Filed 8/20/26 P. v. Delgado CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B343125
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. 24LBCF00282)
ANDY DELGADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Chestopher L. Taylor, Judge. Affirmed.
Keilana Truong, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Ana R. Duarte and Kenneth C.
Byrne, Deputy Attorneys General, for Plaintiff and Respondent.
1
_______________________
Andy Delgado appeals from a judgment of conviction
entered after a jury found him guilty of two counts of attempted
murder, second degree robbery, attempted second degree robbery,
grand theft, second degree burglary, and two counts of possession
of a firearm by a felon. Delgado contends with respect to the
attempted murder counts that there was insufficient evidence he
acted with the intent to kill. He further contends the trial court
abused its discretion in denying his motion to sever trial of the
attempted murder counts from the remaining charges. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
On July 10, 2024 the prosecution filed an information
charging Delgado with the attempted willful, deliberate, and
premeditated murders of John Doe (Pen. Code, §§ 187, subd. (a),
664; count 1)1 and Jane Doe (count 2), second degree robbery
(§ 211; count 3), attempted second degree robbery (§§ 211, 664;
count 4), grand theft (§ 487, subd. (a); count 6),2 second degree
burglary (§ 459; count 7), and two counts of possession of a
firearm by a felon (§ 29800, subd. (a)(1); counts 8 & 9). The
information also alleged Delgado had been convicted of two prior
serious or violent felonies within the meaning of the three strikes
law (§§ 667, subds. (b)-(j), 1170.12).
1 Further undesignated statutory references are to the Penal
Code.
2 The information did not include a count 5.
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B. The Evidence at Trial
1. The December 29, 2023 attempted murders (counts 1
and 2)
On the afternoon of December 29, 2023, police officers
responded to reports of a shooting outside a bar in San Pedro.
Officers recovered eight .40-caliber cartridge casings from the
parking lot next to the bar. When the officers arrived, there were
no victims or eyewitnesses at the scene.
Surveillance cameras from the bar captured the incident.
The surveillance footage shows Delgado standing near a group of
individuals outside the bar before walking with a female
companion down the sidewalk toward a parking lot. As Delgado
approached the parking lot, he put on a pair of gloves, then
removed a handgun from his waistband.
Delgado turned right into the parking lot, stopped, and
raised both arms while holding the handgun, which he pointed at
a man who was standing next to the driver’s side of a parked car.
Delgado was approximately two to three car lengths from the
man and had an unobstructed view of the man and the parked
car. Delgado fired his gun repeatedly toward the man as he
walked toward the car. The man ducked for cover behind the
driver’s side front car door, and a few seconds later he ran to the
rear of the vehicle. At the same time, a woman who had been
sitting in the front passenger seat got out of the car and ran to
the rear of the vehicle. Delgado fired a total of eight rounds
toward the car, then walked out of the parking lot as the man
fled, with the woman behind him. Delgado rejoined his female
companion, who was waiting for him on the sidewalk at the
parking lot entrance. The incident lasted approximately 11
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seconds (from when Delgado walked into the parking lot until he
exited).
At the time of the shooting, Delgado was on parole and was
required to wear an ankle monitor. The data from his ankle
monitor showed Delgado was in the vicinity of the parking lot
during the shooting.
2. The December 30, 2023 robbery and attempted
robbery (counts 3 and 4)
In the early morning of December 30, 2023, Sara B. drove
with her friend Kathie B. to the apartment they shared in
San Pedro. After they arrived at the apartment building, Sara
started walking to the building while Kathie retrieved her
belongings from the car. When Sara reached her apartment
building, a truck stopped abruptly next to where she was
standing. The driver, whom Sara identified at trial as Delgado,
leaned through the passenger-side window and asked Sara
for $72. At that point, Kathie joined Sara on the sidewalk.
Delgado got out of his vehicle and walked toward the women,
until he was within an arm’s length of them. He pointed a gun at
Kathie’s chest and then at her head. Kathie gave him her
backpack. Delgado took the backpack, returned to the truck, and
drove away. According to Sara, Delgado told the women “he is
sorry it had to come down to this.”
The data from Delgado’s ankle monitor showed he was near
the scene of the robbery in the early morning of December 30.
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3. The grand theft and second degree burglary (counts 6
and 7)
On January 3, 2024 Kimberly Gurrola was terminated from
her job at a retail store for shoplifting. Later that day Gurrola
returned to the store with Delgado. The two were seen on a
surveillance camera entering a stockroom then loading shopping
bags with various electronics. Then they left the store through a
fire exit. They took approximately $5,500 in merchandise.
A few hours after Delgado and Gurrola took the electronics,
Delgado returned to the retail store. He tried to enter the same
stockroom, but it was locked. Employees asked Delgado to leave
the store.
GPS data from Delgado’s ankle monitor placed him at the
retail store during both visits.
4. Delgado’s possession of a firearm by a felon (counts 8
and 9)
On January 8, 2024 Delgado was arrested by his parole
officer for failure to comply with the conditions of his parole.
Officers searched Delgado’s truck and found a handgun, three
magazines, ammunition, and a knife.
C. The Verdict and Sentencing
The jury found Delgado guilty of the attempted murder of
the man (John Doe) but not guilty of the attempted murder of the
woman (Jane Doe). The jury found Delgado guilty on the
remaining counts.
Delgado waived his right to a jury trial on the prior strike
allegations, and the trial court conducted a bench trial on the
allegations. The court found true that Delgado had been
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convicted of two prior serious or violent felonies within the
meaning of the three strikes law. The court sentenced Delgado to
25 years to life as a third strike offender on count 1, plus an
aggregate determinate sentence of eight years on counts 3, 4, and
6 through 9 comprising six years on count 3 (the middle term of
three years, doubled),3 plus two years on count 4 (one-third the
middle term of three years, doubled). The court imposed and
stayed pursuant to section 654 four years on each of counts 6, 7,
8, and 9 (the middle terms of two years, doubled).
Delgado timely appealed.
DISCUSSION
A. Substantial Evidence Supports the Attempted Murder
Conviction
1. Governing law and standard of review
To determine the sufficiency of the evidence, we “‘review
the whole record to determine whether any rational trier of fact
could have found the essential elements of the crime . . . beyond a
reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in
support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.’” (People v.
Sandoval (2015) 62 Cal.4th 394, 423.) “‘Conflicts and even
3 The trial court treated Delgado as a second-strike offender
on the determinate terms and doubled each term.
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testimony which is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.’” (People
v. Jackson (2014) 58 Cal.4th 724, 749.) “‘A reversal for
insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict.’” (People v. Manibusan
(2013) 58 Cal.4th 40, 87.)
“‘[A]ttempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.’” (People v. Smith (2005)
37 Cal.4th 733, 739 (Smith); see Pen. Code, §§ 187, 664.) Delgado
challenges only the sufficiency of the evidence supporting the
jury’s implied finding that he acted with the requisite intent to
kill. “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.” (People v. Sánchez (2016) 63 Cal.4th
411, 457; accord, Smith, at p. 741 [“intent to kill or express
malice, the mental state required to convict a defendant of
attempted murder, may in many cases be inferred from the
defendant’s acts and the circumstances of the crime”].)
2. Substantial evidence supports the jury’s finding that
Delgado intended to kill John Doe
Delgado contends there was not substantial evidence of his
intent to kill John Doe. Delgado does not dispute that he was the
individual depicted in the surveillance video who fired a gun at
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John Doe. Instead, he argues that Delgado’s firing a gun from
approximately two to three car lengths away does not support an
inference that he acted with the specific intent to kill, and “[a]t
best, the evidence suggested [he] intended to assault the victim.”
However, viewed in the light most favorable to the verdict, the
surveillance video supported the jury’s finding that Delgado acted
with the requisite intent.
The surveillance video shows Delgado walking toward the
parking lot while putting on gloves and removing a handgun from
his waistband. Delgado deliberately turned and entered the
parking lot without hesitation. Once he had an unobstructed
view of John Doe, Delgado assumed a shooting stance, extended
both arms, aimed the handgun directly at John Doe, and fired
multiple rounds. He continued shooting even as John Doe
ducked for cover and Jane Doe got out of the car to flee. When he
ceased shooting, Delgado walked back to his companion, who had
been waiting for him on the sidewalk, and they casually walked
away. These circumstances reasonably supported an inference
that Delgado intended to kill rather than merely assault or
intimidate John Doe. (See Smith, supra, 37 Cal.4th at p. 741
[“‘[t]he act of firing toward a victim at a close, but not point
blank, range “in a manner that could have inflicted a mortal
wound had the bullet been on target is sufficient to support an
inference of intent to kill”’”].)
The cases relied on by Delgado do not support a different
conclusion. Delgado contrasts the facts here with those in Smith,
supra, 37 Cal.4th 733, in which the defendant fired a
single round into a slowly moving car from approximately one car
length away as the car pulled away from the curb, shattering the
rear windshield but narrowly missing the woman who was
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driving and her infant son who was in a rear-facing car seat
behind her. (Id. at pp. 732, 737-738.) The Supreme Court
concluded the jury reasonably inferred the defendant possessed
an intent to kill both the woman and her infant son where the
defendant fired at them from close range and they were in his
line of fire; further, the shooting followed the defendant’s
altercation with the woman’s boyfriend. (Id. at pp. 736, 742-743.)
Delgado also contrasts this case with People v. Lashley
(1991) 1 Cal.App.4th 938, 945 (Lashley), in which the Court of
Appeal concluded that the circumstances surrounding a shooting
at close range showed an intent to kill. In Lashley, the defendant
threatened the victim and shouted racial epithets at him, aimed
his rifle in the victim’s direction, and fired a shot that struck the
victim’s arm and pierced his lung. (Id. at p. 943.) The Court of
Appeal concluded there was substantial evidence to support the
trial court’s finding that the defendant possessed an intent to kill,
including the defendant’s threat to harm the victim, that the
defendant took aim before firing, and that defendant inflicted
serious injuries. (Id. at p. 945.)
Although Delgado stood farther away from John Doe than
the defendant in Smith, and there was not additional evidence as
in Lashley of Delgado’s animus toward John Doe, the evidence
that Delgado put on gloves and walked into the parking lot, stood
in a shooting stance, and fired his gun multiple times at
John Doe, who was in his direct line of sight, provided
substantial evidence to support the jury’s finding that he
intended to kill John Doe.
Delgado points out that the video did not show that
John Doe was injured. But the fact that John Doe was able to
escape without any physical injury does not negate a reasonable
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inference that Delgado intended to kill. (See People v. Avila
(2009) 46 Cal.4th 680, 702 [degree of injury is not dispositive of
intent to kill, and a defendant may be convicted of attempted
murder even “when no injury results”]; Lashley, supra,
1 Cal.App.4th at p. 945 [“the victim may have escaped death”
because of the defendant’s “poor marksmanship,” but that does
not “necessarily establish a less culpable state of mind”].)
Finally, Delgado asserts that if he had wanted to kill
John Doe, he would have pursued John Doe after unsuccessfully
trying to shoot him, but instead he walked in the opposite
direction. Although the jury could have drawn an inference that
Delgado’s failure to chase John Doe showed that he did not
intend to kill, it is not our role to reweigh the evidence and
substitute our judgment for that of the jury. (See People v. Brown
(2014) 59 Cal.4th 86, 106 [“‘[I]f the circumstances reasonably
justify the jury’s findings, the judgment may not be reversed
simply because the circumstances might also reasonably be
reconciled with a contrary finding.” [Citation.] We do not
reweigh evidence or reevaluate a witness’s credibility.’”].)
B. The Trial Court Did Not Abuse Its Discretion in Denying
Delgado’s Motion To Sever His Trial
1. Procedural background
Prior to trial Delgado moved to sever the charges against
him into three separate trials: one trial on the two attempted
murder counts (counts 1 and 2), a second trial on the robbery and
attempted robbery counts (counts 3 and 4), and a third trial on
count 9 for possession of a firearm. Delgado stated that if the
court granted his motion to sever, he would plead to counts 6, 7,
and 8. Delgado argued that counts 6 and 7 (relating to events at
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the retail store) were “completely unrelated” to the other counts
and would simply provide “propensity evidence.” Count 9 for
possession of a firearm was the strongest count, which would
elevate the weaker counts. Further, counts 1 through 4 raised
only identification issues, but identity was not an issue in
counts 6 through 9.
The prosecutor argued there was no need to sever the
charges given that all the counts related to a “crime spree” during
the two-week period from December 23 to January 3. Further,
the crimes were mostly of the same class of crime: the attempted
murder charges, the robbery charges, and the firearm charges
were all assaultive crimes, and the perpetrator used a firearm in
every incident except for the grand theft crime committed in the
retail store. Further, evidence that Delgado drove the same
vehicle and wore an ankle monitor with GPS tracking during the
incidents was cross-admissible. Therefore, several of the
witnesses would need to testify at each trial.
After hearing argument, the trial court denied the motion,
noting the cross-admissibility of the evidence regarding the ankle
monitor data and the truck Delgado drove during three of the
incidents.
2. Governing law
Section 954 provides that two or more “different offenses”
may be joined in a single case when the offenses are “connected
together in their commission or . . . [are] of the same class of
crimes or offenses.” Joinder “is intended to promote judicial
efficiency.” (People v. Landry (2016) 2 Cal.5th 52, 75.) Further,
“joinder ‘is the course of action preferred by the law.’” (People v.
Westerfield (2019) 6 Cal.5th 632, 689 (Westerfield).) However, the
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trial court has discretion to sever counts “in the interest of justice
and for good cause shown.” (§ 954; see Westerfield, at p. 689.)
“Where joinder is proper under section 954, ‘[t]he burden is
on the party seeking severance to clearly establish that there is a
substantial danger of prejudice requiring that the charges be
separately tried.’” (People v. Gomez (2018) 6 Cal.5th 243, 275
(Gomez).) We review the trial court’s denial of a motion to sever
for an abuse of discretion. (People v. Vargas (2020) 9 Cal.5th 793,
817.) “‘In determining whether a trial court’s refusal to sever
charges amounts to an abuse of discretion, we consider
four factors: (1) whether evidence of the crimes to be jointly tried
is cross-admissible; (2) whether some charges are unusually
likely to inflame the jury against the defendant; (3) whether a
weak case has been joined with a stronger case so that the
spillover effect of aggregate evidence might alter the outcome of
some or all of the charges; and (4) whether any charge carries the
death penalty or the joinder of charges converts the matter into a
capital case.’ [Citation.] ‘We then balance the potential for
prejudice to the defendant from a joint trial against the
countervailing benefits to the state.’ [Citation.] However, ‘[i]f the
evidence underlying the joined charges would have been cross-
admissible at hypothetical separate trials, “that factor alone is
normally sufficient to dispel any suggestion of prejudice and to
justify a trial court’s refusal to sever properly joined charges.”’”
(Westerfield, supra, 6 Cal.5th at p. 689.)
“‘When exercising its discretion, the court must balance the
potential prejudice of joinder against the state’s strong interest in
the efficiency of a joint trial.’ [Citation.] To successfully claim
that the trial court abused its discretion in denying a motion to
sever, a ‘“‘defendant must make a clear showing of prejudice’”’ by
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demonstrating that the denial ‘exceeded the bounds of reason.’”
(Westerfield, supra, 6 Cal.5th at p. 689.)
3. Joinder of all charges did not unduly prejudice
Delgado
Delgado contends the trial court abused its discretion in
denying the motion to sever, focusing on two of the four factors:
the cross-admissibility of the evidence (the ankle monitor
evidence and identification of Delgado’s truck) and whether
joinder of the counts allowed a weaker case (the attempted
murders) to be tried with a stronger case (for robbery, burglary,
and possession of a firearm). The Attorney General responds
that having separate trials would have been inefficient and a
waste of resources, and further, even if the evidence was not
cross-admissible, the other three factors did not support
severance. There was no abuse of discretion.
Delgado argues the evidence supporting the counts for
robbery and burglary was strong because there were
eyewitnesses or victims who could identify Delgado; by contrast,
there were no witnesses to the attempted murders, and instead,
the prosecutor relied entirely on the surveillance footage.
However, the jury was able to look at Delgado in the courtroom to
determine if he was the shooter in the video. In addition, the
ankle monitor evidence placed Delgado at the scene of the
shooting. Moreover, “[a] mere imbalance in the evidence . . . will
not indicate a risk of prejudicial ‘spillover effect,’ militating
against the benefits of joinder and warranting severance of
properly joined charges.” (People v. Soper (2009) 45 Cal.4th 759,
781 (Soper).) Rather, severance is warranted only where joinder
creates a substantial risk that evidence supporting a stronger
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charge will improperly influence the jury’s consideration of an
otherwise weak charge. (Ibid.)
In addition, as Delgado acknowledges, the attempted
murders were the more serious charges. He fails to show why the
evidence of Delgado’s commission of the less serious charges
(taking the backpack from Sara, attempting to steal from a retail
store, and having a firearm in his car) would have caused the
jury to believe he committed the attempted murders. The fact
the jury acquitted Delgado of the attempted murder of Jane Doe
supports a contrary finding—that the jury could consider each
count separately and that the evidence on the other counts did
not prejudice the jury against him. (See Gomez, supra, 6 Cal.5th
at p. 277 [“the fact that the jury acquitted Gomez of the charge
that he robbed [the victim] and could not reach a verdict on the
[other] charges does tend to show that ‘the jury was capable of,
and did, differentiate among [Gomez’s] crimes’”].)
Further, the benefits of joinder were not outweighed by the
possible prejudice to Delgado. If the court had ordered separate
trials, the prosecution would have needed to call witnesses and
introduce ankle monitor data at each trial to show that Delgado
was present at the scenes of the crimes. In addition, empaneling
separate juries and conducting separate trials would have wasted
judicial resources. “[A]s a general matter, a single trial of
properly joined charges promotes important systemic economies.
Whenever properly joined charges are severed, the burden on the
public court system of processing the charges is substantially
increased.” (Soper, supra, 45 Cal.4th at p. 782.) Delgado has
failed to carry his burden to demonstrate a “clear showing of
prejudice” that outweighed the benefits of joinder. (Alcala v.
14
Superior Court (2008) 43 Cal.4th 1205, 1229; see Gomez, supra,
6 Cal.5th at p. 275.)
Finally, Delgado contends the trial of all the charges
together denied him due process of law. “‘[E]ven if a trial court’s
ruling on a motion to sever is correct at the time it was made, a
reviewing court still must determine whether, in the end, the
joinder of counts or defendants for trial resulted in gross
unfairness depriving the defendant of due process of law.”
(Soper, supra, 45 Cal.4th at p. 783; accord, Gomez, supra,
6 Cal.5th at p. 277.) The defendant bears the “high burden of
establishing that the trial was grossly unfair and that he was
denied due process of law.” (Soper, at p. 783.) Here, as in Soper,
the evidence was “straightforward and distinct” and
“independently ample” to support Delgado’s convictions. (Id. at
p. 784.) As discussed, the evidence to support the attempted
murder (the surveillance video and ankle monitor evidence) was
straightforward and distinct from the evidence of the robbery and
attempted robbery (the testimony of Sara and Kathie and ankle
monitor evidence from the day of the offenses), as well as the
grand theft and burglary of the retail store (the testimony of an
asset protection manager for the store who had supervised
Gurrola, screenshots of the surveillance videos, and ankle
monitor data from the day of the offenses), and possession of the
firearm found in Delgado’s truck (testimony from the parole
agent who searched the truck). In addition, the trial court
instructed the jury with CALCRIM No. 3515, stating: “Each of
the counts charged in this case is a separate crime. You must
consider each count separately and return a separate verdict for
each one.” This instruction to consider each charge separately
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“mitigated the risk of any prejudicial spillover.” (Soper, at
p. 784.)
DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
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