P. v. Delgado

Filed 10/19/06 P. v. Delgado CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This case, along with four others we address in separate opinions,[1] arises from a violent street fight between rival gang members.

BACKGROUND

I. August 2002 Offense

On August 25, 2002, police officers responded to a report of a fight involving several people.[2] They arrived to find two individuals lying on the ground covered in blood. Both appeared to have multiple stab wounds and other visible injuries, and one of the victims was unresponsive. En route to the hospital, victim Grame Kanongataa said he and his friends were at the Arco gas station when they were attacked by a group of approximately 14 people. Kanongataa appeared to have been drinking alcohol. He refused to answer further questions about the incident and became so combative with hospital staff that he had to be restrained. Kanongataa suffered 10 to 12 puncture wounds during the fight. These were stapled closed and he was discharged from the hospital the same night.

Victim William Rodriguez drifted in and out of consciousness on the way to the hospital, and he appeared to be highly intoxicated. He was mostly unresponsive to questions about the incident but eventually stated that he was cleaning a car windshield when he was attacked by a group of men. At the hospital, exploratory surgery was performed to determine the extent of Rodriguez’s injuries. He had sustained stab wounds and a deep puncture wound to his torso, near the liver, but the internal organs remained undamaged. Rodriguez had also been struck several times with a blunt instrument.

Witnesses interviewed at the scene reported that the victims had been assaulted on the gas station’s sidewalk and then chased into the road by a group of individuals who fled before the police arrived. The assault appeared gang-related. The attackers, who appeared to be members of the Sureño gang, rode in as many as five vehicles. One of these vehicles ran into Kanongataa, knocking him to the ground.

When he was interviewed, Erlin Rodriguez, William’s brother, referred to the attackers as “ ‘scraps,’ “ a derogatory name for members of the Sureño gang, and he admitted he and William were Norteño gang members. Erlin said he had yelled a derogatory statement about the Sureño gang to some passing cars. These cars stopped and the attackers emerged, yelling derogatory remarks about Norteños and running toward Erlin. As he fled, pursued by Antonio Hernandez, he yelled to William and Kanongataa for help. Erlin witnessed the ensuing fight. He told police one of the attackers hit William with an “ ‘ASP’ style baton,’ “ and the assailants hit and kicked William numerous types after he fell to the ground.

Later that night, Hernandez and other individuals brought Luis Santana to the hospital for treatment of a stab wound to Santana’s arm. Police officers who reported to the hospital noticed several of these individuals had blood stains on their clothing, and they were not forthcoming in explaining what had happened. Santana initially told police he had been at a wedding reception, where he became extremely intoxicated. He did not know where he went afterward but believed he cut his arm when he fell onto a piece of glass. Later, on September 5, 2002, Santana acknowledged to police that he had been involved in the altercation, but he claimed he was the one who was attacked. He admitted striking William Rodriguez with a black stick but said he did so only after Rodriguez stabbed him. When Hernandez was interviewed on September 12 and 13, 2002, he also claimed the victims provoked the fight. Though he admitted being a gang member, Hernandez denied assaulting or stabbing anyone, claiming he had only watched the fight and chased one of the victims. He refused to identify anyone except Santana.

A female witness who had been riding in Santana’s car said many of the suspects were at a wedding reception earlier that evening, and afterward she went with Santana and Hernandez to Benjamin Moreno’s house. Many Sureño gang members were present here. Around 1:00 a.m., four to five carloads of people left to go to another location. Santana drove his Volkswagen, taking Hernandez, the witness and another female passenger. She also recalled that Martin Mesa drove his white Ford Taurus and took several passengers. While driving, the group encountered the victims at a gas station, and gang-related slurs were exchanged. Then, the men exited their cars and attacked the victims. The witness believed someone in her group may have passed around knives. She identified Jose Gomez as having been at Moreno’s house, and she identified Santana, Moreno, Cesar Ramirez and Sergio Zarate as having been involved in the assault.

Another female witness placed appellant Jose Alfredo Delgado, among others, at Moreno’s house. While the group was at Moreno’s house, this witness heard Moreno and Delgado suggesting the group go to South Park and “fuck up some chaps,” referring to Norteño gang members. Although she did not recall who had stabbed the victims, she knew Moreno, Delgado and Mauricio Cuevas were all carrying small folding knives. The witness said Santana, Hernandez, Mesa, Moreno, Cuevas, Delgado, Jesus Flores and another car containing about four more people left Moreno’s house and were later involved in the assault at the gas station. All these men jumped out of the cars to confront the group at the gas station, and all participated in the assault. The witness saw Santana strike Rodriguez with a stick when Rodriguez was lying on the ground. After the incident, Santana told her to tell police he had cut his arm on a piece of glass, and Hernandez told her, “ ‘You better not talk with the cops.’ “

II. March 2003 Offense

On March 10, 2003, Delgado and another individual assaulted a lone victim near a community park. They kicked and punched the victim several times in the face and upper body, knocking him to the ground. The victim believed one of his attackers was possibly wearing brass knuckles, and one of them yelled “VSL” during the assault. The victim suffered lacerations on his elbow and lip and appeared to be missing a front tooth. Delgado pleaded guilty to a charge of felony assault (Pen. Code § 245, subd. (a)(1))[3] regarding this incident, and on September 11, 2003, he was placed on formal probation for four years. Approximately three weeks later, he was arrested in connection with the August 2002 assault.

III. Procedural History

The district attorney presented evidence about the August 2002 assault to a grand jury, and the grand jury returned an indictment against 14 defendants. Eventually, after motions and changes of plea resulted in the early resolution of charges against some defendants, a fourth amended indictment was filed against only six defendants: Cuevas, Delgado, Gomez, Hernandez, Mesa and Santana. Count I charged them all with the attempted premeditated murder of William Rodriguez (§§ 664, subd. (a), 187, subd. (a)); count II charged them with the attempted premeditated murder of Grame Kanongataa; count III charged them with assault with a deadly weapon against Rodriguez (§ 245, subd. (a)(1)); counts IV and V charged them with assault with a deadly weapon against Kanongataa (count IV referring to the use of knives and baton-type weapons, and count V referring to use of a motor vehicle); count VI charged them with assault with a deadly weapon against Erlin Rodriguez; count VII charged them with participation in a street gang (§ 186.22, subd. (a)); and count VIII charged Santana with threatening a witness (§ 136.1, subd. (c)(1)). The indictment also alleged enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and commission of crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)).[4] On July 26, 2004, the trial court denied Delgado’s motion to dismiss the indictment (§ 995), finding sufficient evidence presented to the grand jury linked him to the crimes charged.

On May 28, 2004, the court granted severance motions filed by Delgado and other defendants and divided the remaining 10 cases into two groups of five defendants. In “Group A,” the court placed Bejar, Santana, Gomez, Hernandez and Cuevas. “Group B” consisted of Zarate, Delgado, Ramirez, Mesa and Gonzalez. Later, when only six defendants remained in the two groups, the court granted the prosecution’s motion for consolidation and consolidated the six cases for trial. Upon the in limine motions of Delgado and others, the court ordered the statements of certain codefendants redacted pursuant to People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123. However, the court denied Delgado’s in limine motion to exclude all codefendant statements pursuant to Crawford v. Washington (2004) 541 U.S. 36, and denied his motion to bifurcate trial on the gang enhancement and to exclude expert testimony about gangs.

On October 13, 2004, Delgado waived his rights and pleaded no contest to the attempted murder of Grame Kanongataa and assault with a deadly weapon on William Rodriguez. (§§ 187, 664, 245, subd. (a)(1).) He also admitted enhancements to both charges for personally inflicting great bodily injury and committing crimes to benefit a street gang. (§§ 12022.7, 186.22, subd. (b)(1).) On the change of plea form, Delgado indicated his understanding that he could be sentenced to a maximum term of 26 years imprisonment and subject to a $10,000 restitution fine. He also affirmed that he was making an “open” plea, with no agreement or indication as to the sentence he would receive.

The prosecutor argued a maximum term of imprisonment should be imposed, as did the probation department. Specifically, the probation department recommended that Delgado be sentenced to consecutive upper terms for both the attempted murder and assault with a deadly weapon counts, plus enhancements, plus a consecutive sentence of one year in the March 2003 offense for which Delgado had previously received probation. The probation department suggested a total prison term of 28 years, 4 months.

On November 29, 2004, shortly before Delgado’s scheduled sentencing hearing, the prosecution filed an addendum to its statement in aggravation. According to this addendum, a witness at the preliminary hearing in the People’s ongoing case against Bejar testified that, on the night of the August 2002 fight, a person she knew as “Evil T” re-entered the backseat of Cuevas’s car holding a bloody knife. He smiled at her and said, “I know you won’t be a snitch.” After examining a series of photographs, this witness identified the knife-wielder as Delgado. Delgado’s counsel immediately filed a response disputing this report. Citing her statement to police and grand jury testimony, Delgado’s attorney argued the witness had consistently identified Bejar as “Evil T.” Delgado also filed a motion to preclude consideration of the witness’s recent testimony in his sentencing or, in the alternative, to permit him to examine her at a section 1204 hearing.

At the December 17, 2004 sentencing hearing, the trial court granted Delgado’s motion and stated it would not consider the recent testimony submitted by the prosecution for any purpose. Instead of the upper terms sought by the prosecution and recommended by the probation department, the court sentenced Delgado to middle terms for all three offenses and ordered the assault sentence to run concurrently with the attempted murder sentence. The court imposed great bodily injury and gang enhancements as to the attempted murder count but stayed these enhancements as to the assault count. As a result, with the consecutive one-year term imposed for his March 2003 offense, Delgado was sentenced to a total of 21 years imprisonment.

DISCUSSION

Delgado’s appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying one potentially arguable issue: “Did the court abuse its discretion in denying appellant’s request for probation and sentencing him to a twenty-one year state prison term?” We have reviewed the entire record, including sealed grand jury transcripts available only to the court, and we agree with counsel’s assessment that no issue warrants further briefing.

DISPOSITION

The judgment is affirmed.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] People v. Cuevas (Oct. 19, 2006, A109146), People v. Gomez (Oct. 19, 2006, A110353), People v. Hernandez (Oct. 19, 2006, A109214) and People v. Mesa (Oct. 19, 2006, A109157).

[2] In light of the plea, our recitation of facts regarding the incident derives from the probation report and, to some extent, grand jury testimony. (See People v. Barasa (2002) 103 Cal.App.4th 287, 290, fn. 1.)

[3] All statutory references are to the Penal Code.

[4] An additional enhancement to count I was alleged against Santana only for weapons use. (§ 12022, subd. (b)(1).)