P. v. Delery
Filed 4/18/11 P. v. Delery CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
| THE PEOPLE, Plaintiff and Respondent, v. ERIC DELERY et al., Defendants and Appellants. | B221665 (Los Angeles County Super. Ct. No. MA043949) |
APPEAL from the judgment of the Superior Court of Los Angeles County. Lisa M. Chung, Judge. Affirmed.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Eric Delery.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Kelly Vaughn.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendants and appellants Eric Delery and Kelly Vaughn, who are cousins, were convicted of attempted willful, deliberate and premeditated murder of another cousin, James Scott. Delery was also convicted of dissuading a witness by force or threat. Scott was the victim of a war between two feuding sides of the same family, which led to his cousins’ drive-by shooting.
The sole issue raised by defendants on appeal is that there was not substantial evidence to identify them as the perpetrators of the crimes. Scott disavowed at trial his numerous out-of-court statements to law enforcement and family members that his male cousin Delery was the driver and his female cousin Vaughn was the shooter. Finding substantial evidence that Delery and Vaughn committed the crimes of which they were convicted, we affirm the judgments.
BACKGROUND
The family feud began a few months before Scott was shot. It began when Vaughn’s mother went to the home of Scott’s mother, enraged because she had heard Scott’s mother was spreading the rumor that Vaughn’s father, who was incarcerated, had AIDS. Vaughn’s mother insulted Scott’s mother, and the confrontation escalated when the women threw bricks at one another, Vaughn’s mother threatened gang retaliation, Scott’s mother threw bleach in the face of Vaughn’s mother, and Vaughn’s mother threw a brick through the window. There were other fights and violent threats, and the feud spread through family members on each side.
Vaughn took valuable property from Scott’s family, including money, a phone, a PlayStation, and other personal items. Delery took Scott’s pit bull puppies and sold them. Both defendants sent threatening messages to Scott on his computer, telling him to watch his brothers’ backs. Scott went with his brothers to the home of Delery’s sister to retrieve their stolen property. One of Scott’s brothers got into a fight with Delery, and another brother got into a fight with Vaughn. After the fight broke up, Vaughn told Scott to watch his brother’s back or she would have some of her gang homeys jump him. Scott had been a member of a rival gang of Vaughn’s gang.
The cousins and other friends and family members attended an engagement party. Scott went outside with a friend, and while they were walking in the street, a car approached. The passenger asked Scott where he was from, and Scott replied by insulting the passenger’s gang. The passenger replied, “Payback motherf-----,” and shot Scott once in the chest with a nine-millimeter semi-automatic handgun. The car sped off. Scott was taken to a hospital with a collapsed lung and stayed in the hospital four or five days.
A few hours after the shooting, Deputy Marshall interviewed Scott, who was coherent, at the hospital. Scott told the deputy he knew the people who shot him and he had a fight with the shooter a few weeks before, but he did not identify the shooter or driver by name. He told Deputy Marshall the shooter was a male black passenger in the car.
When Scott’s mother arrived at the hospital, she asked Scott if Vaughn and Delery had anything to do with the shooting. Scott did not answer her at first, keeping his gaze on the television. Then he looked at her and told her he would take a bullet for any of his brothers and “you know I’m going to get them.”
Two days after the shooting, Detective Berry interviewed Scott at the hospital. Scott told Berry that the person who shot him looked like his cousin Vaughn, and he said the driver was Delery.
Scott told his mother when he got home from the hospital that Vaughn shot him and Delery drove the car. His mother called Detective Berry to report this because she knew her son could be violent at times and feared he would seek revenge, so she had to intervene. Scott also told his mother that Vaughn repeatedly called him, laughing about the shooting.
Later that month, Detective Berry went to Scott’s mother’s home and showed Scott two sets of photographs. Scott circled the photographs of Vaughn and Delery. He identified Vaughn as the shooter and Delery as the driver. Scott told both Deputy Marshall and Detective Berry that the shooter said, “This is payback.”
One of Scott’s brothers printed and gave to Detective Berry an instant message he received from “Kelly Nigga” after the shooting, stating they needed to get over the family feud, but if he really wanted to get beat up, “I will bring the homeys from the [hood] to the house.”
Delery discovered Detective Berry had been to Scott’s mother’s home and went there to confront her for getting law enforcement involved. Delery lifted his shirt to display a handgun at his waist and, with one hand on the gun, said to her, “You all keep going to the police. I will -- I will shoot [Scott] again.”
Shortly after the shooting, one of Scott’s friends told Scott that Vaughn and Delery were bragging about shooting him.
Scott was in prison at the time of trial, serving a sentence for a conviction of being a felon in possession of the same firearm he carried in his car for protection on the night he was shot. From prison, he sent a letter to his mother, in which he wrote that he did not want to return home when he got out of prison because “[l]ook at what happened to me. I got shot by my so-called family members.” Scott testified that he received a letter from his mother saying she was receiving threats and asking him to protect his father and brothers. He wrote her back, saying, “I want to get them myself. I had so many chances to get them. The only reason I don’t is because of you and my dad.” Scott testified he was referring to defendants as “them” in the second letter.
Scott’s uncle told Detective Berry that shortly after Scott’s release from the hospital, Scott told him that Vaughn was the person who shot him. Scott’s stepfather told Detective Berry that, shortly after his release from the hospital, Scott told him Vaughn shot him and Delery drove the car. Scott also told his stepfather he was misleading law enforcement because he wanted to seek revenge on his own.
Detective Berry testified as a gang expert that victims and witnesses who cooperate with law enforcement often change their stories when they come to court because they do not want to be known as a snitch. For this reason, most gang members seek justice on their own.
DISCUSSSION
Both defendants contend their federal due process rights were violated because they were convicted without sufficient proof that they were the perpetrators of the crimes. “ ‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; accord, People v. Staten (2000) 24 Cal.4th 434, 460 [“ ‘critical inquiry’ ” is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt].)
We must confirm that the evidence supporting the verdict is “reasonable, credible, and of solid value” (People v. Prince (2007) 40 Cal.4th 1179, 1251), but refrain from reweighing the evidence and substituting our evaluation of the credibility of witnesses for that of the trier of fact (People v. Ochoa, supra, 6 Cal.4th at p. 1206). This same standard applies whether the evidence is direct or circumstantial. (People v. Prince, at p. 1251.) Under this deferential standard of review, there is ample evidence that defendants committed the crimes.
Defendants acknowledge the considerable evidence of their motive to try to kill Scott, their cousin, and that Scott identified Vaughn as the shooter and Delery as the driver to Detective Berry, his mother, his stepfather, and his uncle. Defendants rely on Scott’s recanting of these statements at trial and ask us to reweigh the evidence and find more credible Scott’s testimony at trial that he never saw the shooter, neither defendant shot him, and he never said they did. Defendants point to various inconsistencies in Scott’s out-of-court statements, such as whether the shooter was male or female, and that the shooter had a tattoo on the neck; neither defendant has a tattoo of the type Scott described. Defendants also contend Scott is an unreliable witness because he has felony convictions and had various motives to lie.
Further, defendants point out that Scott’s brothers did not provide any testimony supporting the prosecution and denied knowing whether defendants were at the party during which Scott was shot. Defendants argue the prosecutor’s failure to call Scott’s friend who was walking with him at the time of the shooting leaves a gap in the evidence, and Detective Berry’s explanation that the friend had moved to Seattle is so inadequate that we should infer the friend would not support the prosecution case. Defendants also argue Scott’s mother was motivated to lie because of her feud with Vaughn’s mother.
But we cannot reweigh the evidence or substitute our judgment for that of the jury on credibility questions. Scott testified at trial the only reason he believed defendants were the perpetrators was that a friend told him defendants were bragging about shooting him. The jury was entitled to disbelieve this testimony, because Scott also testified the friend told him about defendants bragging after his release from the hospital, yet Scott identified defendants as the perpetrators to Detective Berry while he was still in the hospital.
Scott was serving a prison term at the time of trial and testified that he would not be a snitch, and that cooperating with law enforcement could get him stabbed or killed in prison. Scott testified he did not trust police and preferred to handle things on his own. That testimony, together with the substantial evidence that defendants and their family members were threatening Scott’s family for having cooperated with law enforcement, and the substantial evidence that Scott wanted to exact his own revenge on defendants, was sufficient to explain why Scott recanted his many pretrial statements to law enforcement and family members identifying defendants as the perpetrators of the crime.
DISPOSITION
The judgments of conviction of Delery and Vaughn are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
