People v. Delgado CA2/7

Opinion

Filed 8/20/26 P. v. Delgado CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.

2 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 3 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.

4 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 5 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.

6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 15 “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.