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The People v. Ruben Rene Amperano

September 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RUBEN RENE AMPERANO, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court for Los Angeles County, Philip H. Hickok, Judge. (Los Angeles County Super. Ct. No. VA106782)

The opinion of the court was delivered by: Willhite, Acting P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

Defendant Ruben Rene Amperano appeals from a judgment sentencing him to 50 years to life in prison, after a jury found him guilty of attempted premeditated murder (Pen. Code,*fn1 §§ 664/187, subd. (a)) and shooting at an inhabited dwelling (§ 246), and found to be true allegations that defendant committed both crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that defendant personally fired a handgun. Defendant contends there was insufficient evidence that he intended to kill the victim identified in the information and the verdict form. He also asks us to review the materials produced pursuant to his Pitchess*fn2 motion to determine whether the trial court followed the procedures set forth in People v. Mooc (2001) 26 Cal.4th 1216. We affirm the judgment.

BACKGROUND

On June 22, 2008, Anita Rodriguez and her son Luis Garcia, a deputy with the Los Angeles County Sheriff's Department, found graffiti scrawled on the side of their house on Keith Drive in Whittier and on Garcia's car parked in front of the house. Garcia recognized the graffiti as tagging by a gang in the neighborhood, the Dead End Locos.

Two weeks later, on the evening of July 6, 2008, Rodriguez was home alone, asleep on the sofa in the living room. The television was on, but the lights were off. Shortly after 11:00 p.m., she heard a couple of pops and felt a stabbing pain in the back of her neck. She rolled off the sofa onto the floor, grabbed a telephone, and called 911. She had been shot. A deputy who responded to the 911 call found three entry bullet holes on the southeast-facing window of Rodriguez's house, four entry bullet holes on the southwest-facing window, four .380 caliber casings below the southwest-facing window, and several bullet projectiles or fragments inside the house.

Four days later, while conducting a search of defendant's apartment, a deputy found a loaded .22 caliber revolver and ammunition. The deputy arrested defendant and impounded his vehicle, a gold Ford Explorer.*fn3 Detective Hank Ortega subsequently searched the vehicle, and found a live .22 caliber round, materials with gang writing, and a newspaper with a story about the shooting.

Detective Ortega and his partner, Detective John Clark, interviewed defendant. Defendant admitted that the gun found in his apartment was his, and that he was involved in the shooting on Keith Drive, but he said he shot at the wrong house. He told the detectives that he was from the Dead End Locos gang, and was called Sharky. The night before the shooting, he had passed by the house and saw a lot of people in front, two of whom he recognized from when they beat him up. The people who jumped him were FMK members, and he thought the house was a FMK gang house.*fn4 On the night of the shooting, defendant said he drove to the area and parked nearby. He walked up to the window on the Sorensen Avenue side (the east side) of the house and fired two rounds. He told the detectives that he did not see anyone inside the house because there were no lights on inside; only the front porch light was on. He said he just intended to shoot a window out, and did not know that anyone had been hit until he saw it on the news. He also said that he went to the house alone. When the detectives challenged that, telling him there was evidence that shots were also fired into the window on the west side of the house, he denied firing those shots, and continued to deny there was anyone with him. Later, he conceded that he did hear shots being fired at the other window, but he did not see who was firing.

Defendant was charged by information with two counts: attempted premeditated murder of Anita Rodriguez (§§ 664/187, subd. (a)) and shooting at an inhabited dwelling (§ 246). The information also alleged that the crimes were committed for the benefit of a street gang (§ 186.22, subds. (b)(1)(C) and (b)(4)), that defendant personally used and discharged a firearm (§ 12022.53, subds. (b) and (c)), and that defendant suffered a prior conviction under the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and served a prior prison term (§ 667.5, subd. (b)).*fn5

Before trial, defendant filed a Pitchess motion seeking materials that relate to accusations and/or evidence that the detectives who interviewed him, Detectives Ortega and Clark, have engaged in acts of dishonesty, coercive interrogation tactics, or other acts of misconduct. The trial court (Judge Lori Ann Fournier, presiding) granted an in camera hearing based upon defendant's allegation that threats were made. The court stated that defendant would be entitled to discover any complaints against Detective Clark related to threats made, as well as complaints related to dishonesty, perjury, fabrication, or false police reports, since he was the author of the report at issue in the present case. As to Detective Ortega, the court stated that defendant was entitled only to complaints related to threats made. The court conducted an in camera hearing and ordered the disclosure of two complaints.

Defendant also joined in a co-defendant's pretrial motion to dismiss the attempted murder count under section 995. At the hearing on that motion, defendant's counsel argued that defendant could not be charged with attempted murder because there was no evidence that he intended to kill Rodriguez. The prosecutor responded that one could infer from evidence that defendant fired multiple shots into a house, in the context of a gang feud, that defendant intended to kill whoever was present in the house. The trial court denied the motion to dismiss, saying that defendant's admission that he shot into a house where he believed rival gang members lived was sufficient evidence to support the magistrate's ruling to hold defendant to answer for the attempted murder charge.

In his opening statement at trial, defendant's counsel conceded that the evidence would show that defendant shot into the house and that he had associations with the Dead End Locos gang, but maintained that the evidence would not show that he intended to kill anyone or that the shooting was intended to benefit the gang. As part of the People's case in chief, the prosecutor played an audio recording of the detectives' interview of defendant, in which defendant admitted that he shot into a house he believed to be an FMK house, and presented testimony by an expert witness regarding the Dead End Locos gang, its rivalry with FMK, and gang culture. Defendant did not present an affirmative defense.

The jury was instructed that two elements must be proved to establish attempted murder: "1. A direct but ineffectual act was done by one person towards killing another human being; and [ΒΆ] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." The prosecutor discussed those elements in his closing argument, saying that defendant's intent to kill was established by the fact that he shot through the window into a room where the television was on, at the one place where someone who was sitting or lying down could be killed. Defense counsel argued in his closing argument that the mere act of shooting into the house was insufficient to establish attempted murder, and that there must be evidence that ...


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