People v. Virgo
166 Cal. Rptr. 3d 384
Cal. Ct. App.2013Background
- In 2006 Placer County deputies (SET/SWAT) surrounded a house to arrest David Allan Virgo, a parolee with violent priors and alleged Hell’s Angels affiliation; officers used a surround-and-call-out and then tear gas after threats from inside.
- Shots were fired from inside the house; trajectory analysis found at least 14 outgoing shots (10 exiting the house) and many casings and bullets consistent with multiple shooters or multiple shots from inside; some shots were aimed high (ceiling).
- Deputies taking cover by a Toyota in front of the house (Woo, Lockhart, Franz, Glau) testified multiple shots came toward them; Deputy Tindall and others at the northwest corner saw at least one shot aimed at them.
- Two handguns were recovered outside a bedroom window; defendant’s fingerprints were on one weapon; defendant later boasted he fired many rounds and referenced C-4 and prior shootings.
- A jury convicted Virgo of 10 counts of willful, deliberate, premeditated attempted murder of peace officers, multiple assault and weapon charges, and enhancements; trial court imposed lengthy consecutive and concurrent terms.
- On appeal the court affirmed most convictions but reversed five attempted-murder counts for insufficient evidence (counts for Steinhauer, Powers, West, Conners, Kemper) and ordered corrections to the abstract of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for 10 attempted-murder counts | Evidence of numerous shots, casings, trajectories, and defendant’s statements show intent to kill all officers | Many shots were aimed at ceiling or not shown to be directed at specific officers; cannot infer intent to kill each officer | Reversed five of ten counts; substantial evidence supports attempts as to Woo, Lockhart, Franz, Glau, and Tindall but not as to Steinhauer, Powers, West, Conners, Kemper |
| Review of Pitchess in camera ruling | County counsel produced relevant complaint names for one officer; in camera review sufficient | Appellant sought broader disclosure of personnel files for excessive force, falsification, moral turpitude | Denial of broader discovery affirmed; appellate independent review found no error |
| Admission of gang evidence (Hell’s Angels/enforcer role) | Gang membership relevant to reasonableness of officers’ conduct and what they knew; limited-purpose admission | Admission unduly prejudicial and used to show criminal disposition | Admission for limited purpose upheld with jury instruction to consider only for lawfulness of officers’ actions |
| Prejudicial testimony about a "killing" in Penryn (witness blurt) | Prosecutor and court cured error via struck testimony, stipulation, and admonition; no mistrial needed | Testimony was incurably prejudicial and suggested propensity to shoot | Court held the curative measures adequate; error, if any, cured given overwhelming proof of guilt |
Key Cases Cited
- Pitchess v. Superior Court, 11 Cal.3d 531 (1974) (establishes procedure for defense discovery of peace officer personnel files)
- People v. Perez, 50 Cal.4th 222 (2010) (specific intent to kill requirement for attempted murder and grouping/multiple-victims analysis)
- People v. Stone, 46 Cal.4th 131 (2009) (intent to kill need not target a particular person when firing into a group)
- People v. Bland, 28 Cal.4th 313 (2002) (distinction between implied malice for murder and specific intent for attempted murder)
- People v. Halvorsen, 42 Cal.4th 379 (2007) (definition of deliberation and premeditation)
- People v. Memory, 182 Cal.App.4th 835 (2010) (admission of gang evidence can be prejudicial when used to show criminal disposition)
- People v. Hardy, 33 Cal.2d 52 (1948) (curative power of striking testimony and jury admonition; limits when evidence is highly prejudicial)
- People v. Mickey, 54 Cal.3d 612 (1991) (presumption jury follows court admonitions)