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People v. Delgado

Supreme Court of California

February 27, 2017

THE PEOPLE, Plaintiff and Respondent,
ANTHONY GILBERT DELGADO, Defendant and Appellant.

         Kings County Super. Ct. No. 99CM7335 Peter M. Schultz Judge

          Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Jolie Lipsig, Deputy State Public Defender, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell, Sean M. McCoy and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

          Corrigan, J.

         Defendant, Anthony Gilbert Delgado, killed two fellow inmates while serving a 25-year-to-life sentence in Corcoran State Prison. A jury convicted him of two counts of first degree murder, [1] with the special circumstances of lying in wait[2] and multiple murders;[3] two counts of assault by a life prisoner with malice aforethought, [4] with findings that the assaults proximately caused the victims' deaths; battery by a prisoner on a correctional officer;[5] and possession of a sharp instrument by a prisoner.[6] It also found he had suffered two prior felony convictions within the meaning of the “Three Strikes” law.[7]

         The jury returned a death verdict and the trial court entered a conforming judgment, [8] as well as two consecutive terms of 25 years to life for the battery and weapon possession counts. This appeal is automatic. We affirm the judgment in its entirety.

         I. FACTS

         A. Guilt Phase

         1. Murder of Frank Mendoza

         On September 30, 1998, defendant and Frank Mendoza shared a cell. Around 11:15 p.m., an officer noted that both men were lying on their bunks watching television. About 25 minutes later, defendant called out, and Officer Carmona went to investigate. He saw Mendoza slumped forward on his knees between the two beds. Defendant calmly walked over to Mendoza, lifted him up by a cloth wrapped around his neck, and dropped him back to the ground. Mendoza had been strangled to death. A pillowcase covered his face, secured by a torn bed sheet. A white sock and second torn sheet were tied around his mouth. Written on the back of Mendoza's T-shirt were the words: “There's consequences to everything. He paid his and I'm to pay mine, too. Toro.”

         Defendant gave a taped statement about the killing and reenacted the crime. Mendoza had verbally abused defendant and bragged about his prior status as a lieutenant in the Nuestra Familia prison gang. Defendant warned he would “take [Mendoza] out” if he continued this behavior. Mendoza persisted, so defendant decided to kill him. Already serving a life sentence, defendant had nothing more to lose. Defendant “knew exactly when [he] was going to do it.” After nighttime cell check, he covered the overhead light and wedged paper in the cell door to prevent entry. Mendoza seemed nervous, so defendant watched television to put him at ease. When the opportunity arose, defendant choked his victim for over four minutes, which he timed. Mendoza struggled, but eventually defendant could “fe[el] the life come out of him.” Defendant tied a sheet and a sock around his neck, pulling it as tight as he could. He watched Mendoza for a while to make sure he was dead. Defendant felt no remorse. He said Mendoza “had it coming.” He wrote a message on Mendoza's T-shirt and watched more television. He then removed the paper from the door and alerted the guards.

         2. Murder of Kevin Mahoney

         On July 2, 1999, defendant and inmate Kevin Mahoney, Jr., were placed in an exercise yard together. About two hours later, a security alarm summoned Officer Robert Todd to the yard. Mahoney was lying facedown in a pool of blood. He had no pulse or respiration. There were lacerations and bruises on his face and body, and a subdural hemorrhage at the back of his head. Two T-shirts were tied around his neck. A nearby wall bore blood splatters and a “happy face” drawn in blood. Defendant's feet and legs were covered in blood. While waiting in a holding cell, defendant told one officer, “You guys gave me Three Strikes on some chicken shit fight, so now I'm going to earn mine. I got two now, and I got one more to go.”

         A surveillance tape captured the attack. When defendant and Mahoney were placed in the yard, they shook hands, then walked and sat separately for several minutes. Later they walked together. Approximately 52 minutes after they entered the yard, defendant attacked Mahoney without warning, punching and kicking him repeatedly for about 30 seconds. After the attack, Mahoney sat on the ground as defendant paced back and forth. Defendant attacked again about 12 minutes later, striking Mahoney several times in the head with a shoe. Mahoney remained seated; defendant continued to pace. A third attack occurred about 27 minutes after the second. Defendant grabbed Mahoney from behind and dragged him into a shadowy corner. He choked his victim for over four minutes, then picked up a T-shirt and tied it around Mahoney's neck. Defendant resumed pacing, repeatedly returning to the body and stomping on it.

         Mahoney was strangled to death. His blunt force injuries were consistent with having suffered repeated blows.

         Again, defendant gave a taped statement and reenacted the crime. He decided to kill Mahoney as soon as they were put in the yard together, and put him at ease by telling him that he wanted no trouble. Defendant judged Mahoney an “[e]asy” mark. Defendant had planned to lunge at his victim and snap his neck, but he was unable to grip him securely. He resorted to punching and kicking instead. Defendant attacked Mahoney three times “until I was able to get him in a choke hold and drag him off into the corner. And that's where I wanted him.” Defendant explained that he moved Mahoney to that location because it would be more difficult for guards to shoot him. He choked the struggling man until he stopped breathing, then tied torn T-shirts around his neck. Defendant could hear Mahoney “gurgling in his [own] blood” which angered him. Intent on “caus[ing] as much injury... as I could, ” he used his foot to repeatedly slam Mahoney's head into the concrete.

         Defendant told an investigator, “I did it so what, what can you do to me[?] No one can do nothing to me.” As to motive, he said: “I've [sic] snapped when... they gave me life for that stupid ass shit... a little over a[] year and a half ago. When they gave me three strikes for that shit, I told myself, made a deal with the devil, you give me the opportunity man to pick up each murder for each one of those strikes we're cool. So that's... my pack [sic] with the devil man, I already got two that's my two strikes. I'm gonna... earn each and every one of my strikes.” He confirmed that he would kill again, saying “I hope there gonna [be] ten or fifteen” more victims. According to defendant, “My whole objective from here to now, now until I die, is to kill and to hurt, to cause as much destruction how[ ]ever, where ever, when ever. And oh as far as I'm concerned I got no more soul and I don't give [a] fuck no more. Nothing else matters to me.”

         3. Battery of Correctional Officer Erik Mares

         Between the two murders, on October 20, 1998, defendant attacked Correctional Officer Eric Mares. As he was being handcuffed to be taken to the shower, defendant pulled away and ran to the middle of his cell with the handcuff attached to one wrist. Asked what was bothering him, defendant replied, “[T]his conversation's over and I'm taking this to the next level.” Several officers assembled for a cell extraction. When they directed pepper spray into the cell, defendant rushed at the door holding his mattress to block the spray. An officer ran in, but slipped immediately because a slick substance covered the floor. A second officer also slipped and fell. Officer Mares managed to enter and grab defendant's legs. Defendant jabbed at Mares several times with a pointed object. Another officer pried the weapon from defendant's grasp. A sharp piece of plastic with a cloth handle was recovered from the cell floor. A second piece of sharpened plastic was found on defendant's bed. Mares had puncture holes in his protective vest and cuts on his shoulder.

         Defendant admitted that he “[j]ust got bored, ” and decided to provoke a cell extraction. He had two weapons ready for the confrontation and put shampoo in front of the cell door so entering officers would lose their footing. He admitted stabbing Officer Mares in the shoulder and trying to get “a nice good solid straight thrust, if I was to get one in the neck or somethin['] like that, it would cause serious injury. [¶]... I could get an eye or somethin['].”

         4. Aggravated Assault by a Life Prisoner

         Defendant was convicted of two counts of assault with a deadly weapon in 1994, and was serving a life sentence when the charged crimes occurred.

         B. Penalty Phase

         1. Prosecution

         The prosecution introduced evidence of 10 incidents between 1997 and 2000 during which defendant possessed various weapons and assaulted correctional officers or another inmate. Several of these incidents are discussed in further detail, post, at pages 44-50. Evidence also established defendant was convicted of receiving stolen property in 1986, possession of a weapon by an inmate in 1986, and second degree burglary in 1990.

         2. Defense

         The youngest of nine children sired by four different fathers, defendant was neglected and abused by his alcoholic mother. As an infant, he was often left crying, soiled, and hungry after his mother passed out. His 11-year-old sister frequently assumed his care. As defendant got older, his mother would tie his hands and lock him in a dark closet for extended periods. She beat him often with a broom or a belt. She sometimes made him kneel on grains of rice, which cut his bare knees. The family had little to eat, but his mother punished him if he accepted food from neighbors.

         Defendant's cousin, Inocencio Ortega, recalled defendant's mother beating him and locking him in the closet. Defendant sometimes hid at Ortega's house to escape. Once defendant's older brothers gave him glue to sniff.

         Defendant was removed from his mother's care at about seven years old. When he was 11, he lived for over a year in a group home. Defendant had scars on his wrists that resembled ligature marks. Slight of build, he was self-protective. He exhibited low self-esteem and would destroy his things when he was upset or frustrated. His fifth grade teacher described him as bright, funny, and trustworthy. He responded well when treated with respect, but had a temper and lacked social skills. He would frequently push and shove other children because he did not know how to communicate. Told his behavior was inappropriate, he improved and became popular with his classmates.


         A. Guilt Phase Issues

         1. Presence of Correctional Officers During Attorney-Client Communications

         After killing Kevin Mahoney, defendant vowed in an interview that he would kill again. (See ante, at pp. 4-5.) Concerned for defense counsel's safety, and with her express agreement, the trial court ordered two correctional officers to be present during all attorney-client consultations. They were bound by the attorney-client privilege. Defendant contends that the trial court exceeded its jurisdiction by accepting the parties' stipulation and purporting to extend the attorney-client privilege to the correctional officers, who were unnecessary to the consultation. He criticizes the court for failing to consider alternative arrangements, such as physical restraints, that would have accomplished the same goal without jeopardizing confidentiality. He argues that the court-sanctioned intrusion deprived him of his federal and state constitutional rights to counsel, to present a defense, to be present during all proceedings, and to fundamental due process. He contends that the error was structural and reversible without a showing of prejudice. We reject his claims.

         a. Proceedings Below

         On August 6, 1999, the court held an in-chambers meeting with the prosecutor and prospective Defense Counsel Donna Tarter. The prosecutor observed that defendant had already killed two people and that he had reason to believe defendant would kill again. Voicing concerns for Tarter's safety, the prosecutor suggested that two correctional officers be present at all attorney-client meetings and that they be bound by the attorney-client privilege as to anything they might overhear. Tartar agreed, and the court made the order to the two correctional officers present. Thereafter, Tartar met privately with defendant and was appointed by the court to represent him. Initially, there was no discussion of the court's order in open court in defendant's presence.

         On December 22, 1999, while defendant was present in open court, the prosecutor explained the security arrangements: “any communications that are overheard between Ms. Tarter and Mr. Delgado during any of the court proceeding[s] or when she is visiting him are to be encompassed within the attorney-client privilege. Given the nature of this case, we've personally given that privilege to officers Masters and [Klose] so that they may be present during all communications just for the safety of all parties.” Defense counsel stated her agreement, and the trial court expressly admonished the officers “that you're each ordered not to disclose any information you might overhear in any of those conversations to anyone, including family members, coworkers, anyone.” Both officers affirmed their understanding. Defendant voiced no objection.

         During trial, three correctional officers were stationed near defendant, one on either side and one directly behind. The record is not entirely clear if defendant and defense counsel sat next to each other or if a correctional officer sat between them. Defendant's hands were unrestrained so that he could write notes to counsel. Defense counsel expressly agreed to these security arrangements.

         From the time he was first arraigned, defendant appeared personally in court approximately 23 times during pretrial and trial proceedings. He never complained to the court about the presence of officers at confidential attorney-client meetings. On April 14 and May 2, 2000, before trial began, the court inquired of defendant personally if there was any reason the trial could not go forward. He stated there was none. Defense counsel likewise answered ready for trial. Periodically thereafter, the court inquired of defense counsel if she had any objections or concerns. She, too, voiced no concern about the presence of officers at attorney-client meetings or in the courtroom.

         Here, defendant advances both statutory and constitutional challenges to the court's order.

         b. Attorney-Client Privilege and the Need for the Ordered Security Measures

         Citing Evidence Code section 952, defendant argues that the correctional officers' presence destroyed the confidentiality of his attorney-client communications because it was not reasonably necessary to further the purpose of the legal consultation. (See Evid. Code, § 952;[9] Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1503 (Zurich).) He reasons that there was no showing of a security risk to defense counsel, and that other measures, such as physical restraints, would have been adequate. He contends that the parties were not authorized to extend the attorney-client privilege by stipulation, and that the trial court acted in excess of its jurisdiction in accepting the stipulation.

         These claims have been forfeited. Defense counsel expressly agreed to the officers' presence at attorney-client meetings to ensure her safety, and both parties stipulated that the officers would be bound by the privilege. In the trial court, neither party challenged the necessity for the measures or the legality of the stipulation. Under these circumstances, defendant may not be heard to argue for the first time on appeal that the arrangement was unnecessary and that the privilege was destroyed. (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 696-697; see generally Ward v. Taggart (1959) 51 Cal.2d 736, 742.) Nor may he argue that the trial court abused its discretion in failing to devise a different solution. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 389 (Bryant); People v. Montes (2014) 58 Cal.4th 809, 843; People v. Duran (1976) 16 Cal.3d 282, 289). Similarly, defendant's jurisdiction argument is undermined by the absence of a challenge below. (See People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6 [acts in excess of jurisdiction are subject to waiver and forfeiture].)

         Defendant argues that he should not be bound by his counsel's stipulation, which occurred before she was formally appointed. The timing here was immaterial. The stipulation was made to facilitate counsel's appointment. Counsel was appointed shortly thereafter, whereupon the stipulation became effective for all subsequent attorney-client meetings. There was one brief consultation in the interim. However, even if that meeting was outside the stipulation for purposes of our forfeiture analysis, defendant fails to identify anything of consequence that occurred to support his claims of error.

         In addition, nothing prevented counsel from revisiting the terms of the stipulation after speaking with defendant.[10] Defendant counters the record does not reveal whether or not counsel told him about the arrangement extending the attorney-client privilege to the attending officers. We will not presume counsel's omission. It is defendant's burden to show that counsel performed deficiently, by developing the record on habeas corpus if necessary. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope), overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; see generally People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)

         Defendant further argues that counsel could not be counted on to object on his behalf to an order made solely for counsel's benefit and contrary to his rights and interests. His only authority involves a failure to object to an award of attorney's fees, a circumstance that is readily distinguishable. (Cf. People v. Viray (2005) 134 Cal.App.4th 1186, 1214.) Security risks occur with some frequency, and do not invariably create a conflict of interest for counsel. Defendant points to no evidence in the record that counsel labored under an actual conflict that adversely affected her performance. (Cuyler v. Sullivan (1980) 446 U.S. 335, 348.) On the contrary, counsel agreed to the arrangement only after receiving express assurances from the prosecution that it would not compromise the attorney-client privilege. Nor does defendant demonstrate that the potential risk to counsel's safety caused her to perform deficiently. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)

         Further, it is not accurate to say the arrangement was made solely for counsel's benefit. Defendant was entitled to counsel. His own statements and admitted conduct made securing willing and capable counsel uniquely difficult. The court's action was taken to ensure that defendant's right to counsel was honored.

         Even were we to overlook defendant's forfeiture and reach the merits, there is no basis for relief. Evidence Code section 954 affords the client “a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer.” (Zurich, supra, 155 Cal.App.4th at p. 1494.) Absent actual disclosure, or a demand for disclosure, the statute is simply not implicated. (People v. Alexander (2010) 49 Cal.4th 846, 887 (Alexander).) In Alexander, we rejected the defendant's claim that a police detective's interception and recording of a three-way call between the defendant, his mother, and a defense investigator violated the statutory attorney-client privilege. We reasoned: “Defendant has made no showing that any witness disclosed any information from the call during the proceedings in violation of Evidence Code section 954. Indeed, substantial evidence supports the trial court's findings that the call's contents were not disclosed to the prosecutors.” (Id. at p. 887, fn. omitted.) Likewise here, the prosecutor did not seek to discover or offer evidence of confidential communications. Additionally, there is no evidence that the officers ignored the admonition by disclosing confidential communications to anyone. In short, nothing before us indicates the officers' presence violated defendant's rights.

         We likewise reject defendant's challenge to the necessity of the security arrangements, and the availability of less intrusive alternatives. “In general, the ‘court has broad power to maintain courtroom security and orderly proceedings' [citation], and its decisions on these matters are reviewed for abuse of discretion.” (People v. Lomax (2010) 49 Cal.4th 530, 558 (Lomax).) Given that defendant had killed two people with his bare hands and had vowed to kill again, the trial court did not abuse its discretion by adopting the parties' proposed solution to a clear security problem.

         We emphasize, however, that we do not suggest such measures are necessary or appropriate in every circumstance. Ordering law enforcement officers to be present at attorney-client meetings is an unorthodox solution with obvious potential pitfalls. We hold only that, under these extreme circumstances, the court did not abuse its discretion. Trial courts are well advised to fashion security measures tailored to minimize the risk of intrusion on the defendant's constitutional rights. With these observations in mind, we turn to defendant's Sixth Amendment claim.

         c. Deprivation of the Right to Counsel

         Defendant argues that the right to confidential communications is “absolute and essential to both the federal and state right to representation by counsel.” (Citing In re Rider (1920) 50 Cal.App. 797, 799.) According to defendant, the officers involved here were members of the prosecution team, and their presence during attorney-client consultations destroyed confidentiality despite the parties' stipulation to the contrary. Defendant claims that the officers' presence had a chilling effect on his communications with counsel and his defense preparation, resulting in a “wholesale evisceration” of his right to counsel under both the Sixth Amendment and article I, section 15 of the California Constitution. These circumstances, he argues, were “tantamount to a failure to appoint counsel at all, ” and amounted to structural error. The appellate record fails to support defendant's claims of error.

         As explained in Alexander, supra, 49 Cal.4th 846, the federal Constitution does not protect confidential communications between a defendant and his attorney for their own sake. “No federal constitutional provision... establishes an attorney-client communication privilege. Rather, the Sixth Amendment guarantees a criminal defendant the right to ‘assistance of counsel for his defense.' (U.S. Const., 6th Amend.) Confidential communication between a defendant and his lawyer is itself not a separate ‘right' that the federal Constitution guarantees, but rather an aspect of ensuring fulfillment of the right to assistance of counsel.” (Alexander, supra, 49 Cal.4th at pp. 887-888.)

         Alexander held that interception of attorney-client communications does not constitute a complete denial of the right to counsel. (Alexander, supra, 49 Cal.4th at p. 888.) Citing Weatherford v. Bursey (1977) 429 U.S. 545 (Weatherford), we explained that the Supreme Court had “rejected a per se rule that ‘ “whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.” ' ” (Alexander, at p. 888, quoting Weatherford, at p. 549.) The high court made clear that “unless the record supports ‘at least a realistic possibility of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment violation.' ” (Alexander, at p. 888, quoting Weatherford, at p. 558.)

         Accordingly, we look to Weatherford, supra, 429 U.S. 545, to evaluate defendant's Sixth Amendment claim. Weatherford was an undercover agent for a state law enforcement agency. He vandalized a local office of the Selective Service with Bursey and two others. To maintain his undercover status, Weatherford was arrested and charged along with Bursey. Before trial, Weatherford was invited to two meetings where Bursey and his attorney discussed defense tactics. Weatherford did not share the details of these meetings with anyone. However, he did testify at Bursey's trial regarding his own undercover activities and Bursey's act of vandalism. After Bursey was convicted, he filed a civil rights action against Weatherford and his supervisor under 42 United States Code section 1983, alleging that he had been deprived of his Sixth Amendment right to the assistance of counsel. (Weatherford, at pp. 547-549.)

         In evaluating the Sixth Amendment claim, the high court rejected the notion that a constitutional violation can be made out “whenever conversations with counsel are overheard” by a government agent. (Weatherford, supra, 429 U.S. at p. 551.) Rather, the court held that “the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial.” (Id. at p. 552.) The court identified several relevant factors, including whether: (1) a witness testifies at trial about the confidential conversations; (2) any of the state's evidence originated in these conversations; (3) the conversations were communicated to the prosecutor; or (4) the conversations were used in any other way to the defendant's substantial detriment. (Id. at p. 554.) The court noted that “[n]one of these elements is present here.... Weatherford's testimony for the prosecution about the events of March and April 1970 revealed nothing said or done at the meetings... that he attended. None of the State's evidence was obtained as a consequence of Weatherford's participation in those meetings.” (Id. at p. 555, fn. omitted.) Further, the district court expressly found that Weatherford had not communicated anything about the meeting to either his superiors or the prosecution. (Id. at p. 556.)

         Applying the Weatherford factors to defendant's claim, he fails to establish a constitutional violation. The officers who provided security were expressly admonished not to reveal the content of any overheard conversations to anyone.[11] Again, there is no evidence they disregarded the court's admonishment by disclosing confidential communications. Nor did the officers testify regarding any attorney-client conversation. Finally, defendant fails to identify any evidence allegedly developed as a result of the correctional ...

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