People v. Delgado CA2/4 ( 2021 )


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  • Filed 8/24/21 P. v. Delgado CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
    opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,                                                 B302051
    Plaintiff and Respondent,                            Los Angeles County
    Super. Ct. No. VA148234
    v.
    IVAN DELGADO,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Yvonne T. Sanchez, Judge. Affirmed.
    Heather L. Beugen, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Matthew Rodriguez, Acting Attorney General, Lance E.
    Winters, Chief Assistant Attorney General, Susan Sullivan
    Pithey, Senior Assistant Attorney General, Scott A. Taryle and
    Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff
    and Respondent.
    INTRODUCTION
    Defendant and appellant Ivan Delgado pled no contest to
    attempted murder, and admitted the allegation that he
    personally used a firearm. The trial court sentenced him to 12
    years in state prison. On appeal, Delgado contends the trial court
    abused its discretion by permitting the prosecution to file an
    amended information adding a charge of willful, deliberate, and
    premeditated attempted murder. He asserts there was
    insufficient evidence admitted at his preliminary hearing to
    support the new charge. We reject Delgado’s contention and
    affirm.
    PROCEDURAL BACKGROUND
    The Los Angeles County District Attorney filed an
    information charging Delgado with assault with a firearm (Pen.
    Code,1 § 245, subd. (a)(2); count one), possession of a firearm by a
    felon (§ 29800, subd. (a)(1); count two), and shooting at an
    unoccupied vehicle (§ 247, subd. (b); count three). The
    information further alleged Delgado committed counts one and
    two for the benefit of, at the direction of, or in association with a
    criminal street gang with the specific intent to promote, further
    or assist in criminal conduct by gang members. (§ 186.22, subd.
    (b)(1)(A) and (C).) With respect to count one, the information also
    alleged Delgado caused great bodily injury (§ 12022.7, subd. (a)),
    personally used a firearm (§ 12022.5, subd. (a)), and sustained a
    prior prison term conviction (§ 667.5, subd. (b)). Delgado pled not
    guilty to all counts and denied all allegations.
    1    All further undesignated statutory references are to the
    Penal Code.
    2
    On April 26, 2019, over Delgado’s objection, the trial court
    permitted the prosecution to file an amended information. The
    amended information added an additional count of attempted
    willful, deliberate, and premeditated murder. (§§ 664, 187, subd.
    (a); count four). With respect to count four, criminal street gang
    (§ 186.22, subd. (b)(1)(C)), great bodily injury (§ 12022.7, subd.
    (a)), firearm allegations (§§ 12022.5, subd. (a), 12022.53, subds.
    (c)-(d)), and a prior prison term conviction (§ 667.5, subd. (b))
    were also alleged. Delgado pled not guilty to count four and
    denied the new allegations.
    Nearly five months later, on September 18, 2019, the case
    was called for a readiness hearing. Delgado pled no contest to
    attempted murder,2 and admitted he personally used a firearm
    (§ 12022.5, subd. (a)). The plea agreement provided Delgado
    would serve 12 years in state prison. The court imposed that
    sentence, which consisted of the upper term of nine years on the
    attempted murder count, plus a three-year personal use of a
    firearm enhancement.
    Delgado timely appealed. Thereafter, the trial court
    granted Delgado’s request for a certificate of probable cause.
    FACTUAL BACKGROUND3
    At about 5:15 p.m. on July 10, 2018, R.G. was taking a nap
    at his home on Elaine Avenue in Norwalk, when he heard what
    he thought were fireworks. Later that evening, a police officer
    2     Based on the parties’ plea agreement, the court dismissed
    the allegation that the attempted murder was willful, deliberate
    and premeditated.
    3     The following facts are taken from the transcript of the
    preliminary hearing.
    3
    knocked on his door, and R.G. went outside to inspect his truck.
    There was damage to the truck’s left front fender. The damage
    was not there before R.G. heard what he thought were fireworks.
    That same evening, at approximately 5:15 p.m., Deputy
    Velasquez responded to a call of shots fired near Elaine Avenue.
    After responding, Deputy Velasquez went to Saint Francis
    Hospital and interviewed M.A., who had been shot in the arm.
    M.A. said he was riding his bike in an alley. When he approached
    Elaine Avenue, he saw two men standing across the street. The
    men yelled, “Where are you from?” and then said, “This is Orange
    Street.” M.A. responded, “I know where I’m at.” One of the men
    removed a gun and began firing at M.A. As he ran away, M.A.
    heard several gunshots and was hit in the right arm.
    M.A. initially identified the men by their monikers, Droopy
    and Chico. At M.A.’s direction, Deputy Velasquez searched the
    Orange Street Locos on Google, and watched a video on YouTube
    consisting of a slideshow of photographs with music. Shortly into
    the video, M.A. asked Deputy Velasquez to pause it on a
    photograph of two men, and said those were the two men who
    had shot him. Deputy Velasquez recognized the two men as
    Delgado and Aaron Aguirre, a minor. Two days later, M.A.
    identified Delgado as the shooter from a photographic lineup.
    Deputy Velasquez testified he was familiar with the
    Orange Street Locos gang. The gang had about 50 documented
    members, and about a dozen active members. The shooting
    occurred in an area within territory claimed by the gang. In
    Deputy Velasquez’s opinion, both Delgado and Aguirre were
    members of the Orange Street Locos gang, and the shooting was
    committed for the benefit of, in association with, or at the
    direction of the gang.
    4
    DISCUSSION
    Delgado contends the trial court erred by permitting the
    prosecution to amend the information to add a charge of
    attempted willful, deliberate, and premeditated murder because
    the new charge was not supported by the evidence at the
    preliminary hearing. Specifically, he argues there was no
    evidence presented that Delgado intended to kill the victim. The
    Attorney General counters that although direct evidence of a
    defendant’s intent rarely exists, intent to kill may be inferred
    here from the evidence presented at the preliminary hearing. We
    agree with the Attorney General.
    Section 1009 grants the trial court discretion to permit the
    amendment of the information at any time, so long as the
    amended charge is supported by the evidence at the preliminary
    hearing.4 (People v. George (1980) 
    109 Cal.App.3d 814
    , 818.)
    “‘Evidence that will justify a prosecution need not be sufficient to
    support a conviction. [Citations.]’” (Rayyis v. Superior Court
    (2005) 
    133 Cal.App.4th 138
    , 150.) The test is whether the
    evidence at the preliminary hearing would lead a person “‘“of
    ordinary caution or prudence . . . to believe and conscientiously
    4      Section 1009 provides, in relevant part: “The court in which
    an action is pending may order or permit an amendment of an
    indictment, accusation or information . . . at any stage of the
    proceedings . . . . [T]he trial or other proceeding shall continue as
    if the pleading had been originally filed as amended, unless the
    substantial rights of the defendant would be prejudiced thereby,
    in which event a reasonable postponement, not longer than the
    ends of justice require, may be granted. An indictment or
    accusation cannot be amended so as to change the offense
    charged, nor an information so as to charge an offense not shown
    by the evidence taken at the preliminary examination.”
    5
    entertain a strong suspicion of the guilt of the accused.”’
    [Citations.]” (Ibid.) “‘“[A]lthough there must be some showing as
    to the existence of each element of the charged crime [citation]
    such a showing may be made by means of circumstantial
    evidence supportive of reasonable inferences[.]”’” (Ibid.) We will
    not disturb the trial court’s decision to permit an amendment in
    the absence of a clear abuse of discretion. (People v. Bolden (1996)
    
    44 Cal.App.4th 707
    , 716.)
    “‘Attempted murder requires the specific intent to kill and
    the commission of a direct but ineffectual act toward
    accomplishing the intended killing.’ [Citation.] Because direct
    evidence of a defendant’s intent rarely exists, intent may be
    inferred from the circumstances of the crime and the defendant’s
    acts. [Citation.]” (People v. Sanchez (2016) 
    63 Cal.4th 411
    , 457.)
    “The crime of attempted murder is not divided into degrees, but
    the sentence can be enhanced if the attempt to kill was
    committed with premeditation and deliberation. [Citation.]”
    (People v. Gonzalez (2012) 
    54 Cal.4th 643
    , 654 (Gonzalez).) “‘“‘An
    intentional killing is premeditated and deliberate if it occurred as
    the result of preexisting thought and reflection rather than
    unconsidered or rash impulse.’ [Citation.]”’” (People v. Brady
    (2010) 
    50 Cal.4th 547
    , 561.) The “three categories of evidence
    relevant to determining premeditation and deliberation [are]:
    (1) events before the murder that indicate planning; (2) a motive
    to kill; and (3) a manner of killing that reflects a preconceived
    design to kill.” (Gonzalez, supra, 54 Cal.4th at p. 663.) These
    guidelines, however, are “not all required [citation], nor are they
    exclusive in describing the evidence that will support a finding of
    premeditation and deliberation.” (Ibid.)
    6
    Applying the above-stated principles, we conclude the trial
    court did not abuse its discretion by granting the prosecution
    leave to file the amended information adding a new charge of
    attempted willful, deliberate, and premeditated murder. At the
    preliminary hearing, Deputy Velasquez testified that Delgado
    was a member of the Orange Street Locos gang. He further
    testified that as the victim rode his bike in an alley in a territory
    claimed by the gang, Delgado and Aguirre (another member of
    the gang) were across the street and yelled, “Where are you
    from?” and “This is Orange Street.” After the victim responded, “I
    know where I’m at” Delgado pulled out a gun. Such a gang
    challenge indicates Delgado may have planned a murderous
    attack to promote the interests of his gang. Further, although the
    victim ran away after Delgado pulled out his gun, Delgado
    proceeded to fire several shots at the victim, one of which hit him
    in his right arm. We conclude that an ordinarily cautious person
    could, on the basis of Deputy Velasquez’s testimony, entertain a
    strong suspicion that Delgado intended to kill the victim and the
    attempt to kill was committed with premeditation and
    deliberation. The trial court therefore did not abuse its discretion
    by concluding the amendment was supported by evidence offered
    at the preliminary hearing.
    7
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS\
    CURREY, J.
    We concur:
    MANELLA, P.J.
    COLLINS, J.
    8
    

Document Info

Docket Number: B302051

Filed Date: 8/24/2021

Precedential Status: Non-Precedential

Modified Date: 8/24/2021