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People v. Ugalino

June 9, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEL JAY UGALINO, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Alan G. Perkins, Judge. Reversed in part and affirmed in part. (Super. Ct. Nos. 05f07620, 06f02820).

The opinion of the court was delivered by: Davis, J.*fn5

CERTIFIED FOR PARTIAL PUBLICATION*fn1

A jury found defendant Del Jay Ugalino guilty of the following crimes: (1) first degree residential burglary (Pen. Code, § 459); (2) attempted robbery of Joshua Johnson (Pen. Code, §§ 664/211); (3) attempted robbery of Jessie Rider (Pen. Code, §§ 664/211); (4) possession of a controlled substance for sale (Health & Saf. Code, § 11378); (5) possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)); (6) robbery of Bendon Lee (Pen. Code, § 211); (7) battery of Charles Maroosis (Pen. Code, § 242); and (8) making a criminal threat to Mickey Lathum (Pen. Code, § 422). The jury also found true the allegation that defendant personally used a handgun during the commission of the crimes set forth in (1) to (3), above. Defendant was sentenced to an aggregate term of 14 years six months in state prison. He appeals his conviction, claiming prosecutorial misconduct, ineffectiveness of counsel, and insufficiency of the evidence. We will reverse defendant's conviction for attempted robbery of Jessie Rider and otherwise affirm the conviction.

I. Facts Relating to August 28, 2005, Incident

In August 2005, Joshua Johnson was living in a two-bedroom apartment with his girlfriend, Denise Galindo, their infant daughter, and two roommates: Jessie Rider and Devon McDermott. For income, Johnson sold marijuana from the apartment.

On August 28, 2005, defendant called Johnson on Johnson's cell phone, telling Johnson he wanted to buy three ounces of marijuana. Having sold to defendant 10-15 times before, Johnson told him to come over. So, driving a pickup truck, Aorn Saechow drove defendant and a third man to Johnson's apartment, where Johnson met them at the curb. Defendant and the third man then followed Johnson to his apartment.

When the three men got to Johnson's apartment, Rider was in the front room looking through CD's, Galindo was on the front porch, and McDermott was sleeping in one of the bedrooms. Once inside the apartment, defendant began counting out his money and Johnson went to his bedroom to get the marijuana out of a locked safe.

Johnson went into the kitchen area with the marijuana and defendant asked to use the restroom. Defendant walked down the hall toward the restroom and then turned around, aimed a gun at Johnson, and said, "you're getting jacked." The man who came with defendant had his own gun and he pointed it at Rider, telling Rider to lie face down on the ground.

Johnson initially "froze" but quickly grabbed the marijuana and stuffed it in his underwear, covering it with his shirt. Defendant then turned to his cohort and said, "give me your nine," and started walking toward Johnson. While defendant was looking the other way, Johnson ran out of the apartment, down the stairs, out to the parking lot, and past the truck in which defendant had arrived.

Approximately 30 seconds later, defendant and his cohort ran out of the apartment, down the stairs, and out to the parking lot, where they jumped into the waiting truck. As the truck pulled away, it hit a pole; the bumper fell off and was left behind, with the license plate attached. The police were called and shortly thereafter, Galindo and Johnson identified defendant as the man who had attempted to rob them.*fn2

Defendant was arrested and a search of defendant's person revealed a .380-caliber round and a nine-millimeter caliber round of ammunition in defendant's left pocket. Both cartridges bore magazine marks indicating they had been loaded into a handgun. The search also revealed 20 Ecstasy pills and a cell phone in defendant's right pocket.

Defendant admitted stealing from Johnson, but told the police they "couldn't arrest him for ripping off a drug dealer." He also claimed the Ecstasy was for personal use and not for sale. Defendant was subsequently charged with one count of first degree residential burglary (Pen. Code, § 459--count one), two counts of attempted robbery (Johnson and Rider, respectively; Pen. Code, §§ 664/211--counts two-three), possession of a controlled substance (Health & Saf. Code, § 11378--count five), and being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)--count six). It was further alleged that defendant used a handgun in the commission of counts one through three.

A jury found defendant guilty on counts one through three, five, and six. The jury also found true the allegation that defendant had used a handgun during the commission of counts one through three. Defendant appeals, arguing prosecutorial misconduct, ineffective assistance of counsel, and insufficiency of the evidence. We find only one of defendant's claims has merit.

Discussion Relating to August 28, 2005, Incident

A. Prosecutorial Misconduct

In his closing argument to the jury, the prosecutor argued that Johnson's testimony proved that defendant intended to shoot Johnson to steal his marijuana. He further argued that the expert's testimony corroborated Johnson's account of events: "Doesn't that support exactly what Joshua Johnson said happened, that this defendant had a gun pointed at Joshua Johnson's face, and he attempted to shoot Joshua Johnson. But for whatever reason[,] a miracle happened to Joshua Johnson that day. Because the gun did not fire. So the defendant turned to his friend and said let me borrow your [nine-millimeter gun] so I can blow his brains out because he is not giving me the marijuana fast enough. And what [the expert] found supports exactly what Joshua Johnson testified to. So is that another coincidence?"

Defendant contends the argument resulted in prosecutorial misconduct because it was based on facts not in evidence. Specifically, he argues there was no evidence defendant said, "let me borrow your [nine-millimeter gun] so I can blow his brains out . . ."; it was "conjecture" to argue defendant attempted to shoot Johnson; and it was conjecture to say that "a miracle happened to [] Johnson that day."

Defendant's failure to raise an objection and seek a curative admission forfeits any claim of error.*fn3 (People v. Crew (2003) 31 Cal.4th 822, 839.)

B. Ineffective Assistance of Counsel

1. Defendant contends that his counsel's failure to object to the prosecutor's argument during closing, as set forth in part A of the Discussion, ante, constituted ...


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