People v. Belardo
| Decision Date | 31 October 2013 |
| Docket Number | A133128 |
| Court | California Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. WILBERTO BELARDO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct.
Wilberto Belardo appeals from his conviction for the 1998 murder (Pen. Code, § 187) 1 of Jose Zarate and the special circumstance finding that Belardo committed the murder during the commission of a robbery (§ 192.2, subd. (a)(17)(A)). Belardo asserts the following errors: (1) the trial court failed to obtain a separate waiver of trial by jury on the special circumstance allegation; (2) the trial court should not have admitted the testimony of two witnesses, because that testimony was uncorroborated and the witnesses were liable for prosecution of the murder of Zarate; (3) insufficient evidence established his identity as the shooter in the Zarate homicide; (4) the People failed to inform the defense of material, exculpatory evidence in a timely manner, depriving him of a fair trial (a Brady violation); (5) the trial court erred in denying a mistrial because of the Brady violation; (6) because he was brought to trial in 2011 for a crime that occurred in 1998, he was prejudiced by the delay in prosecution; (7) because of the alleged Brady violation, his waiver of trial by jury on the issue of guilt was neither knowing nor intelligent; and(8) the trial court erred in denying him a new trial because of new evidence discovered after trial.
We conclude that the trial court erred in failing to obtain a separate waiver of trial by jury on the special circumstance allegation, but we also conclude that the error was harmless. Finding no merit in Belardo's other assertions of error, the judgment and orders of the trial court are affirmed.
This criminal case involves the February 15, 1998 murder of Zarate, during the commission of a robbery. Although the Zarate homicide occurred in 1998, charges were not brought against Belardo until 2010 because witnesses were not as forthcoming with investigators in 1998 as they would prove to be 10 years later. Alvaro Delatorre was present during the events and one of the perpetrators assaulted him, but he was unable to provide a certain identification of Belardo as the person who shot Zarate. Belardo's half brother, David Bango, and his girlfriend at the time of the murder, Melony Ellis, testified about admissions that Belardo made to them after the murder. Their testimony was the primary evidence for the prosecution.
The People filed an information on May 10, 2010,2 charging Belardo with the murder of Zarate (§ 187), with personal discharge of a firearm causing death (§ 12022.53, subd. (d)), personal discharge of a firearm (§ 12022.53, subd. (c)), and personal use of a firearm (§ 12022.53, subd. (b)). The information also alleged the special circumstance that Belardo committed the murder while engaged in the commission of a robbery.3 (§ 190.2, subd. (a)(17)(A).) Belardo pleaded not guilty and denied the sentencing enhancements.
After the court and parties had settled several in limine motions, Belardo's counsel announced a willingness to waive trial by jury. The district attorney checked with her office, a brief voir dire followed, and trial by jury was deemed waived.
The trial commenced on April 27, 2011. The prosecution presented 21 witnesses, including Delatorre, Bango and Ellis. During the trial, additional information regarding the Zarate murder investigation was identified and turned over to the defense, leading to several mistrial and dismissal motions.
On May 12, 2011, the court found Belardo guilty of first degree murder (§ 187, subd. (a)) during a robbery (§ 190.2, subd. (a)(17)(A)). The court also found true the section 12022.53, subdivisions (b), (c), and (d) enhancements.
On August 18, 2011, the court heard and denied Belardo's motion for a new trial, based upon alleged Brady violations, newly discovered evidence, and insufficient evidence. The court sentenced Belardo to life in prison without parole for the murder during a robbery (§ 187, subd. (a); § 190.2, subd. (a)(17)(A)), plus 25 years to life in prison for personal discharge of a firearm causing death (§ 12022.53, subd. (d)).
Belardo filed a timely notice of appeal on August 24, 2011.
In February 1998, Zarate lived alone in a small trailer, from which he sold drugs, at the corner of Jackson and Cherry Streets in Dixon, California. Across the street from Zarate's trailer, about 20 to 25 feet away, Charlie Moore lived in a four-unit building. Belardo lived in Dixon with his mother, Norma Rivera; his stepfather; his girlfriend, Ellis; and his 15-year-old half brother, Bango.
On February 15, 1998, Alvaro Delatore was visiting Zarate, his friend, while Moore hosted a barbecue party across the street. About 9:00 p.m., there was a knock atthe door of Zarate's trailer.5 The visitor gave a name that Delatorre did not remember and Zarate said it was okay to open the door. Delatorre saw a man pointing a revolver at them, accompanied by another man wearing what might have been a nylon stocking over his face. The man with the gun said, The man then hit Delatorre on the top of his head with the gun, cutting his scalp and leaving him dizzy and dazed. One of the men reached around Delatorre's neck and grabbed jewelry. Delatorre took out his wallet and the gunman took it from his hand.
The gunman repeated his demand for money, dope, and jewelry and Zarate said, "I ain't giving nothing up." Delatorre heard multiple gunshots and saw that Zarate had been hit. After telling Delatorre to keep quiet, the two men left. According to Delatorre, Zarate had methamphetamine and $1,500 on his person before the robbery. When Zarate's body was later examined, the drugs and cash were gone.
Delatorre ran to Moore's house, where the party was still in progress, and reported the incident to the 911 operator. He went back to the trailer and the police arrived a short time later. Zarate was still alive when police arrived, but was unable to communicate. His shirt had been removed and he was bleeding heavily from a bullet wound in the center of the chest. Paramedics removed Zarate from the trailer, but he died at the scene.
When police interviewed him, Delatorre described the gunman as a "Black male around five foot six" with "a muscular build," "round face," and "puffy cheeks and short hair." Delatorre thought the second man was also African-American, based on seeing his hands and arms. During a pretrial conditional examination, held in anticipation of Delatorre's imminent deportation, he described the gunman as clean shaven, with no acne on his face, no visible tattoos,6 and wearing a tank top. He told the police that the revolver was chrome colored.
Search of the trailer revealed a bloody shirt with a bullet hole on the bed with a spent bullet underneath it. A ballistics expert testified that the bullet was .38 caliber, typically fired from a .38 special ammunition revolver. No spent casings were found.
Zarate had a bullet entry wound in the chest and an exit wound in his back. He also had separate entry and exit wounds in his left arm.
At trial, Delatorre testified that the gunman looked like one of two persons he had seen watching him and Zarate from Moore's party that night. He said that he had seen the gunman "driving around" in a black convertible Mustang about a week before the shooting. The People also presented testimony from a number of witnesses indicating that Belardo's stepbrother, Greg Felix,7 drove a Mustang convertible and that Belardo rode in the car with Felix.8
When Delatorre testified at the conditional hearing, he identified Belardo as the gunman, but he was "not a hundred percent sure." Belardo was wearing "jail clothes" and was in shackles at that hearing. At trial, Delatorre again identified Belardo as one of the two men who entered Zarate's trailer. He was about 50 percent sure.
However, on the night of the homicide, Delatorre assisted in the preparation of a computer-generated composite of the suspect.9 As the investigation progressed, he viewed several photographic lineups that included Belardo, but he told the police that he did not recognize anyone as the assailant. On February 23, Delatorre viewed a live lineup including Belardo, but did not identify him. The investigators told Delatorre that the shooter was in the live lineup, and when he said he did not recognize anyone, they told him, Delatorre felt he was being pushed intopicking somebody. He then selected someone other than Belardo from the live lineup and told the investigators he was 90 percent sure.
Belardo was on parole from the California Youth Authority on February 15, 1998, and was subject to electronic monitoring, with a curfew of 10:00 p.m. He subsequently admitted a parole violation because electronic monitoring showed that he was not in his residence until 10:08 p.m. on February 15, 1998. He told police that he was at Moore's house between 7:00 and 9:00 p.m. and then walked home, a distance of about half a mile.10 He said that when he got home he played with the dog in the back yard and denied possessing a gun.
The police searched Belardo's residence on February 17, 1998 and found no evidence connecting him to the robbery and homicide.
Belardo, Bango, Felix, and Belardo's long-time friend, Dustin...
To continue reading
Request your trial