People v. Delgado CA2/4

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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.
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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.
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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.”
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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.)
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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.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS\
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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