People v. Delgado

• Decision Date: 10 February 2022
• Docket Number: B299482
• Parties: The PEOPLE, Plaintiff and Respondent, v. Froylan DELGADO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

74 Cal.App.5th 1067

290 Cal.Rptr.3d 189

The PEOPLE, Plaintiff and Respondent,

v.Froylan DELGADO, Defendant and Appellant.

B299482

Court of Appeal, Second District, Division 7, California.

Filed February 10, 2022

Julie Caleca, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Julie A. Harris, Shezad H. Thakor, and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

FEUER, J.

Froylan Delgado appeals from a judgment entered after the jury convicted him of shooting at an occupied vehicle, assault with an assault weapon, and possession of a firearm by a felon. The jury also found true the gang and firearm enhancements. On appeal, Delgado contends his due process rights were violated because the trial court instructed the jury with CALCRIM No. 315 that an eyewitness's degree of certainty can be considered when evaluating the reliability of the witness's identification.¹

We affirmed the judgment in People v. Delgado, 2021 WL 388174 (Feb. 3, 2021, B299482) [nonpub. opn.], holding that instruction on an eyewitness's degree of certainty was not error under People v. Sánchez (2016) 63 Cal.4th 411, 462, 204 Cal.Rptr.3d 682, 375 P.3d 812 ( Sánchez ). The Supreme Court granted review and on August 25, 2021 transferred the matter back to this court with directions to vacate our prior opinion and reconsider the appeal in light of People v. Lemcke (2021) 11 Cal.5th 644, 666, 278 Cal.Rptr.3d 849, 486 P.3d 1077 ( Lemcke ), in which the Supreme Court found that CALCRIM No. 315 has the potential to mislead jurors by reinforcing a "common misconception ... that an eyewitness identification is more likely to be reliable where the witness has expressed certainty." However, considering the jury instructions as a whole and the trial record, we conclude the inclusion of the witness-certainty factor did not violate Delgado's due process rights.

Following the Supreme Court's transfer to this court, the Legislature enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (2021 Stats., ch. 699) (Assembly Bill 333), effective January 1, 2022, which made several modifications to the criminal street gang enhancement statute ( § 186.22 ), including modification of the definition of a "criminal street gang" in section 186.22, subdivision (f), to require proof that members of a gang "collectively engage in, or have engaged in, a pattern of criminal gang activity." We agree with Delgado that the requirement in amended section 186.22, subdivision (f), that gang members "collectively engage" in a pattern of criminal gang activity means the People were required to prove that two or more gang members committed each predicate offense, and here, there was insufficient evidence that multiple Avenues gang members committed the predicate offenses. We reject the People's contention that proof that individual gang members committed the predicate offenses on separate occasions is sufficient to show the gang members "collectively" engaged in a pattern of criminal activity.

Delgado's convictions of shooting at an occupied motor vehicle, possession of a semiautomatic firearm by a felon, and assault with an assault weapon, and the jury's true findings on the firearm enhancements are affirmed. We reverse the jury's true findings that Delgado committed the underlying offenses for the benefit of a criminal street gang, and we remand to give the People an opportunity to retry the gang enhancement and to meet their burden of proof under Assembly Bill 333's new requirements. If the People elect not to try the gang enhancement, Delgado is to be resentenced.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

1. The shooting

At approximately 1:20 a.m. on August 25, 2018 six Los Angeles Police Department (LAPD) officers responded to a 911 call of shots fired in the area of Drew and Weldon Streets in northeast Los Angeles, near 3405 Drew Street. The location was at the heart of the territory claimed by the Avenues street gang and the stronghold of the Drew Street clique within the Avenues gang.

Upon arriving at the scene, the police officers detained several known Avenues gang members. Gabriela Alonso, who was an associate of the gang, was detained with her boyfriend Juan Briseno, an Avenues gang member, as the two walked away from the area near 3411 Drew Street. Police officers also detained Avenues gang member Gonzalo Urieta, who was running down Drew Street away from the scene, and Avenues gang member Adrian DeJesus, who was holding his waistband while walking away from 3411 Drew Street.

During a canvass of the area, Officer Tom Quino found three spent .223 caliber shell casings in the walkway and street in front of 3405 Drew Street. Officer Michael Marino discovered a loaded semiautomatic firearm wrapped in a towel hidden behind the fence at 3411 Drew Street. Daniel Rubin, a criminalist with the LAPD firearm analysis unit, testified the firearm had the characteristics of an assault weapon as defined under California law because it was capable of accepting a detachable magazine inserted into the firearm in a location other than the pistol grip, and its barrel was covered.

Through laboratory testing, Rubin confirmed the recovered shell casings had been fired from the firearm. No fingerprints were recovered from the firearm.

On the morning of the shooting, Officer Marino and Sergeant Nick Giordano were able to obtain and view surveillance video from 3407 Drew Street. The video showed that on August 25, 2018 at 1:16 a.m. a man in a white sleeveless shirt emerged onto the sidewalk in front of 3405 Drew Street as a car was driving down the street. A flash emanated from the man's position as the car passed him. The man then moved into the street behind the car, and another flash appeared where the man was standing. The 3407 Drew Street video was played for the jury.²

The 3407 Drew Street video also showed a woman and a man (later identified as Alonso and Briseno) stashing a towel-wrapped object inside the fence at the location where Officer Marino had recovered the assault weapon. Based on the video, Alonso and Briseno were arrested. Briseno tested positive for gunshot residue; Alonso's gunshot residue test was negative.³ The police were not able to identify the vehicle involved in the shooting, and they could not determine how many occupants were inside.

2. The 3405 Drew Street surveillance video and identification of Delgado

As part of the police investigation into the shooting, Sergeant Giordano contacted Justin Jacobo, who was believed to have access to the video surveillance system for the building at 3405 Drew Street. Three days after the shooting, Sergeant Giordano received an email from Jacobo containing a hyperlink to a Web site containing the 3405 Drew Street video footage. Sergeant Giordano watched the video that day and saw that it captured the shooting, but he did not recognize the shooter. He forwarded the video link to LAPD Officers Marino, Jeremy Massey, and Daniel Kaminski, and to Detective Justin Fuller.

Officer Massey viewed the video on August 28 and recognized Delgado as the shooter. Officer Massey, who was then assigned to the LAPD's gang enforcement detail for the northeast division, had interacted with Delgado on five to 10 earlier occasions, had filled out a field information card on him, and had discussed Delgado's street name and gang affiliation with him. Asked by the prosecution, "How would you describe the quality of that video, specifically in terms of being able to recognize anybody depicted in the video," Officer Massey testified, "I would say it's a very good quality camera and easy to identify people if you knew who they were." Officer Massey was not asked how certain he was of his identification of Delgado. Officer Massey took a photograph of a frame of the video on his computer that depicted a bald person with Delgado's general characteristics, dressed in a white sleeveless shirt, walking with the firearm to his left side. The photograph was admitted into evidence, and Officer Massey identified Delgado in the courtroom as the man in the photograph. Officer Massey testified the quality of the video was superior to that of the photograph. However, the video was not available at trial.

Officer Massey testified the video showed Delgado⁴ in a white sleeveless shirt standing in the front courtyard of 3405 Drew Street with several other people. After looking up Drew Street, Delgado walked into apartment 2 of the building,⁵ then emerged from the building carrying an object that appeared to be a firearm. Delgado walked out to the sidewalk as a vehicle traveling south on Drew Street came to a stop near Delgado's position. Delgado pointed the firearm at the vehicle and fired one shot as the vehicle resumed traveling southbound. Delgado walked into the street and fired another shot at the vehicle after it passed. Delgado then walked back into apartment 2. Officer Massey also testified the video showed Alonso emerging from the same area around apartment 2 one minute later carrying what looked like a sheet wrapped around an object. Alonso walked onto the sidewalk and headed north in the direction of 3407 Drew Street.

Officer Kaminski independently identified Delgado as the shooter after viewing the 3405 Drew Street video. While assigned to the northeast division gang detail, Officer Kaminski encountered Delgado 30 to 50 times over an eight-year period through "various stops, detentions, consensual encounters, and through seeing him on patrol." During patrols, he had seen Delgado "almost daily" in the courtyard in front of 3405 Drew Street, and they had multiple face-to-face encounters and conversations. Officer Kaminski testified he was "absolutely" and "100 percent" certain Delgado was the man he saw in the video. Officer Kaminski testified the photograph admitted at trial was...