P. v. Delgado 6/13/07 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G036754

Case Date: 08/29/2007

Preview:Filed 6/13/07 P. v. Delgado CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. ISAAC ANTHONY DELGADO, Defendant and Appellant. G036754 (Super. Ct. No. 04WF1875) OPINION

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed and remanded for resentencing. Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent. * * *

INTRODUCTION Defendant Isaac Anthony Delgado appeals from a judgment entered after a jury found him guilty of carrying a concealed dirk or dagger, street terrorism, and assault with a deadly weapon. The jury found true the enhancement allegations that defendant personally used a knife and inflicted great bodily injury in the commission of the assault with a deadly weapon offense, and committed that crime 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 any criminal conduct by members of that gang. Defendant contends the enhancement finding that he committed the assault with a deadly weapon for the benefit of a criminal street gang must be stricken because (1) the trial court erroneously admitted an expert witness's testimony regarding defendant's specific intent, and (2) defendant received ineffective assistance of counsel. Defendant also contends the trial court erred by imposing the upper term for each count based on aggravating factors found true by the trial court, not by a jury. We affirm. The trial court did not err in admitting the prosecution's expert witness testimony because the expert did not testify defendant specifically intended to benefit a criminal street gang in the commission of the assault with a deadly weapon offense. As discussed in detail post, even if defendant's legal representation had been deficient in the manner asserted by defendant, it is not reasonably probable the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) Defendant's ineffective assistance of counsel claim therefore fails. In light of the United States Supreme Court's recent decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), we remand for resentencing on the sole ground the trial court imposed an upper term sentence based on aggravating factors found true by the court rather than by a jury beyond a reasonable doubt. 2

FACTS On June 29, 2004, Antonio B. was walking down a street in Garden Grove after school with his friends, Irvin G. and Danny C., when he noticed defendant staring at him. Various accounts of what happened next were presented at trial. All accounts, however, agree that Antonio's confrontation with defendant resulted in defendant stabbing Antonio in the chest. Douglas Pluard, a Garden Grove police officer, testified he interviewed Antonio in the hospital after the incident. Pluard tape-recorded his interview with Antonio, but did not tell Antonio the interview was being taped. Antonio told Pluard that after defendant stared at him, defendant, who was sitting on a bicycle, said something to the effect of "hey, this is Santana." Antonio "just turned away," and walked away from defendant and a second man who was also sitting on a bicycle. Antonio said defendant got off his bike and walked up behind him. Defendant grabbed his arm, "kind of spun him around," and said "what's up?" Antonio said defendant struck him in the chest. After Antonio felt "some extreme pain" in his chest, he saw defendant was holding a knife. Antonio "took a fighting stance to try and defend himself"; he punched defendant in the face. After defendant tried to stab Antonio again, Antonio ran across the street. Defendant gave chase. While running, Antonio saw blood on his chest and realized he had been stabbed. He reached the other side of the street, and lay down on the sidewalk. Defendant stopped pursuing Antonio, ran back to his bicycle, and rode away. Officer Pete Arrellano of the Garden Grove Police Department interviewed Irvin later that afternoon; this interview was tape-recorded without Irvin's knowledge. Irvin told Arrellano that there had been a "hit up" that afternoon. Irvin explained that as he, Antonio, and Danny walked by defendant and a second person, who were both sitting on bicycles, the latter one asked them where they were from. Antonio said something in 3

response, but Irvin did not hear what was said. Defendant got off his bicycle and said, "this is Santa Nita." Irvin then saw Antonio and defendant involved in some kind of altercation. He saw a knife in defendant's hand; defendant attempted to stab Antonio. Antonio threw punches at defendant and then ran to the other side of the street where he leaned up against a chain link fence and fell to the ground. Irvin said defendant initially chased after Antonio but then stopped, ran back to his bicycle, and rode away. Irvin told Arrellano that he had not been more forthcoming with information at the crime scene because he thought the police officers were jerks and also because he was concerned about being looked upon as a "rat." Antonio and Irvin testified at trial, but described a sequence of events different from what they had described in their interviews with Pluard and Arrellano, respectively. Antonio testified that after he and defendant made eye contact, defendant started walking behind Antonio, Irvin and Danny. Antonio testified he turned around and asked something to the effect of "you know me?" or "[w]hy you staring at me?" Defendant asked Antonio whether he was going out with his "lady" from Santa Ana. Antonio testified he truthfully told defendant he was going out with defendant's lady, but could not remember her name. Antonio testified he then struck defendant in the eye, and Irvin and Danny joined in by hitting defendant as well. Defendant then stabbed Antonio in the chest. Antonio testified he has never heard of the Santa Nita criminal street gang and did not hear defendant say, "this is Santa Ana." Antonio also testified that it is not a good thing to be classified as a "rat"--meaning one who provides information to the police. Irvin similarly testified at trial that Antonio struck the first blow against defendant, and that he and Danny joined in by hitting defendant. Irvin admitted having heard of Santa Nita, but denied telling Arrellano that defendant said, "this is Santa Nita" 4

at the time of the incident. He testified he did not recognize defendant, and stated he did not see defendant on a bicycle. He denied identifying defendant to the police. Defendant testified at trial that he was attacked by Antonio, Danny, and Irvin, and that he was fearful and tried to defend himself. Defendant stated he had a knife in his possession for self-protection and admitted he stabbed Antonio. He denied being a gang member. Officer Jonathan Wainwright of the Garden Grove Police Department testified as an expert witness. He testified that Santa Nita is a criminal street gang and one of its rival gangs is the Darkside criminal street gang. He opined that defendant was an active participant of Santa Nita on June 29, 2004. His opinion was based on, inter alia, defendant's own prior statements claiming Santa Nita. Wainwright also opined Antonio was an active participant of the Darkside criminal street gang on June 29, 2004. During direct examination, the prosecutor posed a hypothetical question to Wainwright, which assumed as true the circumstances first described by Antonio and Irvin to the police. Wainwright testified that based on those assumed facts, the offense of assault with a knife would have been committed for the benefit of Santa Nita. Wainwright explained that the incident was "a classic gang hit up." He stated that a hit-up involves a gang member encountering someone who "looks like a gang member" and then asking that person where he or she is from. If that person responds with the name of a rival gang, the common outcome is violence "anywhere from a simple assault and battery or using their hands and fists, all the way up to using handguns to a homicide." If the person does not respond and tries to ignore the question, he or she will also be met with violence. Successful hit-ups enhance the perpetrator's reputation within the gang and the gang's reputation with other gangs. They also assist the perpetrator's gang in its recruiting efforts.

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PROCEDURAL BACKGROUND Defendant was charged in an amended information with (1) attempted murder in violation of Penal Code sections 664 and 187, subdivision (a) (count 1); (2) carrying a concealed dirk or dagger in violation of section 12020, subdivision (a)(4) (count 2); (3) street terrorism in violation of section 186.22, subdivision (a) (count 3); and (4) assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 4). (All further statutory references are to the Penal Code.) The amended information contained multiple conduct enhancement allegations: (1) as to counts 1 and 4, pursuant to section 12022, subdivision (b)(1), defendant personally used a deadly weapon (a knife) within the meaning of section 1192.7, in the commission of those crimes; (2) as to counts 1 and 4, pursuant to section 12022.7, subdivision (a), and within the meaning of sections 1192.7 and 667.5, defendant personally inflicted great bodily injury; and (3) as to counts 1, 2, and 4, pursuant to section 186.22, subdivision (b)(1), defendant committed those offenses "for the benefit of, at the direction of, and in association with SANTA NITA, a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang." The jury found defendant guilty of counts 2, 3, and 4. The jury found true the conduct enhancement allegation that defendant committed count 4 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 any criminal conduct by members of that gang. The jury also found true that defendant personally used a deadly or dangerous weapon (a knife) and personally inflicted great bodily injury during the commission of count 4. The trial court declared a mistrial as to count 1, and ultimately granted the prosecution's motion to dismiss count 1. The trial court sentenced defendant to a total prison term of 17 years by imposing: (1) the upper term of four years on count 4; (2) a consecutive three-year term 6

for the infliction of great bodily injury enhancement; (3) a consecutive 10-year term for the gang enhancement; (4) the upper term of three years on count 2, to run concurrently with the term imposed for count 4; and (5) the upper term of three years on count 3, to run concurrently with the term imposed for count 4.1 The court stated on the record that it imposed the upper term sentences based on findings (1) defendant's crimes involved great violence, (2) defendant engaged in violent conduct that indicates a serious danger to society, (3) his prior sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness, and (4) his prior performance on probation was unsatisfactory. Defendant appealed.

DISCUSSION I. WAINWRIGHT DID NOT OFFER EXPERT OPINION TESTIMONY ON DEFENDANT'S SPECIFIC INTENT. The jury found true that defendant committed the crime of assault with a deadly weapon "for the benefit of, at the direction of, or in association with any criminal street gang, to wit: SANTA NITA, with the specific intent to promote, further or assist in any criminal conduct by members of that gang." Defendant contends the trial court erred by allowing Wainwright to provide expert witness testimony on the issue of defendant's specific intent.2

The trial court struck the personal use of a deadly weapon enhancement "for purposes of sentencing only." 2 The Attorney General contends defendant has waived this argument because he failed to raise this objection to Wainwright's expert testimony during trial. Defendant argues any such objection would have been futile in light of the trial court's earlier comments which generally described its view of the admissibility of expert testimony. Defendant further argues that if an objection to Wainwright's expert testimony would not have been futile, defendant's counsel provided ineffective assistance of counsel by failing to so 7

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"`As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]'" (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) In cases where a gang enhancement is alleged, expert testimony regarding the "culture, habits, and psychology of gangs" is generally permissible because these subjects are "`sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (Ibid.) For example, an expert may properly testify about the size, composition, or existence of a gang; "motivation for a particular crime, generally retaliation or intimidation"; and "whether and how a crime was committed to benefit or promote a gang." (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-658; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 ["Expert testimony repeatedly has been offered to show the `motivation for a particular crime, generally retaliation or intimidation' and `whether and how a crime was committed to benefit or promote a gang'"]; People v. Valdez, supra, 58 Cal.App.4th at pp. 507-509 [holding expert opinion concerning whether the defendant acted for the benefit of a gang was admissible under the circumstances of the case].) An expert, however, may not testify that a specific individual had specific knowledge or possessed a specific intent. (People v. Killebrew, supra, 103 Cal.App.4th at p. 658.) In People v. Killebrew, the appellate court held an expert's opinion testimony was improper: "Through the use of hypothetical questions, [the expert] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the expert] testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action. [

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