Filed 8/24/21 P. v. Delgado CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

IVAN DELGADO,

Defendant and Appellant.

B302051

Los Angeles County

Super. Ct. No. VA148234

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Yvonne T. Sanchez, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Scott A. Taryle and 

Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff 

and Respondent. 
2

INTRODUCTION

Defendant and appellant Ivan Delgado pled no contest to 

attempted murder, and admitted the allegation that he

personally used a firearm. The trial court sentenced him to 12 

years in state prison. On appeal, Delgado contends the trial court 

abused its discretion by permitting the prosecution to file an 

amended information adding a charge of willful, deliberate, and 

premeditated attempted murder. He asserts there was 

insufficient evidence admitted at his preliminary hearing to 

support the new charge. We reject Delgado’s contention and 

affirm.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an 

information charging Delgado with assault with a firearm (Pen. 

Code,1 § 245, subd. (a)(2); count one), possession of a firearm by a 

felon (§ 29800, subd. (a)(1); count two), and shooting at an 

unoccupied vehicle (§ 247, subd. (b); count three). The 

information further alleged Delgado committed counts one and 

two for the benefit of, at the direction of, or in association with a 

criminal street gang with the specific intent to promote, further 

or assist in criminal conduct by gang members. (§ 186.22, subd. 

(b)(1)(A) and (C).) With respect to count one, the information also

alleged Delgado caused great bodily injury (§ 12022.7, subd. (a)), 

personally used a firearm (§ 12022.5, subd. (a)), and sustained a 

prior prison term conviction (§ 667.5, subd. (b)). Delgado pled not 

guilty to all counts and denied all allegations. 

1 All further undesignated statutory references are to the 

Penal Code.
3

On April 26, 2019, over Delgado’s objection, the trial court 

permitted the prosecution to file an amended information. The 

amended information added an additional count of attempted 

willful, deliberate, and premeditated murder. (§§ 664, 187, subd. 

(a); count four). With respect to count four, criminal street gang 

(§ 186.22, subd. (b)(1)(C)), great bodily injury (§ 12022.7, subd. 

(a)), firearm allegations (§§ 12022.5, subd. (a), 12022.53, subds. 

(c)-(d)), and a prior prison term conviction (§ 667.5, subd. (b)) 

were also alleged. Delgado pled not guilty to count four and 

denied the new allegations. 

Nearly five months later, on September 18, 2019, the case 

was called for a readiness hearing. Delgado pled no contest to

attempted murder,

2 and admitted he personally used a firearm

(§ 12022.5, subd. (a)). The plea agreement provided Delgado 

would serve 12 years in state prison. The court imposed that 

sentence, which consisted of the upper term of nine years on the 

attempted murder count, plus a three-year personal use of a 

firearm enhancement.

Delgado timely appealed. Thereafter, the trial court 

granted Delgado’s request for a certificate of probable cause.

FACTUAL BACKGROUND3

At about 5:15 p.m. on July 10, 2018, R.G. was taking a nap 

at his home on Elaine Avenue in Norwalk, when he heard what 

he thought were fireworks. Later that evening, a police officer 

2 Based on the parties’ plea agreement, the court dismissed 

the allegation that the attempted murder was willful, deliberate 

and premeditated. 

3 The following facts are taken from the transcript of the 

preliminary hearing. 
4

knocked on his door, and R.G. went outside to inspect his truck. 

There was damage to the truck’s left front fender. The damage

was not there before R.G. heard what he thought were fireworks.

That same evening, at approximately 5:15 p.m., Deputy 

Velasquez responded to a call of shots fired near Elaine Avenue.

After responding, Deputy Velasquez went to Saint Francis 

Hospital and interviewed M.A., who had been shot in the arm. 

M.A. said he was riding his bike in an alley. When he approached 

Elaine Avenue, he saw two men standing across the street. The 

men yelled, “Where are you from?” and then said, “This is Orange 

Street.” M.A. responded, “I know where I’m at.” One of the men 

removed a gun and began firing at M.A. As he ran away, M.A.

heard several gunshots and was hit in the right arm.

M.A. initially identified the men by their monikers, Droopy 

and Chico. At M.A.’s direction, Deputy Velasquez searched the 

Orange Street Locos on Google, and watched a video on YouTube

consisting of a slideshow of photographs with music. Shortly into 

the video, M.A. asked Deputy Velasquez to pause it on a 

photograph of two men, and said those were the two men who 

had shot him. Deputy Velasquez recognized the two men as 

Delgado and Aaron Aguirre, a minor. Two days later, M.A.

identified Delgado as the shooter from a photographic lineup. 

Deputy Velasquez testified he was familiar with the 

Orange Street Locos gang. The gang had about 50 documented 

members, and about a dozen active members. The shooting 

occurred in an area within territory claimed by the gang. In 

Deputy Velasquez’s opinion, both Delgado and Aguirre were 

members of the Orange Street Locos gang, and the shooting was 

committed for the benefit of, in association with, or at the 

direction of the gang. 
5

DISCUSSION

Delgado contends the trial court erred by permitting the 

prosecution to amend the information to add a charge of 

attempted willful, deliberate, and premeditated murder because 

the new charge was not supported by the evidence at the 

preliminary hearing. Specifically, he argues there was no 

evidence presented that Delgado intended to kill the victim. The 

Attorney General counters that although direct evidence of a 

defendant’s intent rarely exists, intent to kill may be inferred

here from the evidence presented at the preliminary hearing. We 

agree with the Attorney General.

Section 1009 grants the trial court discretion to permit the 

amendment of the information at any time, so long as the 

amended charge is supported by the evidence at the preliminary 

hearing.4 (People v. George (1980) 109 Cal.App.3d 814, 818.)

“‘Evidence that will justify a prosecution need not be sufficient to 

support a conviction. [Citations.]’” (Rayyis v. Superior Court

(2005) 133 Cal.App.4th 138, 150.) The test is whether the 

evidence at the preliminary hearing would lead a person “‘“of 

ordinary caution or prudence . . . to believe and conscientiously 

4 Section 1009 provides, in relevant part: “The court in which 

an action is pending may order or permit an amendment of an 

indictment, accusation or information . . . at any stage of the 

proceedings . . . . [T]he trial or other proceeding shall continue as 

if the pleading had been originally filed as amended, unless the 

substantial rights of the defendant would be prejudiced thereby, 

in which event a reasonable postponement, not longer than the 

ends of justice require, may be granted. An indictment or 

accusation cannot be amended so as to change the offense 

charged, nor an information so as to charge an offense not shown 

by the evidence taken at the preliminary examination.”
6

entertain a strong suspicion of the guilt of the accused.”’

[Citations.]” (Ibid.) “‘“[A]lthough there must be some showing as 

to the existence of each element of the charged crime [citation] 

such a showing may be made by means of circumstantial 

evidence supportive of reasonable inferences[.]”’” (Ibid.) We will 

not disturb the trial court’s decision to permit an amendment in 

the absence of a clear abuse of discretion. (People v. Bolden (1996) 

44 Cal.App.4th 707, 716.)

“‘Attempted murder requires the specific intent to kill and 

the commission of a direct but ineffectual act toward 

accomplishing the intended killing.’ [Citation.] Because direct 

evidence of a defendant’s intent rarely exists, intent may be 

inferred from the circumstances of the crime and the defendant’s 

acts. [Citation.]” (People v. Sanchez (2016) 63 Cal.4th 411, 457.)

“The crime of attempted murder is not divided into degrees, but 

the sentence can be enhanced if the attempt to kill was 

committed with premeditation and deliberation. [Citation.]” 

(People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez).) “‘“‘An 

intentional killing is premeditated and deliberate if it occurred as 

the result of preexisting thought and reflection rather than 

unconsidered or rash impulse.’ [Citation.]”’” (People v. Brady

(2010) 50 Cal.4th 547, 561.) The “three categories of evidence 

relevant to determining premeditation and deliberation [are]: 

(1) events before the murder that indicate planning; (2) a motive 

to kill; and (3) a manner of killing that reflects a preconceived 

design to kill.” (Gonzalez, supra, 54 Cal.4th at p. 663.) These 

guidelines, however, are “not all required [citation], nor are they 

exclusive in describing the evidence that will support a finding of 

premeditation and deliberation.” (Ibid.)
7

Applying the above-stated principles, we conclude the trial 

court did not abuse its discretion by granting the prosecution 

leave to file the amended information adding a new charge of 

attempted willful, deliberate, and premeditated murder. At the 

preliminary hearing, Deputy Velasquez testified that Delgado 

was a member of the Orange Street Locos gang. He further 

testified that as the victim rode his bike in an alley in a territory 

claimed by the gang, Delgado and Aguirre (another member of 

the gang) were across the street and yelled, “Where are you 

from?” and “This is Orange Street.” After the victim responded, “I 

know where I’m at” Delgado pulled out a gun. Such a gang 

challenge indicates Delgado may have planned a murderous 

attack to promote the interests of his gang. Further, although the 

victim ran away after Delgado pulled out his gun, Delgado 

proceeded to fire several shots at the victim, one of which hit him

in his right arm. We conclude that an ordinarily cautious person 

could, on the basis of Deputy Velasquez’s testimony, entertain a 

strong suspicion that Delgado intended to kill the victim and the 

attempt to kill was committed with premeditation and 

deliberation. The trial court therefore did not abuse its discretion 

by concluding the amendment was supported by evidence offered 

at the preliminary hearing.
8

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS\

CURREY, J. 

We concur: 

MANELLA, P.J. 

COLLINS, J.