollins. We disagree. Testimony established that Vielmas told Kennedy to tell the owners he was going to collect, Kennedy then called the owners and told Maria Lechuga that Vielmas said he was going to collect, and Rollins told Vielmas he would have to take up the collection issue with the owners.^[6] This evidence supports a conclusion that Vielmas had the intent to extort money from the owners, not Rollins.
We conclude, however, that the evidence was insufficient to support Vielmas’s conviction on two counts of attempted extortion, one against Maria and one against Carlos. “Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. [Citation.]” (People v. Bailey (1961) 55 Cal.2d 514, 519.) A defendant can only be convicted of one offense where “the evidence established that there was only one intention, one general impulse, and one plan.” (Ibid.; People v. Neder (1971) 16 Cal.App.3d 846, 852, fn.1.) This principle applies to theft-related crimes, in which “the essential act . . . is taking. If a certain amount of money or property has been taken pursuant to one plan, it is most reasonable to consider the whole plan rather than to differentiate each component part.” (Neder, at p. 852.) The same principle applies to extortion, which is also a crime against property. (In re Coffey (1899) 123 Cal. 522, 525.)
The evidence demonstrated that over the course of his actions in the bar, Vielmas had only one intention, one general impulse, and one plan in attempting to extort “taxes” from the owners of Barneys. In fact, although there was some evidence that Vielmas may have known that the bar had two owners, there was no evidence that he engaged in wrongful acts against Maria and Carlos separately. The only contact with Maria and Carlos during Vielmas’s attempt at extortion occurred in the single telephone call from Kennedy, the bartender, following Vielmas’s statement that he was coming to collect. The simple fact that the bar had two owners does not justify artificially splitting the attempted extortion, accomplished pursuant to a single intention, impulse, and plan, into two separate counts for separate conviction and sentencing.^[7] We therefore reverse the conviction on count 1 (attempted extortion of Carlos).^[8]
DISPOSITION
The conviction on count 1 is reversed. In all other respects, the judgment is affirmed. The court shall amend the abstract of judgment accordingly, and forward the amended abstract to the California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.

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