Opinion
B207296
7-10-2009
THE PEOPLE, Plaintiff and Respondent, v. EDGAR DELGADO, Defendant and Appellant.
Law Offices of Oscar B. Valencia, Oscar B. Valencia; Robert C. Moest, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
A jury convicted defendant and appellant Edgar Delgado (defendant) of four counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 664), four counts of assault on a peace officer with a semi-automatic firearm (§ 245, subd. (d)(2)), discharging a firearm with gross negligence (§ 246.3), and unlawful firearm activity (§ 12021, subd. (c)(1)). With respect to the commission of the attempted murders and the assaults, the jury found true the allegations that defendant personally used a firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). The jury also found true the allegation that defendant committed the attempted murders, the assaults, and the unlawful firearm activity for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced defendant to state prison for 60 years to life plus a consecutive term of 80 years.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that three of his convictions for attempted murder and three of his convictions for assault on a peace officer with a semi-automatic firearm are not supported by sufficient evidence, that the prosecutor engaged in misconduct, and that the trial court erred in denying his motion for a new trial. We affirm.
BACKGROUND
Herman Iniguez hosted a party that began during the evening of June 30, 2006. At some point, Iniguez noticed three or four people who did not belong at the party. Iniguez told those persons to leave. As they were leaving, the persons said, "Fuck this party." Iniguez later told the police that one of the persons said that he was from "18th Street" and one of the persons said that "this is [a] Barrio 18 neighborhood."
When defendant was taken into custody, it was determined that he had the numbers "1" and "8" tattooed on the back of his arms. Such tattoos are consistent with the type of tattoos seen on members of the 18th Street gang.
Approximately 10 to 15 seconds after Iniguez asked the persons to leave, Iniguez heard a loud noise that sounded as if it was a gunshot. Iniguez called 9-1-1 and reported the incident. Iniguez told the 9-1-1 operator that he believed the person who fired the gun was wearing a white "muscle shirt." Iniguez told the police that the firearm appeared to be a small handgun. Iniguez subsequently identified defendant from a photographic lineup as the person who fired the gun at his party.
During the early morning on July 1, 2007, Los Angeles Police Department Officer Jessie West and his partner, Officer Roberto Rodriguez, went to 998 West 75th Street in response to a radio call concerning shots fired at that location. Officer West testified that he spoke with a witness there, who described the shooter as a male Hispanic wearing a white tank top and blue jeans. The witness told Officer West that the person who fired the gun had left with three other male Hispanics and was headed westbound. The officers drove in the direction identified by the witness and looked for the suspects.
At some point, the officers saw a group of four males, one of whom was wearing a white tank top, walking westbound on 76th Street towards Normandie. As the officers vehicle approached the group, two of the men began to run. Officer West radioed for backup.
Officers West and Rodriguez pursued and caught up with the fleeing suspects. Officer West ordered the suspects to stop, and the suspects complied. As the officers were in the process of detaining the two suspects, Officer West heard a gunshot from behind the officers. Officer West heard a "whizzing sound" as a bullet passed his head.
Officers West and Rodriguez turned to determine where the shot had come from. Officer Rodriguez saw a man in a white tank top fire two additional shots at them. Both officers saw two muzzle flashes and Officer West heard two "whizzing sounds" as the bullets passed by. Officer West testified that based on the shape of the muzzle flash it appeared as though the weapon was pointed directly at him as opposed to one that was "more at the side." Officer Rodriguez testified that there is a difference in appearance between muzzle flashes that are pointed at a person or pointed to the side, and that he believed the gun was pointed in his direction. Officer West broadcast an "officer needs help" call over his radio.
Officer West saw defendant, at the corner of 76th and Normandie, bend down, pick up a dark-colored shirt, and wrap the gun in the shirt. While defendants attention was focused on wrapping the gun and not on the officers, Officer West ran toward defendant. When Officer West was within 30 feet of defendant, defendant looked up and ran westbound on 76th Street. Officer West pursued defendant and, upon nearing defendant, ordered defendant to stop and drop his weapon. Defendant disregarded the order and ran down Halldale Avenue.
Defendant ran across the front yard of a house at 7607 South Halldale and jumped over a fence. When defendant jumped over the fence, a dark-colored T-shirt got caught on the top of the fence. Officer West radioed for additional officers to set up a perimeter of the area to try to contain defendant. Los Angeles Police Officer Hector Chaidez and his partner, Officer James Doull, were the first officers to arrive. Officer West began speaking to Officers Chaidez and Doull about setting up a perimeter when a police helicopter arrived overhead. Officer West spoke with the officers in the helicopter. As Officer West, with his flashlight, illuminated the area of the fence that defendant had jumped over, the officer heard a gunshot come from the rear of the residence. Officers Chaidez and Doull were in close proximity to Officer West when the gunshot was fired. Officers West, Chaidez, and Doull fell back to a position of cover as other police officers arrived. Subsequently, Officer West heard a radio broadcast that the "suspect" was running southbound.
Los Angeles Police Officer Christopher Campagna and his partner, Officer Paul Fedynich, participated in the containment of defendant. Officer Campagna saw a ladder at a residence that led to the residences roof. Officer Campagna climbed the ladder hoping to observe defendants location from that vantage point. From the rooftop, Officer Campagna saw a person climb into a trash can. A Special Weapons and Tactics team responded to the scene, removed defendant from the trash can, and took defendant into custody. Officer West was taken to the location where defendant was taken into custody and identified defendant as the person who had shot at him.
When defendant was taken into custody, a handgun fell out of the trash can in which defendant had been hiding. Los Angeles Police Department forensic fingerprint expert Ruben Sanchez testified that a partial fingerprint was lifted from the handgun. Although the fingerprint was of poor quality, Sanchez was able to conclude that the fingerprint did not belong to defendant.
The police recovered one .25 caliber shell casing from the parkway near the driveway at 1101 75th Street, two .25 caliber shell casings from the corner of 76th Street and Normandie, and one .25 caliber shell casing from the area near the garage at 7607 South Halldale. Los Angeles Police Department Firearms Examiners Starr Sachs and Srinivasan Rathinam compared the . 25 caliber shell casings recovered in this case to shell casings test fired from the firearm recovered when defendant was taken into custody and determined that the shell casings matched.
DISCUSSION
I. Sufficiency Of The Evidence
Defendant contends that insufficient evidence supports his convictions for attempted murder and assault on a peace officer with a semi-automatic firearm with respect to Officers Rodriguez, Chaidez, and Doull. Defendant does not contend that the evidence is insufficient to support the jurys determination that he was the shooter or that he attempted to murder Officer West. Instead, defendant contends that the evidence is insufficient to support the jurys determination that he was shooting at Officers Rodriguez, Chaidez, and Doull when he discharged his weapon. Sufficient evidence supports defendants convictions.
A. Standard of Review
"`In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) `In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)" (People v. Young (2005) 34 Cal.4th 1149, 1175.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young, supra, 34 Cal.4th at p. 1181.)
B. Officer Rodriguez
Defendant contends that the evidence is insufficient to show that he fired a shot at Officer Rodriguez because Officers West and Rodriguez were 10 feet apart when the shots were fired, Officer West knew "[a]t the time the three shots were fired the gun was pointed directly at Officer West" because of the shape of the muzzle flashes, "all three shots came so close to Officer West that he heard a `whizzing noise as they passed," Officer West testified that the only way a person would not hear a bullet "whizzing" past if being fired upon directly would be if the person was "deaf," the closer a bullet gets to a person the louder the "whiz" becomes, and Officer Rodriguez did not hear any bullets "whiz" by him. Such "evidence" does not undermine defendants convictions.
The record shows that Officers West and Rodriguez testified that the first of the three shots was fired from behind them. Officers West and Rodriguez testified only as to two muzzle flashes. Thus, Officer West did not testify that he knew all three shots were fired at him based on the shape of the muzzle flashes.
Officer West also testified that the only "type of person" who is shot at and would not hear a "whiz" from the bullet is a person with a "hearing disorder." Officer West did not testify that such a person would have to be deaf.
The evidence adduced at trial is sufficient to support the jurys finding that defendant assaulted and attempted to murder Officer Rodriguez by firing a shot at him. Describing the location of the shooter, Officer West testified that the person "shooting us was back behind us." (Italics added.) Asked at trial if he could identify a person in a photograph, Officer West testified "That would be the same individual that fired the rounds at myself and my partner." (Italics added.) Officer West then identified defendant as the shooter.
Later, testifying as to his certainty that defendant was the shooter and whether he maintained visual contact with defendant, Officer West stated that "From the time that the shooter attempted to take myself and my partners life, there was a three-to five-second delay when I had to clear around the corner to search." (Italics added.) Explaining why he believed that defendant had fired at him at the Halldale address, Officer West testified, "this individual just tried to kill myself and my partner a few moments prior." (Italics added.)
Officer Rodriguez testified that there is a difference between how a muzzle flash looks if a gun is pointed directly at a person as opposed to being pointed to the side. Officer Rodriguez testified that it was his opinion that the gun was "pointed in my direction." Explaining why his focus after the shooting was entirely on the shooter and the shooters location and not on another location, Officer Rodriguez testified that the shooter "had already fired shots at us." (Italics added.) Officer Rodriguez further testified that it is possible to be shot at and not "hear the bullet close enough to whiz past."
C. Officers Chaidez and Doull
Defendant contends that the evidence is insufficient to show that he fired a shot at either Officer Chaidez or Officer Doull at the Halldale address because the evidence showed that Officers West, Chaidez, and Doull all were facing the direction from which the single shot was fired and none of them saw a muzzle flash or the shooter or heard a bullet "whiz" past or strike an object; Officer West testified that he was unsure if a weapon had been fired at him at that location; and Officer Chaidez only assumed that he had been fired upon based on the shooters prior conduct. Sufficient evidence supports defendants convictions.
Officer West testified that as he was using his flashlight to illuminate defendants last known location at the Halldale address for the officers in the helicopter, he heard a gunshot coming from the back of the property. At the time, Officers Chaidez and Doull were standing close to Officer West at the mouth of the driveway. Initially, Officer West testified that he was unsure if the weapon had been fired in his direction. Later, Officer West testified that even though he did not see a muzzle flash or hear a projectile "whiz" past him, he believed that defendant was shooting at him. Officer Wests belief was based on the fact that defendant had just tried to kill Officers West and Rodriguez, had fled, was attempting to conceal himself, and was then trying to avoid capture. Officer Chaidez testified that as he was walking with Officers West and Doull in front of the location where the suspect was last seen, he heard a gunshot. The officers took cover immediately. Officer Doull said, "I think this guy is shooting at us" or "Hey, I think were being shot at."
Officer Chaidez testified that he heard a gunshot coming from the backyard and that he did not see the shooter or a muzzle flash and could not determine the direction the bullet was headed. Chaidez believed he was being shot at because the suspect had already shot at Officers West and Rodriguez. On cross examination, Officer Chaidez admitted that he "only assumed [he] was being shot at . . . due to the prior experiences of Officer West." Officer Chaidez testified that when he later entered the backyard, he walked to the garage to look for evidence because he "could have sworn that we were shot at from that location." Officer Chaidez found a single .25 caliber shell casing.
Based on the evidence adduced at trial, a reasonable juror could have concluded beyond a reasonable doubt that defendant shot at Officers Chaidez and Doull in furtherance of his efforts to escape capture. Defendant previously had fired shots at police officers, and the shot at the Halldale address was fired from the rear of the yard as Officer West illuminated the area of the fence that defendant had jumped over. The evidence suggests that defendant was shooting at the police officers who were trying to apprehend him.
Defendant argues that Officer Chaidezs assumption that defendant was firing at Officer Chaidez does not support defendants convictions because "it is just as reasonable to assume that the shooter fired a shot in the air or accidently fired the weapon in another direction." Defendants suggested explanations of the gunshot at the Halldale address may be reasonable, but they do not require reversal of defendants challenged convictions because the evidence also reasonably supports the jurys determinations that defendant assaulted and attempted to murder Officers Chaidez and Doull. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 ["Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] `"If the circumstances reasonably justify the trier of facts 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. [Citation.]" [Citation.]"].)
II. Prosecutorial Misconduct
Defendant contends that the trial court denied his motion to bifurcate trial of the gang enhancement allegations (§ 186.22, subd. (b)(1)(C)) based on an alleged misrepresentation by the prosecutor concerning expected witness testimony. Defendant contends that the misrepresentation was prosecutorial misconduct that led to the introduction of gang evidence in violation of his right to federal due process and rendered his trial fundamentally unfair. Defendants failure to object to any asserted prosecutorial misconduct in the trial court and to request that the jury be admonished forfeits appellate review of this contention.
A. Background
Defendant moved to bifurcate trial of the gang enhancement allegations. At the hearing, the following colloquy took place:
"[Defense Counsel]: Basically, I want to make a motion to bifurcate the gang allegation, your Honor. I dont think theyre supposed to be intertwined.
"From the preliminary hearing transcripts, the shooting that occurred at the officers, there was no mention of 18th Street, there was no hit-up, there was no anything. The police did not know this was a gang-related incident when they stopped the two individuals upfront. No one knew it was a gang-related incident until after they started interviewing my client and he mentions an a.k.a. Crook.
"The Court: All right, People?
"[The Prosecutor]: We oppose that. We think it is part of the case.
"In fact, Herman Iniguez — I think is how he pronounces his name — in a statement provided to us indicated that the defendant yelled out `18th Street prior to shooting at the party, which was a negligent discharge, which led to the whole initiation of this whole event.
"So were opposing any bifurcation of that. We dont believe its substantially more prejudicial than probative in this case.
"The Court: And there is a statement you plan to introduce regarding that?
"[The Prosecutor]: Yes.
"The Court: Counsel, your request is noted for the record, but the court is not inclined to bifurcate in this case, but the record is protected as to your request.
"What other issue did you have?
"[Defense Counsel]: May I just be heard as to that comment counsel made?
"The Court: Go ahead.
"[Defense Counsel]: This is made right before — evidently, hes in the party, he left, said `This is 18th Street territory, hes being ushered out, at that point he fires the weapon. At that point, he didnt say anything about 18th Street or anything, he didnt draw attention to it.
"I think its tenuous as to the main charges here, the charges against the officers, so thats what my objection is.
"The Court: All right, your objection is noted."
B. Application of Relevant Legal Principles
"`Improper remarks by a prosecutor can "`so infect [] the trial with unfairness as to make the resulting conviction a denial of due process." (Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 2471, 91 L.Ed.2d 144]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642 [94 S.Ct. 1868, 1871, 40 L.Ed.2d 431]; cf. People v. Hill (1998) 17 Cal.4th 800, 819 [72 Cal.Rptr.2d 656, 952 P.2d 673].) Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. (People v. Hill, supra, 17 Cal.4th at p. 819; People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40] (Berryman); People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610] (Price).)" (People v. Carter (2005) 36 Cal.4th 1114, 1204.)
"`Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm. . . . (Berryman, supra, 6 Cal.4th at p. 1072 [rejecting defendants claim of prosecutorial misconduct both for failure to object or request admonition at trial[,] and on the merits]; Price, supra, 1 Cal.4th at pp. 447, 460-462 [declining to address whether prosecutors committed misconduct[,] because defense did not object at trial]; People v. [Montiel] (1993) 5 Cal.4th 877, 914 [21 Cal.Rptr.2d 705, 855 P.2d 1277] . . . [although trial counsel objected to prosecutors remarks at trial, the failure to request admonition failed to preserve claim of prosecutorial misconduct on appeal].) (People v. Frye (1998) 18 Cal.4th 894, 969-970 [77 Cal.Rptr.2d 25, 959 P.2d 183]; see also People v. Ochoa [(1998)] 19 Cal.4th 353, 427.)" (People v. Carter, supra, 36 Cal.4th at p. 1204.)
In respondents brief, respondent argues, among other things, that defendant forfeited appellate review of his claim of prosecutorial misconduct by failing to object on the ground of misconduct in the trial court. In defendants reply brief, defendant does not address respondents forfeiture argument or argue that an exception to the application of the forfeiture rule applies in this case. Defendants failure to object to the alleged prosecutorial misconduct in the trial court and to request that the trial court admonish the jury forfeited appellate review of this issue. (People v. Carter, supra, 36 Cal.4th at p. 1204.)
"A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (People v. Hill, supra, 17 Cal.4th at p. 820.)
In any event, the prosecutor did not commit misconduct by misrepresenting Iniguezs expected testimony. Iniguez testified, as set forth above, substantially—even though not identically—as the prosecutor represented he would. The prosecutor stated that Iniguez, "in a statement provided to us indicated that the defendant yelled out `18th Street prior to shooting at the party." Iniguez testified that he told the police that one of the persons said that he was from "18th Street" and one of the persons said that "this is [a] Barrio 18 neighborhood." Under the circumstances, we do not conclude that the prosecutor used deceptive or reprehensible methods to persuade the trial court to deny defendants motion to bifurcate trial of the gang enhancement allegations. (People v. Carter, supra, 36 Cal.4th at p. 1204.)
III. Motion For A New Trial
Defendant filed a motion for a new trial that asserted, among other arguments, the insufficient evidence and prosecutorial misconduct arguments that defendant asserts in this appeal. Defendant contends that, with respect to his insufficient evidence and prosecutorial misconduct arguments, the trial courts denial of his motion for a new trial was error. Because, as set forth above, defendants sufficiency of the evidence and prosecutorial misconduct arguments fail so also does defendants motion for a new trial argument fail.
DISPOSITION
The judgment is affirmed.
We concur:
TURNER, P. J.
KRIEGLER, J.