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People v. Virgo

California Court of Appeal, Third District

December 30, 2013

The PEOPLE, Plaintiff and Respondent,
v.
David Allen VIRGO, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION.[*]]

As Modified on Denial of Rehearing January 24, 2014.

APPEAL from a judgment of the Superior Court of Placer County, Colleen M. Nichols, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 62-064676).

Page 789

COUNSEL

[166 Cal.Rptr.3d 386] Law Offices of John F. Schuck and John F. Schuck, Palo Alto, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

NICHOLSON, Acting P. J.

Page 790

A jury convicted defendant David Allan Virgo of 10 counts of willful, deliberate, and premeditated attempted murder of a peace officer (Pen.Code, §§ 664, subd. (e)/187, subd. (a)); [1] 10 counts of assault with a firearm and personally using a firearm against those 10 officers (§§ 245, subd. (d)(2), 12022.5, subd. (a), (d)); two counts of being a felon in possession of a firearm, (former § 12021, subd. (a)(1)); and additional conduct and status enhancements. (§§ 667.5, subd. (b), 12022.53, subd. (c), 12022.5.)

The trial court sentenced defendant to a state prison term of 46 years eight months, plus 75 years to life, calculated as follows: five separate and consecutive terms of 15 years to life on five counts of deliberate attempted murder of a peace officer (§ 664, subds. (e), (f)/187, subd. (a)); plus a 20-year determinate enhancement on one of the attempted murder counts for personally using a firearm; plus four consecutive determinate terms of six years eight months, or one-third of the 20-year term, for the same enhancement on four attempted murder counts (§ 12022.53, subd. (c)).

[166 Cal.Rptr.3d 387] As to the remaining counts, the court imposed five separate and concurrent terms of 15 years-to-life for the other five attempted murder counts, along

Page 791

with the 20-year enhancements as to each of those counts. It also imposed, and stayed under section 654, sentences on the 10 counts of assault with a firearm on a peace officer and their related enhancements, and the two counts of being a felon in possession of a firearm.

On appeal, defendant raises the following claims:

(1) Substantial evidence does not support 10 counts of willful, deliberate, and premeditated attempted murder;

(2) We must review the trial court's in-camera proceedings on defendant's Pitchess [2] motion for abuse of discretion;

(3) The trial court abused its discretion by admitting evidence of defendant's gang membership;

(4) Certain prejudicial testimony was incurable, despite the court's attempts to cure; and

(5) These errors constitute cumulative error.

We conclude five of the 10 convictions of attempted murder are not supported by substantial evidence, and we reverse only those convictions. Except to order corrections to the abstract of judgment, we affirm the judgment in all other respects.[3]

FACTS

In 2006, defendant was a parolee at large, and the Placer County Sheriff's Office (Sheriff) was looking for him. He had assaulted a man, breaking his nose, and left him unconscious. The Sheriff issued a bulletin for defendant's arrest.

The bulletin, a be-on-the-lookout bulletin, warned officers that defendant was considered armed and unpredictable, and they should handle the matter with extreme caution. The Sheriff's warning was based in part on advice the Sheriff had received from the Department of Corrections and Rehabilitation. That agency had informed the Sheriff that defendant was unpredictable and any arrest should by performed by the Sheriff's Special Enforcement Team (SET), the Sheriff's version of a Special Weapons and Tactics Team (SWAT).

Page 792

In addition, defendant had told Sheriff officers in an earlier contact he was a member of the Hell's Angels and part of " the Filthy Few," a Hell's Angels enforcer group known for violence.

On October 18, 2006, deputies located defendant at a house on Happy Hollow Lane in Newcastle. The SET commander, Lieutenant Jeffrey Ausnow, directed the SET to report and prepare to respond. Lieutenant Ausnow knew defendant from high school. He also knew defendant had felony convictions involving weapons, ammunitions, and explosives. Lieutenant Ausnow had been informed defendant was an enforcer for the Hell's Angels. And he knew defendant had two active felony arrest warrants, one for possession and discharge of handguns and one for a battery with serious bodily injury.

The SET assembled at the California Highway Patrol office in Newcastle. All SET members were wearing sheriff's uniforms with helmets and body armor vests. Lieutenant Ausnow briefed the team members [166 Cal.Rptr.3d 388] on the situation. He directed them to do a " surround and call-out," a standard SWAT-type maneuver where deputies stealthily surround a house so the suspect inside cannot escape or hurt others, and then they give the suspect an opportunity to surrender. If things ...


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