Opinion
H042134
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDRE LESHAWN DELGADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1478037)
A jury convicted defendant Andre Lashawn Delgado of two counts of robbery and one count of assault with a semiautomatic firearm in connection with two robberies at the Aquamaids Bingo Hall in Santa Clara in early 2014. The jury found true allegations that defendant was personally armed with a firearm in the commission of both robberies and knew or should have known that the victim of one robbery was 65 years of age or older. The trial court sentenced defendant to a term of 10 years and 4 months in prison.
On appeal, defendant argues his trial counsel rendered ineffective assistance in failing to file a motion to suppress evidence seized during warrantless searches of his vehicle and cell phone. He also raises two sufficiency of the evidence challenges. In a separate petition for habeas corpus (H044450), which we ordered considered with the appeal, defendant likewise raises a claim of ineffective assistance of counsel. We affirm the judgment. As to the habeas corpus petition, by separate order filed this day we issue an order to show cause returnable in superior court.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The February 19 , 2014 Robbery
On the evening of February 19, 2014, 78-year-old Doris Sablan won several thousand dollars playing bingo at Aquamaids. On her way out to her car, she was pistol-whipped in the head and face and robbed of her purse, which contained her winnings. Witnesses testified the assailant was holding a handgun and wearing a black hoodie with the hood up and tied, obscuring much of his face. Nevertheless, two witnesses made in-court identifications of defendant as the assailant: Jacqueline House and Gerald Fontanares, both of whom also were leaving after playing bingo. House recalled previously seeing defendant playing bingo at Aquamaids and elsewhere. Both House and Fontanares testified that Fontanares attempted to intervene by yelling, "Hey." They agreed that defendant responded by pointing a gun at Fontanares.
A surveillance video depicting the robbery was played at trial. It shows Sablan exiting Aquamaids with a woman police identified as Melissa Daniels following closely behind. Daniels parts ways with Sablan and passes a figure in a dark hoodie. The person in the hoodie approaches Sablan from behind, hits her in the head and face, wrestles something away from her, and runs off. While fleeing, the person in the hoodie extends an arm to the side, in the direction of a person moving towards him or her.
Detective Sergeant Steven Hoesing of the Santa Clara Police Department testified that Daniels appeared to be "targeting" Sablan, so that the assailant would know who to rob. Several days after the robbery, Hoesing observed a gray Dodge Interpid at Daniels's home. Surveillance video from Aquamaids on February 19 showed Daniels was dropped off at the bingo hall in that same vehicle. The Dodge was registered to defendant, whose DMV record indicated he lived at the same address as Daniels. Hoesing considered Daniels and defendant to be persons of interest in the February 19 robbery, but did not have enough evidence to arrest them.
B. The March 5 , 2014 Robbery
On March 5, 2014, a second armed robbery took place, this time inside Aquamaids in the middle of a bingo game. Aquamaids volunteers wearing red vests make cash payouts to winners. Two young black men stole a red vest containing about $8,000 in cash from one such volunteer, Niall Malcolmson, at gunpoint. One of the men was tall and had long dreadlocks; he was holding the gun. The other man was shorter and wore a white baseball hat.
Patsy Bishop, a regular bingo player, testified that the robbers were sitting at her table prior to the robbery. At trial, she identified Christopher Jones—defendant's co-defendant—as the man with dreadlocks and defendant as the man in the baseball hat. Another Aquamaids regular, Ronald Fay, sat between Bishop and the robbers on March 5. He identified Jones as the man who sat directly to his left and who later wielded a gun. Shortly after the robbery, Fay went with officers to do an in-field identification of two people officers had detained. Fay testified that the two individuals he was shown were not the robbers. One of the individuals at the in-field identification was defendant, who Fay recognized as someone who played bingo in the area. Fontanares, one of the February 19 witnesses, also was at Aquamaids on the night of March 5. In court, he identified defendant and Jones as the robbers. He said that it was not until the March 5 robbery occurred that he realized defendant was Sablan's assailant. Another eyewitness, Sylvia Morrison, also identified Jones as the March 5 robber who was armed.
C. Detention , Searches , and Arrests
Officer Kevin Estes was on patrol in the vicinity of Aquamaids on the night of March 5, 2014, when he heard a call on the radio about a robbery there. He learned that two black males had been seen running from the scene. When he was about a quarter of a mile from Aquamaids, he saw a white Honda Civic driving in the opposite direction. It was the only vehicle on the road and it was driving away from the crime scene. After completing a U-turn to pull behind the Honda, he observed the occupants were two black males. (He could not tell if the car was speeding and did not observe any traffic violations.) He pulled the vehicle over. When more officers arrived, they conducted a felony car stop: they called for the driver and passenger to exit the vehicle one at a time. Defendant was the driver; Deandre Egu was the passenger. Once the men were out of the vehicle, officers searched it.
Officer Estes found a wallet in the backseat containing photo identification for Christopher Jones, a black male with dreadlocks. At the time Officer Estes found the identification, he had learned from officers at Aquamaids that one of the armed robbery suspects was a black male with dreadlocks. Officer David Britton, who also participated in the vehicle search, found a cell phone on the driver's side floorboard. He looked through photos on the phone and, from them, determined it belonged to defendant. He looked for text messages but there were none. He also looked at the call log, which showed three recent calls with phone number 608-646-9164. A third officer found $600 in cash in the vehicle.
A second vehicle, the gray Dodge Intrepid associated with the February 19 robbery, also was stopped by police shortly after the March 5 robbery. Daniels and another woman were in that vehicle. The Dodge was stopped across the street from where the white Honda was stopped. After seizing defendant's cell phone, Officer Britton walked across the street to the Dodge, which he knew was suspected of being involved with the robbery as well. Using defendant's cell phone, he called 608-646-9164, the phone number associated with three recent calls. A phone on the patrol car rang.
Following defendant's arrest, police used a Cellebrite device to recover and view deleted text messages from defendant's cell phone. The content of text messages exchanged by defendant and Daniels and by defendant and a contact labeled "Lil Chris" on March 5, 2014 were admitted into evidence. Texts exchanged in the hours before the robbery suggest Daniels was playing bingo. For example, around 6:00 p.m., Daniels referenced various bingo games by name. At 8:28 p.m., she texted defendant "Brittany finally got bingo." Daniels and defendant also exchanged texts regarding red vests. Defendant told Daniels "they" were coming in at about 7:00 p.m. Shortly thereafter, defendant texted Lil Chris regarding where to sit when he came in. Shortly after 9:00 p.m., Lil Chris texted defendant that he had identified the man with the "bankroll," who had "short gray hair." Defendant responded "Get em."
Police executed a search warrant on defendant's residence on the morning of March 6, 2014. They found Jones on the sofa and a loaded 9-mm handgun under a pillow on the same sofa. The gun was operable during test firing.
D. Defendant is Charged
Defendant, Daniels, Jones, and others were charged in an information filed on May 6, 2014. The information charged defendant with three offenses: the March 5 robbery (Pen. Code, §§ 211-212.5, subd. (c); count 1); the February 19 robbery (§§ 211-212.5, subd. (c); count 7); and assaulting Fontanares with a semiautomatic firearm on February 19, 2014 (§§ 245, subd. (b); count 8). The information further alleged that defendant was armed with a firearm during the March 5 robbery (§12022 subd. (a)(1)); personally used a firearm during the February 19 robbery (§12022.53 subd. (b)); personally used a firearm during the assault with a semiautomatic firearm (§ 12022.5, subd. (a)); personally inflicted great bodily injury on Sablan, who was 70 years of age or older, during the February 19 robbery (§§ 12022.7 subd. (c) and 1203 subd (e)(3)); and knew or reasonably should have known that Sablan was 65 years of age or older (§ 667.9 subd. (a)). Counts 7 and 8 later were renumbered to counts 6 and 7.
All further statutory references are to the Penal Code unless otherwise noted.
E. Verdict , Sentencing , and Appeal
The jury returned its verdicts on October 14, 2014. It found defendant guilty of count 1, the March 5 robbery. In connection with that count, the jury found true the allegation that defendant was armed with a firearm (§ 12022 subd. (a)(1)). The jury also convicted defendant of count 6, the February 19 robbery of Sablan. The jury found not true the allegation that defendant personally used a firearm during that robbery, but found true the lesser allegation that he was armed with a firearm (§12022 subd. (a)(1)). The jury further found true the allegation that defendant knew or reasonably should have known that Sablan was 65 years of age or older (§667.9 subd. (a)). But it found not true the allegation that defendant personally inflicted great bodily injury on Sablan. Finally, the jury found defendant guilty of count 7, assault with a semiautomatic firearm, but found not true the allegation that defendant personally used a firearm during the commission of that offense.
The court sentenced defendant to a term of 10 years 4 months: the upper term of five years plus two consecutive one-year terms for the age and arming enhancements on count 6, a consecutive term of two years (one-third of the middle term) on count 7, a consecutive one-year term (one-third of the middle term) on count 1 plus four months (one-third of the middle term) for the arming enhancement.
Defendant timely appealed.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Defendant argues his trial counsel was ineffective in failing to move to suppress the evidence seized during warrantless searches of his vehicle and cell phone.
1. Legal Principles Governing Ineffective Assistance of Counsel Claims
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).) " 'Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excluded evidence in order to demonstrate actual prejudice.' " (People v. Wharton (1991) 53 Cal.3d 522, 576.)
2. Fourth Amendment Jurisprudence
The Fourth Amendment, made applicable to the states through the due process clause of the Fourteenth Amendment, protects the individual against unreasonable searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 646-660.) As a general rule, warrantless searches are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. (Arizona v. Gant (2009) 556 U.S. 332, 338 (Gant).)
One such exception applies when an officer legally stops a vehicle and "has some articulable, reasonable suspicion that the persons stopped may be dangerous . . . ." (United States v. McGregor (1st Cir. 2011) 650 F.3d 813, 820 (McGregor); Michigan v. Long (1983) 463 U.S. 1032, 1049 (Long).) Under those circumstances, the officer "can pat them down and search the car's interior—including closed compartments—for weapons that they could quickly lay their hands on. [Citation.] But the scope of the search must be limited to this protective purpose." (McGregor, supra, at p. 820; Long, supra, at p. 1049.) Another recognized exception to the Fourth Amendment's warrant requirement is "the automobile exception . . . , which allows police officers to 'conduct a warrantless search of a vehicle if they have probable cause to believe that it contains contraband.' " (United States v. Fowlkes (9th Cir. 2015) 804 F.3d 954, 971.) In the vehicle context, the search incident to arrest exception permits officers to search a vehicle incident to the arrest of its recent occupant when (1) "the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," or (2) "it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' " (Gant, supra, 556 U.S. at p. 343.)
At the time of defendant's offenses, binding California Supreme Court precedent held that the search incident to arrest exception authorized officers to conduct a warrantless search of the arrestee's cell phone's text message folder. (People v. Diaz (2011) 51 Cal.4th 84, 93.) The Diaz court found relevant that the cell phone was on the defendant's person at the time of his arrest. (Ibid.) In People v. Nottoli (2011) 199 Cal.App.4th 531, 558 (Nottoli), this court applied Diaz to hold that, during a vehicular search incident to arrest, officers could search a cell phone found in a passenger compartment. Subsequently, the United States Supreme Court held that officers must generally secure a warrant before searching the data contained on a cell phone, even when a cell phone is seized incident to arrest. (Riley v. California (2014) 573 U.S. ___ [134 S. Ct. 2473, 2493] (Riley).)
"The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens 'to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .' Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure." (United States v. Calandra (1974) 414 U.S. 338, 347.) The good faith exception to the exclusionary rule provides that the exclusionary rule does not apply where police officers reasonably and in good faith believe that their conduct is lawful, such as reliance on a warrant later found to be invalid. (United States v. Leon (1984) 468 U.S. 897, 922.) This exception applies, among other circumstances, when an officer conducts a search in reliance on then-binding appellate precedent. (Davis v. United States (2011) 564 U.S. 229, 249 [reasonable reliance on binding precedent is the "sort of blameless police conduct . . . [that] comes within the good-faith exception and is not properly subject to the exclusionary rule"].)
3. Analysis
The record does not disclose why counsel did not file a motion to suppress. There is no evidence that counsel was asked for and failed to provide an explanation. And we cannot say that there could be no satisfactory explanation for not moving to suppress. " 'Because the legality of the search[es were not] litigated, facts necessary to [resolve that question] are lacking.' " (Mendoza Tello, supra, 15 Cal.4th at p. 266.) For example, the record does not disclose when defendant was placed under arrest, a fact that may bear on the reasonableness of both the vehicle and cell phone searches. Other facts outside the record, which are unfavorable to the appellant and of which defense counsel was aware, may " 'have justified the [searches] and counsel's decision not to attack the[ir] validity . . . .' " (Id. at p. 267.) Our supreme court has cautioned against "declar[ing] that a police officer acted unlawfully, suppress[ing] relevant evidence, set[ting] aside a jury verdict, and brand[ing] a defense attorney incompetent unless [we] can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence." (Ibid.)
As noted, defendant also raises his ineffective assistance of counsel claim in his petition for writ of habeas corpus. For the reasons described above, that claim is better in that context. On direct appeal, we reject it.
B. Sufficiency of the Evidence
Next, defendant asserts two sufficiency of the evidence claims. In evaluating these challenges, "we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement [or offense] beyond a reasonable doubt." (People v. Delgado (2008) 43 Cal.4th 1059, 1067.)
1. Age Enhancement
First, defendant contends there was insufficient evidence to support the jury's finding that he knew or reasonably should have known that Sablan, the victim of the February 19 robbery, was 65 years of age or older. We disagree. House and Fontanares's testimony that defendant was the February 19 robber, Sablan's appearance before the jury, and her testimony that she was 78 years old is substantial evidence supporting the finding that defendant reasonably should have known that Sablan was 65 years of age or older. (People v. Smith (1993) 13 Cal.App.4th 1182, 1191; id. at p. 1190 [presuming, "in support of the judgment, that the jury could reasonably deduce from its view of [the victim's] physical appearance that defendant reasonably should have known that she was at least 65 years old"].)
Defendant contends House and Fontanares's eyewitness identifications of him as the February 19 robber were not credible, and thus are not substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) In support of that argument, defendant points to minor inconsistencies between Fontanares's testimony and the February 19 surveillance video—specifically, Fontanares recalled the robber stopping when he pointed the gun, while the video shows the robber fleeing while pointing the gun. Defendant also contends Fontanares was not credible because he identified defendant as one of the March 5 robbers, but defendant's clothing at the time of his arrest did not match the clothing worn by the March 5 robbers in the surveillance video. Finally, defendant tries to discredit Fontanares and House by pointing to research regarding eyewitness identifications and the fact that the February 19 robber's face was obscured by a hood.
Defendant also contends the surveillance video shows the February 19 robber was taller than Daniels, while other evidence showed he and Daniels are the same height. But the relative heights of the two individuals is not apparent from the surveillance video. --------
" 'To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.' " (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Defendant's complaints suggest only that reasonable jurors could have disbelieved House and Fontanares, not that their testimony was so inherently improbable as to be incredible. (People v. Headlee (1941) 18 Cal.2d 266, 267 ["[w]here . . . the evidence relied upon by the prosecution is so improbable as to be incredible, and amounts to no evidence, a question of law is presented which authorizes an appellate court to set aside a conviction"].) Because their testimony was not incredible, we are not free to reevaluate their credibility. (People v. Mejia (2012) 211 Cal.App.4th 586, 602.) The jury credited their identifications, which are substantial evidence supporting the age enhancement finding.
Defendant also notes that the People advanced two theories regarding his involvement on February 19: that he was the direct perpetrator or an aider and abettor. He argues that because the jury found "not true" allegations that he personally used a firearm during and personally inflicted great bodily injury on Sablan, it necessarily found him guilty as an aider and abettor. Put differently, defendant says the jury must have concluded he was not the direct perpetrator of the February 19 crimes, and if he was not the direct perpetrator he had no basis for knowing Sablan's age.
We disagree with defendant's interpretation of the verdicts. While jurors found not true the personal use allegations, they found that defendant was armed with a firearm during the commission of the February 19 crimes. Those findings are logically inconsistent. There was no basis for concluding that anyone but the direct perpetrator was armed, and the direct perpetrator hit Sablan with a firearm and pointed it at Fontanares, both of which constitute personal use. (CALCRIM No. 3146 ["Someone personally uses a firearm if he or she intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner; [¶] 2. Hits someone with the weapon . . ."].) "[T]he existence of inconsistent verdicts [does not] imply that the jury must have been confused. [Citation.] An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict." (People v. Lewis (2001) 25 Cal.4th 610, 656 (Lewis).) In any event, logically inconsistent verdicts or findings are not grounds for reversal where substantial evidence supported the verdict or finding. (People v. Miranda (2011) 192 Cal.App.4th 398, 407; Lewis, supra, at p. 656 [where sufficient evidence supports convictions and findings, inconsistency among verdicts does not warrant reversal].) As discussed above, substantial evidence supported finding that defendant knew or should have known that Sablan was 65 years of age or older.
2. Assault With a Semiautomatic Firearm Conviction
Second, defendant maintains there was insufficient evidence to support his conviction for assault with a semiautomatic firearm because (1) there was no evidence the gun was loaded and (2) there was no evidence he intended to do anything but frighten Fontanares.
"A long line of California decisions holds that an assault is not committed by a person's merely pointing an (unloaded) gun in a threatening manner at another person." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 (Rodriguez) [citing cases and assuming the continuing viability of that rule].) The basis for that rule is that "a present ability" to commit a violent injury on another person is an element of assault. (§ 240 ["An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another"].) In the context of assault with a firearm, California courts have held that where "an unloaded gun [is pointed] at another person with no effort or threat to use it as a bludgeon," there is no present ability to commit a violent injury on the person, and hence no assault. (People v. Orr (1974) 43 Cal.App.3d 666, 672.) Direct proof the gun was loaded is not required. "[A] defendant's statements and behavior while making an armed threat against a victim may warrant a jury's finding the weapon was loaded." (Rodriguez, supra, at p. 12.) Thus, in People v. Mearse (1949) 93 Cal.App.2d 834, 836-837, the court concluded that "evidence that [the] defendant told [the victim, whom he was chasing with a shotgun,] to halt or 'I'll shoot' indicate[d] that the gun was loaded when defendant made that command and threat." In Rodriguez, the court found significant evidence "that when defendant put the gun to [the victim's] chin, he warned [the victim] to keep his mouth shut or 'I could do to you what I did to them.' " (Rodriguez, supra, at p. 12.) The court reasoned "the jury could reasonably have interpreted the warning as an admission by defendant of his present ability to harm [the victim]." (Ibid.)
Here, defendant fled on foot after robbing Sablan of her purse. As he did so, a witness, Fontanares, yelled "hey" and moved in defendant's direction, in an apparent attempt to stop him. Defendant responded by pointing a gun in Fontanares's direction as he continued to flee. Jurors reasonably could have concluded that by pointing the gun at Fontanares, defendant conveyed the message: "stop or I'll shoot." That is, jurors reasonably could have construed defendant's actions as communicating a threat akin to those as issue in Mearse and Rodriguez, which were found to be sufficient to support a finding that the gun was loaded. Accordingly, we conclude there was sufficient evidence of present ability to injure.
Defendant also maintains his conviction for assault with a semiautomatic firearm must be reversed because there was no evidence he intended to do anything but frighten Fontanares, which is insufficient to support an assault conviction. (People v. Tran (1996) 47 Cal.App.4th 253, 261.) The requisite intent for an assault conviction is intent to commit a battery. (Ibid.) " '[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.' " (People v. Brown (2016) 245 Cal.App.4th 140, 151.) Substantial evidence supports the inference that defendant intentionally pointed a loaded gun at Fontanares to dissuade the man from preventing defendant's escape or otherwise intervening. The act of pointing a loaded gun in a threatening manner at another is one that, by its nature, will probably and directly result in injury. (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Therefore, there was sufficient evidence that defendant had the requisite intent to commit assault.
III. DISPOSITION
The judgment of conviction is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.