P. v. Silva
Filed 11/19/09 P. v. Silva CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. FRANK SILVA, Defendant and Appellant. | B213734 (Los Angeles County Super. Ct. No. BA289808) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Fred Wapner, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant Frank Silva appeals from the judgment entered following a jury trial in which he was convicted of two counts of attempted murder, with gang and firearm discharge findings. Defendant contends the evidence is insufficient to support the jurys findings on the gang enhancement allegation (Pen. Code, 186.22, subdivision (b); all further statutory references pertain to the Penal Code unless otherwise specified) and the section 12022.53, subdivision (d) firearm discharge allegation. We affirm.
BACKGROUND
On the evening of September 3, 2005, a van drove past 15-year-old J.M. and 17-year-old D.J. as they left a store. D.J. looked at the van and the three men in the van looked at D.J. D.J. and J.M. walked into an alley. The van entered the alley and the driver extinguished its headlights. Defendant leaned out of the front passenger window holding a gun and began shooting at J.M. and D.J. Someone in the rear of the van also fired a gun. The two guns sounded different. D.J. was shot in the stomach and fell to the ground. Defendant got out of the van and walked toward D.J. while continuing to shoot. D.J. got up and ran away. Neither D.J. nor J.M. had a gun, and the men in the van did not say anything before opening fire. J.M. lifted D.J.s shirt and saw a single bullet hole in D.J.s stomach. A Los Angeles Police Department officer who heard the shots drove to the scene and chased the van. When the van stopped, defendant got out of the front passenger seat, Edward Delacruz got out of the back seat carrying a shotgun, and Robert Contreras left the drivers seat. The police apprehended all three men. Defendant dropped a loaded nine-millimeter semiautomatic handgun just before an officer reached him.
D.J. was in the hospital for six days and required three operations to treat his injuries. J.M.s finger and head were injured. Detective Tommy Thompson testified that J.M.s wounds were pretty significant and were consistent with being inflicted by bird shot expelled from a shotgun shell. The police found an expended shotgun shell casing, an unexpended shotgun shell containing bird shot, and three expended nine-millimeter casings at the scene of the shootings. The nine-millimeter casings had been ejected from the handgun defendant dropped. The expended shotgun shell had been ejected from a shotgun Delacruz was holding when the police caught him. The unexpended shotgun shell had been cycled through the same shotgun. The prosecutions firearm expert testified that when a birdshot shell is fired from a shotgun, hundreds of tiny spherical pellets disperse in a spreading pattern. If any of these pellets strike an object, they will either leave an imprint on it or pass through it.
The shooting occurred within territory claimed by the East Coast Crips gang at a location where East Coast Crips gang members were known to congregate. The alley in which D.J. and J.M. were shot was covered with East Coast Crips gang graffiti. Defendant, Delacruz, and Contreras were members of the Florencia 13 gang, which was engaged in a longstanding war with the East Coast Crips gang. Each of the gangs committed drive-by shootings, assaults, and murders against the other gang. The prosecutions gang expert opined that the Florencia 13 gang members identified the victims as possible rival gang member[s] and sought to eliminate them for the benefit of the Florencia 13 gang. Eliminating them would reduce the ranks of the East Coast Crips gang, enhance the reputation of the Florencia 13 gang as fearless, and intimidate the community so as to permit Florencia 13 to commit crimes without citizens reporting them to the police.
Defendant testified at trial that he was 16 years old and a member of the Florencia 13 gang at the time of the shooting. He spent the day drinking and smoking marijuana at a Florencia 13 gang hangout with other members of his gang, including defendants friends Delacruz and Contreras. Someone handed defendant a gun for protection against rival gang members. Defendant, Delacruz, and Contreras drove in defendants van to get food at a taco truck defendant knew was within the territory claimed by the East Coast Crips gang. Just before they drove away from the gang hangout, defendant noticed that Delacruz had a shotgun. Defendant forgot to take the gun out of his pocket before they left the hangout, so he put it on the floor of the van. When defendant, Delacruz, and Contreras left the taco truck, they saw three African-American men throwing Crips gang signs. Contreras drove past them slowly, made a U-turn, and drove up to the alley. Defendant heard someone in the van say gun and saw the same three guys down the alley. Defendant saw one of the guys reach into his waistband and feared he was retrieving a gun. Defendant grabbed his own gun from the floor of the van, stuck it out the passenger side window, and fired three times without aiming. Contreras sped away immediately. Defendant denied getting out of the van to shoot. Defendant admitted that he knew that the site of the shooting was an East Coast Crips hangout.
The jury convicted defendant of two counts of attempted murder and found that each attempted murder was willful, deliberate, and premeditated. The jury further found that in the commission of each attempted murder, defendant personally and intentionally fired a gun ( 12022.53, subd. (c)); defendant personally and intentionally fired a gun, proximately causing great bodily injury ( 12022.53, subd. (d)); and a principal personally and intentionally fired a gun, proximately causing great bodily injury ( 12022.53, subd. (e)(1)). The jury also found that each offense was committed 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)(c).) The court sentenced defendant to prison for 40 years to life.
DISCUSSION
1. Sufficiency of evidence for section 12022.53, subdivision (d) allegation
Section 12022.53, subdivision (d) provides for an additional and consecutive term of imprisonment in the state prison for 25 years to life for the commission of a felony enumerated under subdivision (a), including attempted murder, if the defendant personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice . . . .
Defendant contends that insufficient evidence supported the jurys finding on the section 12022.53, subdivision (d) allegation with respect to the attempted murder of J.M. because the evidence showed that J.M.s injuries were caused by birdshot expelled from the shotgun fired by Delacruz, and not by the nine-millimeter handgun that defendant fired.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the finding, so that a reasonable jury could find it true beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.)
Imposition of a section 12022.53, subdivision (d) enhancement requires that the defendant personally and intentionally fired a gun in the commission of an offense and that the defendants firing of the gun constituted a proximate cause of the death or great bodily injury suffered by a person other than an accomplice. But the defendant need not personally inflict the great bodily injury or death, just proximately cause it. (People v. Bland (2002) 28 Cal.4th 313, 336338.) And the person injured or killed need not be the victim of the offense to which the enhancement is attached. (People v. Oates (2004) 32 Cal.4th 1048, 10551056.) Thus, where a defendant fired two shots at a group of five people, striking one of them, a section 12022.53, subdivision (d) enhancement was properly imposed for each of five counts of attempted murder. (Oates, at pp. 10551056.)
Ample evidence, including defendants own testimony, established that defendant fired his gun. Given the nature of the single bullet wound D.J. suffered, jurors could reasonably infer that a bullet from defendants gunnot pellets from Delacruzs shotgunstruck D.J. It was undisputed that D.J. suffered an extremely serious wound that required a significant hospital stay and several surgeries to repair. This was sufficient to support the jurys finding on the section 12022.53, subdivision (d) enhancement allegation attached to the charge of attempting to murder J.M.
Defendant acknowledges that the injuries to [D.J.] could have been the basis for [the] section 12022.53(d) true finding as to count 1, but argues that the verdict form indicates that the jury specifically based [its finding] upon the injuries to [J.M.] . . . . The verdict form stated, We further find the allegation that in the commission and attempted commission of the above offense the defendant, Frank Silva, personally and intentionally discharged a firearm, to wit, a handgun, which proximately caused great bodily injury to [J.M.] within the meaning of Penal Code Section 12022.53 (d) to be: true. Although this form specified J.M.s injury, it was phrased in terms of proximate cause, not personal infliction. Given J.M.s testimony that defendant shot at him, the jury may have concluded that defendants firing of his gun was a proximate cause of J.M.s injuries.
Verdict forms should be read in light of the information, the plea entered, the issues submitted to the jury, and the instructions of the court. (People v. Paul (1998) 18 Cal.4th 698, 706707; People v. Jones (1997) 58 Cal.App.4th 693, 710.) [T]echnical defects in a verdict may be disregarded if the jurys intent to convict of a specified offense within the charges is unmistakably clear, and the accuseds substantial rights suffered no prejudice. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The information properly alleged the enhancement allegation with reference to the injuries of both D.J. and J.M. The jury was properly instructed that a true finding on the section 12022.53, subdivision (d) allegation required proof that defendant personally and intentionally fired a gun and the defendants act caused great bodily injury to a person. Substantial evidence supported a true finding on the section 12022.53, subdivision (d) allegation. The jury did not draft the verdict form, but simply received it from the court with the erroneous and unnecessarily restrictive wording. The wording of the verdict form did not detract from the sufficiency of evidence and cannot be deemed to somehow modify the statute or restrict its applicability. Given the evidence and the instruction, the jury would necessarily have made the same finding on the enhancement allegation if the verdict form had been worded without reference to J.M. and in the statutory terms of injury to any person other than an accomplice. We conclude that the reference to J.M.s injury in the verdict form was a technical defect that could be disregarded without prejudice to defendants rights.
2. Sufficiency of evidence for gang allegation
Section 186.22, subdivision (b), provides a sentence enhancement for anyone convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.
Defendant contends that insufficient evidence supported the gang enhancement findings because the evidence did not show that the crimes were committed with the required specific intent to promote, further or assist in any criminal conduct by gang members apart from the current conviction. Defendant bases his contention that the specific intent must pertain to conduct by gang members apart from the current conviction upon Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia).
In Garcia, supra, 395 F.3d 1099, the federal appellate court inexplicably read section 186.22, subdivision (b) as requiring a specific intent to facilitate conduct by gang members other than the charged offense. (Id. at pp. 1101 & 1103.) The statute does not include such a requirement. We reject Garcias interpretation of the statute and decline to follow it, as have other California appellate courts. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.)
Apart from his attempt to modify the elements of the gang enhancement statute, defendant does not contest the sufficiency of the evidence. Although defendants group did not proclaim their gang affiliation at the time of the shootings, the circumstances surrounding the crimes support a finding that defendant specifically intended to promote, further, or assist in criminal conduct by gang members. Defendant was an admitted member of Florencia 13 who was hanging out with other members of his gang. Carrying a gun, he and two other Florencia 13 members drove into territory they knew was claimed by the rival East Coast Crips gang, with which Florencia 13 was at war. One of defendants companions took a shotgun with him on the drive. According to defendant, he saw African-Americans throwing Crips gang signs and the driver reversed course to pursue the men into an alley. This strongly implies that defendant and his companions believed the men were members of a Crips gang and were engaging in a gang-motivated response to the display of gang signs. Defendant and one of his two companions then shot at the African-Americans they were pursuing. Although defendant claimed he fired because he thought one of the victims had a gun, this claim was inconsistent with defendants more brazen conduct as described by the victims: defendant leaned his body out of the van window to shoot and got out of the van to continue shooting at D.J. after D.J. fell to the ground. The jury could find beyond a reasonable doubt that the shooting was gang-motivated and that defendants participation in it along with other members of his gang was intended to promote, further, or assist in criminal conduct by gang members.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
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