P. v. Delgado

 

 

 

 

 

Filed 1/21/14  P. v. Delgado CA2/5

 

 

 

 

 

>NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   ADAM DELGADO,               Defendant and Appellant.

B244906         (Los Angeles County       Super. Ct. No. KA088341)

 

            APPEAL from a judgment of the href="http://www.mcmillanlaw.us/">Superior Court of Los Angeles County,
Robert J. Perry, Judge.  Affirmed.

            Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.

            Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Victoria B. Wilson and Brendan Sullivan, Deputy
Attorneys General, for Plaintiff and Respondent.

 

 

 

 

 

 

I.  INTRODUCTION

 

A
jury convicted defendant, Adam Delgado, of first degree murder.  (Pen. Code, §187,
subd. (a)).href="#_ftn1" name="_ftnref1"
title="">[1]>  The jury
further found true criminal street gang, knife use and handgun use
enhancements.  (§§ 186.22,
subd. (b)(1)(C), 12022, subd. (b)(1), 12022.53, subds. (d), (e)(1).)  The trial
court sentenced defendant to an indeterminate term of 50 years to life in
state prison plus a determinate term of one year.  We affirm the judgment.

 

II.  THE
EVIDENCE

 

Eyewitnesses
identified defendant as one of several gang members who assaulted and,
ultimately, killed a young African-American man, Marquis Le Blanc.  The assault and murder occurred after Mr. Le
Blanc brandished a firearm in the presence of gang members.  One of the eyewitnesses, Arturo Casas, saw
defendant stab Mr. Le Blanc in the chest several times with a knife.  The gang members were known for their hatred
of African-Americans.  The assault was
accompanied by shouts of “Get that nigger,” and words to that effect, together
with gang references.  Mr. Le Blanc died
of a stab wound to the heart followed by a gunshot wound to the head.  

Defendant
testified in his own defense.  He
admitted he was a member of a gang that hated African-Americans.  Defendant testified that despite the gang’s
animosity, he did not hate African-Americans. 
Defendant admitted being present when Mr. Le Blanc was assaulted and
killed.  He denied possessing a
knife  and participating in the aggravated
assault.  Defendant denied stabbing Mr.
Le Blanc.  

 

 

 

 

III.  DISCUSSION

 

A.  Instructional Error

Defendant
argues the jurors should have been instructed that in evaluating  credibility they could consider whether a href="http://www.mcmillanlaw.us/">witness was promised immunity or leniency
in exchange for testimony.  Defendant
asserts the trial court had a sua sponte duty to so instruct pursuant to
CALCRIM No. 226.href="#_ftn2" name="_ftnref2"
title="">[2]>  Defendant notes Mr. Casas, a key witness, had
an agreement with the prosecution concerning his href="http://www.sandiegohealthdirectory.com/">testimony.  Mr. Casas was charged with robbery for
stealing Mr. Le Blanc’s sneakers.  Mr.
Casas was the sole witness to testify defendant stabbed Mr. Le Blanc.  Defendant was represented at trial by Anthony
Robusto.  Defendant asserts Mr. Robusto
was ineffective for failing to request instruction on leniency as it affects
credibility. 

            Any
error was harmless under any standard.  (>Chapman v. California (1967) 386 U.S.
18, 22; People v. Watson (1956) 46
Cal.2d 818, 836.)  And because there was
no prejudice, defendant cannot establish Mr. Robusto was ineffective.  (Strickland
v. Washington (1984) 466 U.S. 668, 697; In
re Crew (2011) 52 Cal.4th 126, 150; People
v. Fairbank (1997) 16 Cal.4th 1223, 1241.) 
First, Mr. Casas told law enforcement officers defendant was the person
who stabbed Mr. LeBlanc.  Mr. Casas made
this disclosure before he was charged with robbery and subsequently offered a
leniency agreement.  Second, the leniency
agreement between Mr. Casas and the prosecution was entered into evidence.  Mr. Casas agreed that in return for his
truthful testimony:  he would >not receive probation; he would be
sentenced to state prison for robbery; the term of imprisonment would be
between two and five years; and the exact sentence would be determined by a
neutral magistrate.   

Third
the prosecutor, Deputy District Attorney John McKinney, addressed the leniency
agreement at length in closing argument to the jury.  Mr. McKinney explained in part:  “Now, for purposes of assessing [Mr. Casas’s]
credibility, you can view [the leniency agreement] in the light most favorable
to the defendant, which is to assume a judge will probably give [Mr. Casas] the
low term at least he thinks and hopes that a judge will give him the low
term.  And I can tell you that his
participation and the fact that he’s snitching and what that means is so
significant that it would probably be difficult for any fair minded person to
want to give him the high term as opposed to the low term, but in assessing his
credibility you’re assessing his state of mind and what’s motivating him to
come in here and tell the truth, or he is telling the truth.  [¶] 
You can assume that he’s trying to get the lowest possible prison that
he can, but the agreement he made doesn’t change his position much at all from
if he had just walked into court on the first day he was charged with robbery
and said, I want to plead guilty, judge. 
I’ll make my argument for why I deserve the lower term as opposed to the
higher term, get sentenced, get either probation or prison and go in there
without a snitch jacket.  [¶]  Going to prison as a snitch is a big deal
based on what you’ve heard in this case, particularly someone who snitches
against [defendant’s gang].  And Mr.
Casas was so concerned about it, you heard his testimony that he was asking me
questions about being beaten up in prison or even being raped in prison as
retaliation for snitching.  You heard the
consequences for snitching, anything from a beating, up to and including
death.  It would have been far easier for
Mr. Casas to say, I’ll take my chances with a judge.  I am not going to snitch.  Who knows, he could have got probation.  He could have got two years anyway.  [¶] 
Sometimes with these agreements the prosecution gives a witness so much
that a juror thinks, how can I trust him? 
Anybody would say anything to get the reduction that the prosecution is
putting . . . on the table in front of this witness.  That didn’t happen here.  The agreement is not much of an inducement at
all.  I submit to you that Casas is
motivated by what made him cry when he saw [the picture of the victim].”    

Fourth,
defense counsel, Mr. Robusto, also addressed Mr. Casas’s credibility in closing
argument to the jury.  Mr. Robusto argued
in part:  “You have Mr. Casas who is
obviously . . . induced to testify.  He’s
induced to testify based upon the leniency agreement, based upon . . . Mr.
McKinney interviewing him hoping that . . . he would say things that would
assist Mr. McKinney.” 

Fifth,
in rebuttal argument, Mr. McKinney noted: 
“[A]s you know from the agreement, my explanation of the agreement and
the documents, which you’ll have an opportunity to read, [Mr. Casas] really
gets no benefit out of testifying in court. 
A minor benefit he gets.  But when
he talked to the police and said [defendant] was the one with the knife getting
[Mr. Le Blanc], there was no benefit. 
There was no discussion . . . there was no inducement for him to say
that.” Sixth, the jury was instructed to use common sense and experience in
considering each witness’s credibility. 
This included whether any witness’s testimony was influenced by any
factor such as bias or personal interest in the outcome of the case.  Given the foregoing there is no question the
jury understood it could consider the more lenient duration of the state prison
terms promised to Mr. Casas in evaluating his believability.  Any instruction omission concerning leniency was
harmless beyond a reasonable doubt.

 

B.  Ineffective
Assistance of Counsel

 

Defendant
also contends Mr. Robusto was ineffective for failing to request instruction
pursuant to CALCRIM No. 522.  CALCRIM No.
522 embodies the rule that provocation inadequate to reduce murder to
manslaughter may nevertheless raise a reasonable doubt whether the defendant
willfully killed with deliberation and premeditation.  (People
v. Avila> (2009)
46 Cal.4th 680, 707; People v. Carasi (2008)
44 Cal.4th 1263, 1306.)  The trial court
had no duty to instruct with CALCRIM No. 522 absent a request.  (People
v. Rogers (2006) 39 Cal.4th 826, 877-879; People v. Mayfield (1997) 14 Cal.4th 668, 778.) 

       Our Supreme Court discussed the
requirements of an ineffective assistance of counsel claim in >People v. Fairbank, supra, 16 Cal.4th at
page 1241:  “[W]hen considering a claim of
ineffective assistance of counsel, ‘a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . .  If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.’ 
(Strickland v. Washington[,
supra,] 466 U.S. [at p.] 697.)  A defendant must prove prejudice that is a ‘“demonstrable
reality,” not simply speculation.’  (People
v. Williams (1988) 44 Cal.3d 883, 937, quoting People v. Stephenson
(1974) 10 Cal.3d 652, 661.)  Prejudice
requires ‘a reasonable probability that a more favorable outcome would have
resulted . . . , i.e., a probability sufficient to undermine confidence in the
outcome.’  (In re Clark (1993) 5
Cal.4th 750, 766, citing Strickland v. Washington, supra, 466
U.S. at pp. 693-694.)” 
(Accord, In re Crew, supra, 52
Cal.4th at p. 150.)

As
noted above, CALCRIM No. 522 embodies the rule that provocation inadequate to
reduce murder to manslaughter may nevertheless raise a reasonable doubt whether
the defendant willfully killed with deliberation and premeditation.href="#_ftn3" name="_ftnref3" title="">[3]  (People
v. Avila, supra, 46 Cal.4th at p. 707; People
v. Carasi, supra, 44 Cal.4th at p. 1306.) 
Division One of the Court of Appeal for the Fourth Appellate District
explained in People v. Hernandez (2010)
183 Cal.App.4th 1327, 1332:  “First
degree murder is an unlawful killing with malice aforethought, premeditation, and
deliberation.  (People v. Chun (2009) 45 Cal.4th 1172, 1181.)  . . . 
Second degree murder is an unlawful killing with malice, but without the
elements of premeditation and deliberation which elevate the killing to first
degree murder.  (Ibid.)  To reduce a murder to
second degree murder, premeditation and deliberation may be negated by heat of
passion arising from provocation.  (>People v. Fitzpatrick (1992) 2 Cal.App.4th
1285, 1295-1296.)  If the provocation
would not cause an average person to experience deadly passion but it precludes
the defendant from subjectively deliberating or premeditating, the crime is
second degree murder.  (>Ibid.).” 
(Accord, People v. Padilla (2002)
103 Cal.App.4th 675, 678.)  The
existence, extent and effect of provocation on the defendant’s mind in relation
to premeditation and deliberation are factual questions for the jury to
resolve.  (People v. Wolfe (1954) 42 Cal.2d 663, 673; People v. Thomas (1945) 25 Cal.2d 880, 903-904.)

            We
find no prejudice to defendant.  The jury
was instructed on the difference between first and second degree murder:  “A defendant is guilty of first degree murder
as a perpetrator or based on a theory of aiding and abetting if the People have
proved that the perpetrator (i.e., the killer) acted willfully, deliberately,
and with premeditation.  The perpetrator
acted willfully if he intended to kill. 
The perpetrator acted deliberately if
he carefully weighed the considerations for and against his choice and, knowing
the consequences, decided to kill. 
The perpetrator acted with premeditation if he decided to kill before
completing the acts that caused death.  [¶]  The length of time the person spends
considering whether to kill does not alone determine whether the killing is
deliberate and premeditated.  The amount
of time required for deliberation and premeditation may vary from person to
person and according to the circumstances. 
A decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and
premeditated.  On the other hand, a
cold, calculated decision to kill can be reached quickly.  The test is the extent of the reflection, not
the length of time.  [¶]  . . . 
[¶]  The People have the burden of
proving beyond a reasonable doubt that the killing was first degree murder
rather than a lesser crime.  If the
People have not met this burden, you must find the defendant not guilty of
first degree murder.”  (Italics added.)  During deliberations, the jury inquired, “Distinction
of 1st degree vs. 2nd degree murder.”  In
response, the trial court reread the foregoing instructions.  

            In
his argument to the jury, Mr. Robusto discussed defendant’s testimony and
credibility.  Mr. Robusto noted defendant
admitted being a gang member.  Defendant
admitted being present at the time Mr. Le Blanc was killed.  He denied that he was armed with a
knife.  Defendant denied stabbing Mr.
LeBlanc.  Mr. Robusto never argued
defendant committed the stabbing in heat of passion after Mr. Le Blanc
brandished a handgun.

            Given
the evidence, instructions, and argument it is not reasonably probable the
verdict would have been more favorable to defendant had Mr. Robusto requested
the instruction with CALJIC No. 522.  The
instructions on deliberation and premeditation required the jury to consider
defendant’s mental state.  In finding
defendant guilty of first degree murder, the jury necessarily found defendant’s
decision to kill was not rash or impulsive but carefully considered.  Consistent with the evidence, the jury found
defendant personally used a knife to murder Mr. Le Blanc.  If the jurors believed defendant was so
provoked he could not deliberate or premeditate, they would not have found him
guilty of first degree murder.  It is not
reasonably probable a provocation instruction would have swayed the jury to
find defendant not guilty of first degree murder.  (See People
v. Avila, supra, 46 Cal.4th at pp. 707-708; People v. Fitzpatrick, supra, 2 Cal.App.4th at pp. 1293-1296.) 

 

C.  The Restitution and Parole Revocation
Restitution Fines

 

Defendant
claims the trial court erred in ordering him to pay a $240 restitution fine (§ 1202.4,
subd. (b)) and a $240 parole revocation restitution fine (§1202.45).  Defendant reasons:  “At the time of [defendant’s] sentencing
proceeding, the minimum restitution and parole revocation [restitution] fine
was $240.  The trial court’s imposition
of this minimum fine reflects [its] intent to impose the statutory minimum
fine.  However, since the criminal
conduct on which [defendant] was sentenced occurred in 2009, he was subject to
the benefit of the law in effect at the time of the offense, i.e., a minimum
restitution fine in the amount of $200. 
Accordingly, the restitution fine and parole revocation [restitution]
fine must be reduced to $200.00.” 

Defendant
did not object to the restitution fines in the trial court.  However, defendant argues restitution in the
amount imposed was not legally authorized. 
Therefore, the argument was not forfeited by the failure to object to
the restitution fines in the trial court. 
(People v. Kunitz (2004) 122
Cal.App.4th 652, 657; People v. Blackburn
(1999) 72 Cal.App.4th 1520, 1533-1534.) 
Defendant is correct that the law in effect when he committed the
present offense must be applied to him. 
(People v. Souza (2012) 54
Cal.4th 90, 143; People v. Hanson
(2000) 23 Cal.4th 355, 361-363.)  When
defendant committed the present murder, on April 17, 2009,
former section 1202.4, subdivision (b)(1), authorized a restitution fine of not
less than $200 or more than $10,000.  (Stats.
2008, ch. 468, §1.)  Section 1202.4,
subdivision (b)(1) was amended effective January 1, 2012, to
provide for a restitution fine of not less than $240 or more than $10,000.  (Stats. 2011, ch. 358, § 1.)  That amendment, which postdates defendant’s
crime, is inapplicable to this defendant. 
(People v. Souza, supra, 54
Cal.4th at p. 143; People v. Hanson,> supra, 23 Cal.4th at pp. 361-367.)  Here, the trial court had the discretion to
set the amount at any level between and including $200 and $10,000.  (Former §1202.4, subd. (b)(1) as amended by
Stats. 2008, ch. 468, §1; People v.
Kramis (2012) 209 Cal.App.4th 346, 350; People
v. Dickerson (2004) 122 Cal.App.4th 1374, 1379.)  The $240 restitution fine imposed in this
case was within that range.  We presume
the trial court applied the law in effect at the time defendant committed the
present offense and chose, in its discretion, to impose a $240 fine.  (Evid. Code, § 664; In re Jacob J. (2005) 130 Cal.App.4th 429, 437-438, disapproved on
another point in In re Julian R. (2009)
47 Cal.4th 487, 499; People v. Mosley (1997)
53 Cal.App.4th 489, 496.)  Under section
1202.45, the parole revocation restitution fine is in the same amount as the
section 1202.4, subdivision (b) restitution fine.  (People
v. Soria (2010) 48 Cal.4th 58, 62; People
v. Smith (2001) 24 Cal.4th 849, 851.) 
There was no error.

 

IV.  DISPOSITION

 

The
judgment is affirmed.

                                    NOT TO BE
PUBLISHED IN THE OFFFICAL REPORTS

 

 

                                    TURNER, P.J.

 

We
concur:

 

 

MOSK                                                            KRIEGLER,
J.