People v. Buenrostro CA4/3

Filed 3/16/22 P. v. Buenrostro CA4/3 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G058813

v. (Super. Ct. No. 18CF0617)

VICTOR BUENROSTRO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed in part, reversed in part, and remanded with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Melissa Mandel, Assistant Attorneys General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.

This case comes to us on transfer from the California Supreme Court. After we affirmed the judgment committing appellant to prison for 28 years, the Supreme Court granted his petition for review and ordered us to vacate our decision and reconsider the matter in light of various sentencing laws that became effective on January 1, 2022. Given these new laws, we agree with the parties that appellant is entitled to be resentenced. Therefore, we vacate our prior opinion in People v. Buenrostro (Sept. 14, 2021, G058813) [nonpub. opn.], reverse appellant’s sentence, and remand the matter for a new sentencing hearing. However, we remain convinced appellant’s arguments regarding the sufficiency of the evidence and the introduction of certain evidence lack merit. Therefore, we affirm the judgment in all other respects. FACTS Around 10:45 p.m. one evening, Maria L. and Goly T. were standing by Maria’s car in the parking lot of a Santa Ana strip mall. A homeless man named Ricardo was sitting nearby, under a tree, and his bicycle was leaning up against a van on the other side of the parking lot. Appellant, then age 21, was over by the bike, seemingly oblivious to Ricardo. But when appellant got on the bike, Ricardo called out “Hey, that’s my bike” and started hurrying toward him. Appellant responded by getting off the bike, pulling out a gun and pointing it at Ricardo. Seeing the gun, Maria and Goly ducked behind Maria’s car. From that vantage point, Maria could see Ricardo and appellant fighting. They went at it for about 20 seconds before the gun went off and Ricardo fell to the ground. Appellant fled the scene, without the bike. Maria and Goly ran into a nearby building, and when they returned to the scene a few minutes later, they saw Ricardo lying on top of the gun. He survived the single gunshot wound to his chest, but he was unavailable for trial. Because the parking lot was dimly lit Maria and Goly did not get a clear look at appellant. When the police showed them a six-pack lineup containing appellant’s 2