Filed 1/21/14 P. v. Delgado CA2/5
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE


THE PEOPLE,                                                                   B244906

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. KA088341)
          v.

ADAM DELGADO,

          Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Perry, Judge. Affirmed.
          Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
                                    I. INTRODUCTION


       A jury convicted defendant, Adam Delgado, of first degree murder. (Pen. Code,
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§187, subd. (a)). The jury further found true criminal street gang, knife use and handgun

use enhancements. (§§ 186.22, subd. (b)(1)(C), 12022, subd. (b)(1), 12022.53, subds. (d),
(e)(1).) The trial court sentenced defendant to an indeterminate term of 50 years to life in
state prison plus a determinate term of one year. We affirm the judgment.


                                    II. THE EVIDENCE


       Eyewitnesses identified defendant as one of several gang members who assaulted
and, ultimately, killed a young African-American man, Marquis Le Blanc. The assault
and murder occurred after Mr. Le Blanc brandished a firearm in the presence of gang
members. One of the eyewitnesses, Arturo Casas, saw defendant stab Mr. Le Blanc in
the chest several times with a knife. The gang members were known for their hatred of
African-Americans. The assault was accompanied by shouts of “Get that nigger,” and
words to that effect, together with gang references. Mr. Le Blanc died of a stab wound to
the heart followed by a gunshot wound to the head.
       Defendant testified in his own defense. He admitted he was a member of a gang
that hated African-Americans. Defendant testified that despite the gang’s animosity, he
did not hate African-Americans. Defendant admitted being present when Mr. Le Blanc
was assaulted and killed. He denied possessing a knife and participating in the
aggravated assault. Defendant denied stabbing Mr. Le Blanc.




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           Further statutory references are to the Penal Code unless otherwise noted.

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                                    III. DISCUSSION


                                  A. Instructional Error
       Defendant argues the jurors should have been instructed that in evaluating
credibility they could consider whether a witness was promised immunity or leniency in
exchange for testimony. Defendant asserts the trial court had a sua sponte duty to so
instruct pursuant to CALCRIM No. 226.2 Defendant notes Mr. Casas, a key witness, had


       2
          CALCRIM No. 226 states: “You alone must judge the credibility or
believability of the witnesses. In deciding whether testimony is true and accurate, use
your common sense and experience. You must judge the testimony of each witness by the
same standards, setting aside any bias or prejudice you may have. [¶] You may believe
all, part, or none of any witness’s testimony. Consider the testimony of each witness and
decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may
consider anything that reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider are: [¶] How well could the witness
see, hear, or otherwise perceive the things about which the witness testified? [¶] How
well was the witness able to remember and describe what happened? [¶] What was the
witness’s behavior while testifying? [¶] Did the witness understand the questions and
answer them directly? [¶] Was the witness’s testimony influenced by a factor such as
bias or prejudice, a personal relationship with someone involved in the case, or a personal
interest in how the case is decided? [¶] What was the witness’s attitude about the case or
about testifying? [¶] Did the witness make a statement in the past that is consistent or
inconsistent with his or her testimony? [¶] How reasonable is the testimony when you
consider all the other evidence in the case? [¶] [Did other evidence prove or disprove
any fact about which the witness testified?] [¶] [Did the witness admit to being
untruthful?] [¶] [What is the witness’s character for truthfulness?] [¶] [Has the witness
been convicted of a felony?] [¶] [Has the witness engaged in [other] conduct that
reflects on his or her believability?] [¶] [Was the witness promised immunity or leniency
in exchange for his or her testimony?] [¶] Do not automatically reject testimony just
because of inconsistencies or conflicts. Consider whether the differences are important or
not. People sometimes honestly forget things or make mistakes about what they
remember. Also, two people may witness the same event yet see or hear it differently. [¶]
[If the evidence establishes that a witness’s character for truthfulness has not been
discussed among the people who know him or her, you may conclude from the lack of
discussion that the witness’s character for truthfulness is good.] [¶] [If you do not
believe a witness’s testimony that he or she no longer remembers something, that
testimony is inconsistent with the witness’s earlier statement on that subject.] [¶] [If you
decide that a witness deliberately lied about something significant in this case, you should
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an agreement with the prosecution concerning his testimony. Mr. Casas was charged
with robbery for stealing Mr. Le Blanc’s sneakers. Mr. Casas was the sole witness to
testify defendant stabbed Mr. Le Blanc. Defendant was represented at trial by Anthony
Robusto. Defendant asserts Mr. Robusto was ineffective for failing to request instruction
on leniency as it affects credibility.
       Any error was harmless under any standard. (Chapman v. California (1967) 386
U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.) And because there was no
prejudice, defendant cannot establish Mr. Robusto was ineffective. (Strickland v.
Washington (1984) 466 U.S. 668, 697; In re Crew (2011) 52 Cal.4th 126, 150; People v.
Fairbank (1997) 16 Cal.4th 1223, 1241.) First, Mr. Casas told law enforcement officers
defendant was the person who stabbed Mr. LeBlanc. Mr. Casas made this disclosure
before he was charged with robbery and subsequently offered a leniency agreement.
Second, the leniency agreement between Mr. Casas and the prosecution was entered into
evidence. Mr. Casas agreed that in return for his truthful testimony: he would not
receive probation; he would be sentenced to state prison for robbery; the term of
imprisonment would be between two and five years; and the exact sentence would be
determined by a neutral magistrate.
       Third the prosecutor, Deputy District Attorney John McKinney, addressed the
leniency agreement at length in closing argument to the jury. Mr. McKinney explained in
part: “Now, for purposes of assessing [Mr. Casas’s] credibility, you can view [the
leniency agreement] in the light most favorable to the defendant, which is to assume a
judge will probably give [Mr. Casas] the low term at least he thinks and hopes that a
judge will give him the low term. And I can tell you that his participation and the fact
that he’s snitching and what that means is so significant that it would probably be
difficult for any fair minded person to want to give him the high term as opposed to the


consider not believing anything that witness says. Or, if you think the witness lied about
some things, but told the truth about others, you may simply accept the part that you think
is true and ignore the rest.]” (Italics added.) The present jury was so instructed with the
exception of the italicized language.
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low term, but in assessing his credibility you’re assessing his state of mind and what’s
motivating him to come in here and tell the truth, or he is telling the truth. [¶] You can
assume that he’s trying to get the lowest possible prison that he can, but the agreement he
made doesn’t change his position much at all from if he had just walked into court on the
first day he was charged with robbery and said, I want to plead guilty, judge. I’ll make
my argument for why I deserve the lower term as opposed to the higher term, get
sentenced, get either probation or prison and go in there without a snitch jacket. [¶]
Going to prison as a snitch is a big deal based on what you’ve heard in this case,
particularly someone who snitches against [defendant’s gang]. And Mr. Casas was so
concerned about it, you heard his testimony that he was asking me questions about being
beaten up in prison or even being raped in prison as retaliation for snitching. You heard
the consequences for snitching, anything from a beating, up to and including death. It
would have been far easier for Mr. Casas to say, I’ll take my chances with a judge. I am
not going to snitch. Who knows, he could have got probation. He could have got two
years anyway. [¶] Sometimes with these agreements the prosecution gives a witness so
much that a juror thinks, how can I trust him? Anybody would say anything to get the
reduction that the prosecution is putting . . . on the table in front of this witness. That
didn’t happen here. The agreement is not much of an inducement at all. I submit to you
that Casas is motivated by what made him cry when he saw [the picture of the victim].”
       Fourth, defense counsel, Mr. Robusto, also addressed Mr. Casas’s credibility in
closing argument to the jury. Mr. Robusto argued in part: “You have Mr. Casas who is
obviously . . . induced to testify. He’s induced to testify based upon the leniency
agreement, based upon . . . Mr. McKinney interviewing him hoping that . . . he would say
things that would assist Mr. McKinney.”
       Fifth, in rebuttal argument, Mr. McKinney noted: “[A]s you know from the
agreement, my explanation of the agreement and the documents, which you’ll have an
opportunity to read, [Mr. Casas] really gets no benefit out of testifying in court. A minor
benefit he gets. But when he talked to the police and said [defendant] was the one with
the knife getting [Mr. Le Blanc], there was no benefit. There was no discussion . . . there

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was no inducement for him to say that.” Sixth, the jury was instructed to use common
sense and experience in considering each witness’s credibility. This included whether
any witness’s testimony was influenced by any factor such as bias or personal interest in
the outcome of the case. Given the foregoing there is no question the jury understood it
could consider the more lenient duration of the state prison terms promised to Mr. Casas
in evaluating his believability. Any instruction omission concerning leniency was
harmless beyond a reasonable doubt.


                            B. Ineffective Assistance of Counsel


       Defendant also contends Mr. Robusto was ineffective for failing to request
instruction pursuant to CALCRIM No. 522. CALCRIM No. 522 embodies the rule that
provocation inadequate to reduce murder to manslaughter may nevertheless raise a
reasonable doubt whether the defendant willfully killed with deliberation and
premeditation. (People v. Avila (2009) 46 Cal.4th 680, 707; People v. Carasi (2008) 44
Cal.4th 1263, 1306.) The trial court had no duty to instruct with CALCRIM No. 522
absent a request. (People v. Rogers (2006) 39 Cal.4th 826, 877-879; People v. Mayfield
(1997) 14 Cal.4th 668, 778.)
       Our Supreme Court discussed the requirements of an ineffective assistance of
counsel claim in People v. Fairbank, supra, 16 Cal.4th at page 1241: “[W]hen
considering a claim of ineffective assistance of counsel, ‘a court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.’ (Strickland v. Washington[, supra,] 466
U.S. [at p.] 697.) A defendant must prove prejudice that is a ‘“demonstrable reality,” not
simply speculation.’ (People v. Williams (1988) 44 Cal.3d 883, 937, quoting People v.
Stephenson (1974) 10 Cal.3d 652, 661.) Prejudice requires ‘a reasonable probability that
a more favorable outcome would have resulted . . . , i.e., a probability sufficient to

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undermine confidence in the outcome.’ (In re Clark (1993) 5 Cal.4th 750, 766, citing
Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)” (Accord, In re Crew, supra,
52 Cal.4th at p. 150.)
       As noted above, CALCRIM No. 522 embodies the rule that provocation
inadequate to reduce murder to manslaughter may nevertheless raise a reasonable doubt
whether the defendant willfully killed with deliberation and premeditation.3 (People v.
Avila, supra, 46 Cal.4th at p. 707; People v. Carasi, supra, 44 Cal.4th at p. 1306.)
Division One of the Court of Appeal for the Fourth Appellate District explained in
People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332: “First degree murder is an
unlawful killing with malice aforethought, premeditation, and deliberation. (People v.
Chun (2009) 45 Cal.4th 1172, 1181.) . . . Second degree murder is an unlawful killing
with malice, but without the elements of premeditation and deliberation which elevate the
killing to first degree murder. (Ibid.) To reduce a murder to second degree murder,
premeditation and deliberation may be negated by heat of passion arising from
provocation. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.) If the
provocation would not cause an average person to experience deadly passion but it
precludes the defendant from subjectively deliberating or premeditating, the crime is
second degree murder. (Ibid.).” (Accord, People v. Padilla (2002) 103 Cal.App.4th 675,
678.) The existence, extent and effect of provocation on the defendant’s mind in relation
to premeditation and deliberation are factual questions for the jury to resolve. (People v.
Wolfe (1954) 42 Cal.2d 663, 673; People v. Thomas (1945) 25 Cal.2d 880, 903-904.)
       We find no prejudice to defendant. The jury was instructed on the difference
between first and second degree murder: “A defendant is guilty of first degree murder as


       3
         CALCRIM No. 522 states: “Provocation may reduce a murder from first degree
to second degree [and may reduce a murder to manslaughter]. The weight and
significance of the provocation, if any, are for you to decide. [¶] If you conclude that the
defendant committed murder but was provoked, consider the provocation in deciding
whether the crime was first or second degree murder. [Also, consider the provocation in
deciding whether the defendant committed murder or manslaughter.]” (See also,
CALJIC No. 8.73.)
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a perpetrator or based on a theory of aiding and abetting if the People have proved that
the perpetrator (i.e., the killer) acted willfully, deliberately, and with premeditation. The
perpetrator acted willfully if he intended to kill. The perpetrator acted deliberately if he
carefully weighed the considerations for and against his choice and, knowing the
consequences, decided to kill. The perpetrator acted with premeditation if he decided to
kill before completing the acts that caused death. [¶] The length of time the person
spends considering whether to kill does not alone determine whether the killing is
deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A
decision to kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be
reached quickly. The test is the extent of the reflection, not the length of time. [¶] . . .
[¶] The People have the burden of proving beyond a reasonable doubt that the killing
was first degree murder rather than a lesser crime. If the People have not met this
burden, you must find the defendant not guilty of first degree murder.” (Italics added.)
During deliberations, the jury inquired, “Distinction of 1st degree vs. 2nd degree
murder.” In response, the trial court reread the foregoing instructions.
       In his argument to the jury, Mr. Robusto discussed defendant’s testimony and
credibility. Mr. Robusto noted defendant admitted being a gang member. Defendant
admitted being present at the time Mr. Le Blanc was killed. He denied that he was armed
with a knife. Defendant denied stabbing Mr. LeBlanc. Mr. Robusto never argued
defendant committed the stabbing in heat of passion after Mr. Le Blanc brandished a
handgun.
       Given the evidence, instructions, and argument it is not reasonably probable the
verdict would have been more favorable to defendant had Mr. Robusto requested the
instruction with CALJIC No. 522. The instructions on deliberation and premeditation
required the jury to consider defendant’s mental state. In finding defendant guilty of first
degree murder, the jury necessarily found defendant’s decision to kill was not rash or
impulsive but carefully considered. Consistent with the evidence, the jury found

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defendant personally used a knife to murder Mr. Le Blanc. If the jurors believed
defendant was so provoked he could not deliberate or premeditate, they would not have
found him guilty of first degree murder. It is not reasonably probable a provocation
instruction would have swayed the jury to find defendant not guilty of first degree
murder. (See People v. Avila, supra, 46 Cal.4th at pp. 707-708; People v. Fitzpatrick,
supra, 2 Cal.App.4th at pp. 1293-1296.)


               C. The Restitution and Parole Revocation Restitution Fines


       Defendant claims the trial court erred in ordering him to pay a $240 restitution fine
(§ 1202.4, subd. (b)) and a $240 parole revocation restitution fine (§1202.45). Defendant
reasons: “At the time of [defendant’s] sentencing proceeding, the minimum restitution
and parole revocation [restitution] fine was $240. The trial court’s imposition of this
minimum fine reflects [its] intent to impose the statutory minimum fine. However, since
the criminal conduct on which [defendant] was sentenced occurred in 2009, he was
subject to the benefit of the law in effect at the time of the offense, i.e., a minimum
restitution fine in the amount of $200. Accordingly, the restitution fine and parole
revocation [restitution] fine must be reduced to $200.00.”
       Defendant did not object to the restitution fines in the trial court. However,
defendant argues restitution in the amount imposed was not legally authorized.
Therefore, the argument was not forfeited by the failure to object to the restitution fines
in the trial court. (People v. Kunitz (2004) 122 Cal.App.4th 652, 657; People v.
Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534.) Defendant is correct that the law in
effect when he committed the present offense must be applied to him. (People v. Souza
(2012) 54 Cal.4th 90, 143; People v. Hanson (2000) 23 Cal.4th 355, 361-363.) When
defendant committed the present murder, on April 17, 2009, former section 1202.4,
subdivision (b)(1), authorized a restitution fine of not less than $200 or more than
$10,000. (Stats. 2008, ch. 468, §1.) Section 1202.4, subdivision (b)(1) was amended
effective January 1, 2012, to provide for a restitution fine of not less than $240 or more

                                              9
than $10,000. (Stats. 2011, ch. 358, § 1.) That amendment, which postdates defendant’s
crime, is inapplicable to this defendant. (People v. Souza, supra, 54 Cal.4th at p. 143;
People v. Hanson, supra, 23 Cal.4th at pp. 361-367.) Here, the trial court had the
discretion to set the amount at any level between and including $200 and $10,000.
(Former §1202.4, subd. (b)(1) as amended by Stats. 2008, ch. 468, §1; People v. Kramis
(2012) 209 Cal.App.4th 346, 350; People v. Dickerson (2004) 122 Cal.App.4th 1374,
1379.) The $240 restitution fine imposed in this case was within that range. We presume
the trial court applied the law in effect at the time defendant committed the present
offense and chose, in its discretion, to impose a $240 fine. (Evid. Code, § 664; In re
Jacob J. (2005) 130 Cal.App.4th 429, 437-438, disapproved on another point in In re
Julian R. (2009) 47 Cal.4th 487, 499; People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
Under section 1202.45, the parole revocation restitution fine is in the same amount as the
section 1202.4, subdivision (b) restitution fine. (People v. Soria (2010) 48 Cal.4th 58,
62; People v. Smith (2001) 24 Cal.4th 849, 851.) There was no error.


                                    IV. DISPOSITION


       The judgment is affirmed.
                            NOT TO BE PUBLISHED IN THE OFFFICAL REPORTS




                            TURNER, P.J.


       We concur:




       MOSK                                      KRIEGLER, J.




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