Filed 6/19/13 P. v. Reil CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046956

               v.                                                      (Super. Ct. No. 10CF2458)

ROBERT LUIS REIL,                                                      OPINION

     Defendant and Appellant.


                    Appeal from a judgment of the Superior Court of Orange 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
robbery, count 1 (Pen. Code, §§ 182, 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

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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


1. 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

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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 (People v. Albillar (2010) 51 Cal.4th 47,
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.” (People v. Superior Court (Quinteros) (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

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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.]” (People v. Sweeney (1960) 55 Cal.2d 27, 51.)


2. 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.


3. 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

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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.” (Italics
added.) Finally, the instruction told the jury “[a]ny statement or testimony of an
accomplice that tends to incriminate the defendant 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.)




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                                  DISPOSITION


            The judgment is affirmed.




                                            RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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