People v. Salcedo CA2/6 ( 2015 )

Filed 7/30/15 P. v. Salcedo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B259032
(Super. Ct. No. KA103409)
Plaintiff and Respondent, (Los Angeles County)
v.
GARY ANDREW SALCEDO,
Defendant and Appellant.
Gary Andrew Salcedo appeals a judgment after conviction by jury of
assault with a deadly weapon causing great bodily injury. (Pen. Code, §§ 245, subd.
(a)(1), 12022.7, subd. (a).)1 Salcedo admitted he was previously convicted of a serious or
violent felony and served four prior prison terms. (§§ 667, subd. (a), 1170.12, subd. (b).)
The trial court sentenced him to 14 years in state prison. The jury acquitted Salcedo of a
separate count of making criminal threats using a deadly weapon. (§§ 422, subd. (a),
12022, subd. (b)(1).)
We appointed counsel to represent Salcedo in this appeal. After
examination of the record, counsel filed an opening brief raising no issues. (People v.
Wende (1979) 25 Cal. 3d 436, 441.) On February 19, 2015, we advised Salcedo that he
had 30 days within which to personally submit any contentions or issues that he wished
to raise on appeal. On April 21, 2015, we received a response from him. Salcedo
1
All statutory references are to the Penal Code.
contends the trial court erroneously denied his motion to suppress evidence discovered
during an unlawful search; he received ineffective assistance of counsel because his
attorney did not competently cross-examine witnesses or offer a video recording of an
interaction that preceded search; and the trial court erred when it did not continue trial so
he could undergo DNA testing that he had previously refused. Pursuant to People v.
Kelly (2006) 40 Cal. 4th 106, 123-124, we present a factual and procedural summary of
the case and a brief discussion of Salcedo’s contentions.
FACTUAL AND PROCEDURAL BACKGROUND
Salcedo and Yvonne Regelado followed Jesus Calles into a liquor store.
Salcedo stabbed Calles, lacerating his liver. The store owner and an employee witnessed
the stabbing and it was captured on videotape. Calles told a detective that he did not
know the man who stabbed him, but the woman was “Yvonne.”
At a nearby motel, officers asked Yvonne Regelado for permission to look
for the suspect in her room. Yvonne said, “Go ahead. But no one is in there.” They did
not find Salcedo, but they saw on the bed his open wallet and a hooded sweatshirt he may
have worn during the stabbing. The officers then asked Yvonne for permission to search
the room and she refused. They obtained a warrant, conducted a thorough search, and
found a bloody folding-type knife under the sweatshirt. Their conversations with Yvonne
were recorded.
The store owner and the employee identified Salcedo in photographic
lineups and at trial. Calles did not identify Salcedo and was unavailable to testify at trial.
A recording of his 911 call for help was admitted as a dying declaration and spontaneous
utterance over defense objection. Yvonne was also unavailable to testify.
Prior to trial, Salcedo moved to suppress evidence discovered during the
search of the motel room. The trial court denied the motion, finding that Yvonne
consented to the initial sweep, the subsequent search was pursuant to a valid warrant, and
Salcedo had not established standing.
Salcedo refused to submit to DNA testing three times in June 2014,
notwithstanding a court order. Subsequently, an expert tested the knife and concluded
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that it contained DNA from at least three individuals, making the profile difficult to
ascertain. Calles was possibly a contributor, but this also would be true of one out of
every eight people selected at random. Salcedo learned of these results nine days before
trial. A few days before trial, he told his attorney he wanted to submit to a DNA test. On
the first day of trial, counsel asked the trial court to continue trial so Salcedo could
submit to DNA testing. The court denied the request.
DISCUSSION
The trial court did not err when it denied Salcedo’s motion to suppress.
Substantial evidence supports its findings that Yvonne consented to the initial sweep of
her room and the subsequent search was pursuant to a valid warrant. (People v. Jenkins
(2000) 22 Cal. 4th 900, 971-972 [a warrantless search may be reasonable when a person
other than defendant with authority over the premises voluntarily consents to the search].)
Salcedo forfeited any right to DNA testing when he thrice refused to submit
to it, defying a court order. The trial court acted within its discretion when it denied his
untimely request.
Salcedo’s claim that his counsel rendered ineffective assistance is not
supported by a showing that counsel's representation fell below an objective standard of
reasonableness, or a reasonable probability that he would have obtained a more favorable
result but for counsel's deficient performance. (Strickland v. Washington (1984) 466 U.S.
668, 688, 694.) Counsel’s decision not to cross-examine a detective about Calles’ failure
to identify Salcedo in a photographic lineup was reasonable since the prosecution did not
use Calles’s statements to prove identity. Counsel’s decision not to object to the
detective’s brief testimony about Calles’s out-of-court statement was also reasonable;
Calles said he “did not know” who stabbed him. We defer to counsel's reasonable
tactical decisions. (People v. Mai (2013) 57 Cal. 4th 986, 1009.) The record does not
support Salcedo’s contention that a video recording of events at the motel room would
have established that Yvonne was coerced and that Salcedo lived in the room. Even if
counsel had established that Salcedo lived in the room, the result would not be different
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because Yvonne had authority over the premises. (People v. Jenkins, supra, 22 Cal. 4th
900, 971-972.)
We have reviewed the entire record and are satisfied that Salcedo’s attorney
has fully complied with his responsibilities and that no arguable issue exists. (People v.
Wende, supra, 25 Cal. 3d 436, 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Thomas C. Falls, Judge
Superior Court County of Los Angeles
______________________________
Tyrone A. Sandoval, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Respondent.
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