Filed 2/11/21 P. v. Cabrera CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO LLAMAS 

CABRERA

Defendant and Appellant.

B299473

Los Angeles County

Super. Ct. No. VA145880

APPEAL from a judgment of the Superior Court of Los

Angeles County, Debra Cole-Hall, Judge. Affirmed.

Cynthia L. Barnes, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Heidi Salerno, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Defendant Eduardo Llamas Cabrera was convicted of 

attempted murder, robbery, and assault with a deadly weapon

and sentenced to 159 years to life in prison. On appeal, Cabrera

contends: (1) insufficient evidence supports his attempted murder 

conviction; (2) the trial court erred in denying his motion to strike 

his prior strike convictions; and (3) the court erred in failing to 

stay the sentence for his robbery conviction under Penal Code1

section 654. We reject these arguments and affirm.

FACTUAL BACKGROUND

1. Prosecution Evidence

Cabrera approached Manuel Cruz outside a bank in 

Huntington Park. Cabrera, who was holding a gun, told Cruz to 

hand over his wallet. After Cruz complied, Cabrera told him to 

hand over more money. Cruz put his hands in his pockets and

replied that he didn’t have any more. Cabrera became angry, 

grabbed Cruz by the neck, and struck Cruz on the left side of the 

head with the gun. 

Cabrera then started shooting at Cruz. Although the first 

shot missed, the second shot struck Cruz in the hip. Cruz fell to 

the sidewalk and rolled into the gutter. As Cruz was lying on the 

ground, Cabrera shot him several times in the abdomen and 

removed a second wallet from Cruz’s pants, which contained no 

money. Cabrera then walked toward his car, turned around, 

walked back to Cruz, and said, “Now, I’m going to kill you.” 

1 All undesignated statutory references are to the Penal Code. 
3

Although Cruz couldn’t remember if Cabrera fired another shot, a 

witness saw Cabrera shoot Cruz again.

While Cabrera was robbing Cruz, Virginia Monge was in 

her car near the bank. Monge watched the altercation until 

Cabrera drew his gun and pointed it at her. She then put her car 

in reverse, backed into the parking lot, and heard about two 

gunshots fired from where Cabrera had been standing. Monge 

ran inside the bank and heard two or three more gunshots.

2. Defense Evidence

Cabrera claimed he wasn’t the person who shot Cruz. He 

loaned his car to his cousin on the day of the shooting. The cousin 

left a gun inside the trunk when he returned the car. The cousin 

told Cabrera that he used the gun to take care of a “child

molester.” Cabrera intended to get rid of the gun, so he moved it 

to another car. The police later found the gun while Cabrera was 

driving that car. 

PROCEDURAL BACKGROUND

The People charged Cabrera with attempted murder of 

Cruz (§§ 664/187, subd. (a); Count 1); robbery of Cruz (§ 211; 

Count 2); and assault with a firearm of Monge (§ 245, subd. 

(a)(2); Count 3). The People alleged Cabrera used a firearm

during the commission of each offense (§§ 12022.5, 12022.53, 

subds. (b)–(d)), and that he personally inflicted great bodily 

injury on Cruz (§ 12022.7, subd. (a)). The People also alleged 

Cabrera suffered two prior convictions in February 1999, one for 

robbery and one for burglary, both serious or violent felonies 

under the Three Strikes law (§§ 667, 1170.12).

Cabrera waived his right to a jury trial. The court found 

Cabrera guilty of all three charges. The court also found true the 
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firearm, great bodily injury, and prior convictions allegations.

The court sentenced Cabrera to a total term of 159 years to life in 

prison, consisting of: 64 years to life for Count 1, plus consecutive 

terms of 60 years to life for Count 2 and 35 years to life for Count 

3.

DISCUSSION

1. Sufficiency of the Evidence to Support Cabrera’s 

Attempted Murder Conviction

Cabrera contends insufficient evidence supports his 

conviction for attempted murder. Specifically, he claims the 

People failed to prove he had the specific intent to kill Cruz. As 

we explain, substantial evidence supports Cabrera’s conviction. 

When a defendant claims insufficient evidence supports his 

conviction, we review the entire record in the light most favorable 

to the judgment to determine whether any rational trier of fact 

could have found the evidence proved the elements of the crime 

beyond a reasonable doubt. (People v. Manibusan (2013) 58 

Cal.4th 40, 87.) We draw all reasonable inferences in favor of the 

judgment. (Ibid.) “ ‘ “If the circumstances reasonably justify the 

trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a 

contrary finding does not warrant a reversal of the judgment. 

[Citations.]” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508.)

Thus, before we may set aside the judgment, it must be clear that 

“ ‘ “upon no hypothesis whatever is there sufficient evidence to 

support” ’ ” the verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 

357.)

To support a conviction for attempted murder, the People 

must prove the defendant committed a direct but ineffectual act 
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with the specific intent to kill his victim. (People v. Lee (2003) 31 

Cal.4th 613, 623.) Intent to kill and express malice are the same 

thing for purposes of attempted murder. (People v. Smith (2005) 

37 Cal.4th 733, 739 (Smith).) To prove express malice, the People 

must show the defendant either wanted the victim to die or knew 

with substantial certainty that the victim’s death would occur as 

a result of the defendant’s actions. (Ibid.)

While motive is not an element of attempted murder, it can 

be probative of the defendant’s intent to kill. (Smith, supra, 37 

Cal.4th at p. 740.) And because direct evidence of the defendant’s 

intent rarely exists, such intent is usually inferred from all the 

circumstances surrounding the defendant’s conduct and the 

circumstances of the crime. (Id. at p. 741.) For instance, the act of 

firing a gun at close range in a way that could inflict a fatal 

wound had the bullet hit its intended target is sufficient to 

support a finding of intent to kill. (Ibid.) The fact that the victim 

survived the defendant’s attack does not, by itself, negate an 

inference that the defendant harbored an intent to kill. (Ibid.) 

Thus, an inference of intent to kill can be drawn from evidence of 

a purposeful shooting with lethal force. (Id. at p. 742.)

Here, the circumstances surrounding the shooting support 

a finding that Cabrera intended to kill Cruz. When Cabrera fired 

the first shot, Cruz had already complied with Cabrera’s request 

to hand over his wallet and any other money he had. Cruz didn’t 

try to resist Cabrera or otherwise appear to pose a threat to 

Cabrera completing the robbery. It was only after Cabrera 

became angry about the amount of money Cruz was carrying that 

Cabrera started to shoot. (See Smith, supra, 37 Cal.4th at p. 740 

[motive may be probative of intent to kill].)
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Cabrera shot Cruz multiple times at close range. Several of 

the shots were fired while Cruz was lying incapacitated on the 

ground, and some of them were directed at Cruz’s abdomen, 

which certainly could have been, but fortunately were not, fatal. 

(People v. Koontz (2002) 27 Cal.4th 1041, 1058, 1082 [defendant 

killed victim by shooting him at close range in the abdomen, 

which supported a finding that defendant acted with an intent to 

kill].) Thus, Cabrera’s act of shooting Cruz at close range in a 

manner that could have inflicted a fatal injury is sufficient to 

support a finding that Cabrera acted with the intent to kill. 

(Smith, supra, 37 Cal.4th at p. 741.)

Cabrera’s intent to kill Cruz is also clear from Cabrera’s 

conduct near the end of the encounter. After shooting Cruz 

several times, Cabrera started to walk toward his car before 

turning around to return to where Cruz was lying on the ground. 

Cabrera then stood over Cruz and said, “Now, I’m going to kill 

you.” Although Cruz couldn’t remember whether Cabrera fired 

another shot at that point, one of the witnesses who watched the 

altercation testified that Cabrera fired at least one more shot 

before fleeing the scene. Thus, in light of the circumstances 

surrounding the shooting, it was more than reasonable for the 

court to find Cabrera intended to kill Cruz.

Cabrera argues the court erred in relying on Cruz’s 

testimony that Cabrera threatened to kill him before fleeing the 

scene. According to Cabrera, Cruz’s testimony was unreliable 

because no other witnesses testified they heard Cabrera say he 

would kill Cruz. But the testimony of a single witness is 

sufficient to establish any fact. (Evid. Code, § 411.) And, as the 

trier of fact, the court was in the best position to evaluate Cruz’s 

credibility. (People v. Young (2005) 34 Cal.4th 1149, 1181.) We 
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therefore won’t second-guess the court’s decision to rely on Cruz’s 

testimony in finding Cabrera acted with the intent to kill. (Ibid. 

[“In deciding the sufficiency of the evidence, a reviewing court 

resolves neither credibility issues nor evidentiary conflicts”].)

2. The Court’s Denial of the Romero Motion

Cabrera next contends the court abused its discretion when 

it denied his motion to strike his prior strike convictions. As we 

explain, this argument lacks merit. 

Prior to sentencing, Cabrera asked the court to strike his 

prior strike convictions under section 1385 and People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497 (Romero). The People 

opposed the motion. Although Cabrera’s prior strike convictions

were from 1999, the People argued the “calculated” and 

“aggressive” manner in which Cabrera committed the underlying 

attempted murder, robbery, and assault shows he falls within the 

spirit of the Three Strikes law. The court denied Cabrera’s

motion, explaining: “[T]he court heard the testimony. This was a 

court trial. And counsel for the defense, your client’s strikes are 

from 1999, but the behavior in this case shows the violent nature 

of the defendant.”

Under section 1385, the trial court may strike a defendant’s 

prior strike convictions. (§1385; Romero, supra, 13 Cal.4th at pp.

529–530.) Before deciding to strike a prior conviction, the court 

must consider several factors, including the nature and 

circumstances of the current and prior offenses and the 

particulars of the defendant’s background, character, and 

prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) 

Accordingly, the court’s findings concerning “the nature and 

circumstances of a defendant’s triggering offense may play a 

significant role in determining the sentence that is actually 
8

imposed upon the defendant under the Three Strikes law.” (In re 

Coley (2012) 55 Cal.4th 524, 560 (Coley).)

While a court must state on the record its reasons for 

granting a motion to strike a prior conviction, it is not required to 

explain its reasons for denying such a motion. (Coley, supra, 55 

Cal.4th at p. 561.) We review a court’s denial of a motion to strike 

a prior conviction for abuse of discretion. (People v. Carmony

(2004) 33 Cal.4th 367, 378 (Carmony).) The decision not to strike

a prior conviction is an abuse of discretion only when the factors 

outlined above “manifestly support the striking of a prior 

conviction and no reasonable minds could differ ... .” (Ibid.) In 

other words, the circumstances “must be extraordinary” for a 

defendant with multiple prior strikes to fall outside the “spirit” of 

the Three Strikes law. (Ibid.)

Here, the court acted well within its discretion to deny 

Cabrera’s motion to strike his prior strike convictions. The court 

heard evidence that Cabrera targeted and viciously attacked 

Cruz without provocation. Although Cabrera didn’t need to use 

violence to accomplish the robbery in this case, he struck Cruz on 

the side of the head with a gun, shot Cruz at close range several 

times in the leg, hip, and abdomen, and stated he intended to kill 

Cruz all because he was unsatisfied with the amount of money 

Cruz was carrying. 

The court also stated that it considered the fact that 

Cabrera’s prior strike convictions occurred about 18 years before 

the underlying offenses. It was reasonable for the court to find

the remoteness of the prior convictions was outweighed by the 

violent and callous manner in which Cabrera committed the 

underlying crimes. That is, the facts of this case demonstrate an 

escalating, not deescalating, pattern of violence in Cabrera’s 
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conduct since his prior strike convictions. This case, therefore, is 

not an “extraordinary” one that falls outside the spirit of the 

Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 376.)

3. Imposition of Multiple Sentences Under Section 654

Finally, Cabrera argues the court erred when it did not 

stay the sentence on his robbery conviction. According to 

Cabrera, the robbery and the attempted murder were part of an 

indivisible course of conduct prohibiting the imposition of 

multiple sentences under section 654. We disagree.

Under section 654, “An act or omission that is punishable 

in different ways by different provisions of law shall be punished 

under the provision that provides for the longest potential term of 

imprisonment, but in no case shall the act or omission be 

punished under more than one provision.” (§ 654, subd. (a).) The 

statute applies not only where there was one “act” in the ordinary 

sense, but also where an indivisible course of conduct violated 

more than one statute. (Neal v. State of California (1960) 55 

Cal.2d 11, 19.) 

“ ‘It is [the] defendant’s intent and objective, not the 

temporal proximity of his offenses, which determine whether the 

transaction is indivisible. [Citations.] ... [I]f all of the offenses 

were merely incidental to, or were the means of accomplishing or 

facilitating one objective, [the] defendant may be found to have 

harbored a single intent and therefore may be punished only 

once. [Citation.]’ ” (People v. Hicks (1993) 6 Cal.4th 784, 789.) But 

where the defendant harbors multiple criminal objectives that 

are independent of, and not merely incidental to, each other, he 

may be punished for separate violations committed during his 

course of conduct, even though the violations shared common acts 
10

or were part of an otherwise indivisible course of conduct. (People 

v. Vazquez (2020) 44 Cal.App.5th 732, 737 (Vazquez).)

A court has broad discretion in determining whether 

section 654’s prohibition on multiple punishment applies in any 

given case. (Vasquez, supra, 44 Cal.App.5th at p. 737.) A court’s

determination, express or implied, “that two crimes were 

separate, involving separate objectives,” under section 654 is a 

question of fact we review for substantial evidence. (People v. 

Brents (2012) 53 Cal.4th 599, 618.) We review the evidence in the 

light most favorable to the judgment and will affirm the court’s 

sentencing decision if it is supported by substantial evidence. 

(Vasquez, at p. 737.)

Substantial evidence supports the court’s implied finding 

that Cabrera harbored separate intents when he robbed and 

attempted to kill Cruz. The amount of force Cabrera used during 

the attempted murder went far beyond that which was needed to 

complete the robbery. As the facts show, Cabrera was able to 

obtain Cruz’s first wallet with only the use of fear. Cabrera didn’t 

hit or shoot Cruz at that point, and Cruz didn’t struggle to keep 

his first wallet. Cabrera only started to shoot Cruz after 

becoming angry about the amount of money contained in Cruz’s 

wallet. 

Cabrera also didn’t need to use additional force to obtain 

the second wallet while Cruz was lying on the ground after being 

shot in the leg and the abdomen. Nothing in the record indicates 

Cruz resisted or otherwise posed any threat to Cabrera 

completing the robbery. In any event, as we explained above, 

Cabrera clearly harbored a separate intent to kill after he took 

Cruz’s property. After shooting Cruz several times, Cabrera 

walked to his car while Cruz was incapacitated on the ground, 
11

turned back, said he was going to kill Cruz, and fired at least one 

more shot at Cruz before leaving the scene. 

In short, there is ample evidence to support an inference 

that Cabrera shot Cruz with the intent kill, not to facilitate the 

robbery. The court therefore didn’t abuse its discretion in 

imposing multiple punishments for the robbery and attempted 

murder.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.