P. v. Silva
Filed 12/28/12 P.
v. Silva CA2/3
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 THREE
THE
PEOPLE,
Plaintiff and Respondent,
v.
JESSE
SILVA,
Defendant and Appellant.
B225127
(Los Angeles County
Super. Ct. No. PA062172)
APPEAL
from a judgment of the Superior Court of
County,
Cynthia L. Ulfig, Judge. Affirmed in part, vacated in part, and
remanded with directions.
Sharon
Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant
Jesse Silva appeals from the judgment entered following his convictions by jury
on two counts of first degree murder
(Pen. Code, § 187;
title="">[1] counts 1 & 3),
each with a multiple murder special circumstance (§ 190.2, subd. (a)(3)) and a
gang special circumstance (§ 190.2, subd. (a)(22)), and on count 4 – attempted
willful, deliberate, and premeditated murder (§§ 664,187) with, as to each of
the above offenses, findings appellant personally, and a principal, used a
firearm, intentionally discharged a firearm, and intentionally discharged a
firearm causing great bodily injury or death (former § 12022.53, subds.
(b), (c), (d) & (e)(1)).
Appellant also
appeals from the judgment entered following his convictions by jury on count 2
– discharge of a firearm with gross negligence (§ 246.3, subd. (a)) and count 5
– assault with a firearm (former § 245, subd. (a)(2)) with personal use of a
firearm (former § 12022.5, subd. (a)).
The jury found
each of the above offenses was committed for the benefit of a
subd. (b)(1)), and the trial court found appellant suffered a prior felony
conviction (§ 667, subd. (d)). The trial
court resentenced appellant to prison for life without the possibility of
parole, plus 80 years to life.
name="_ftnref2" title="">[2] After reconsideration of the matter in light
of Miller, supra, 567 U.S. __ [183 L.Ed.2d 407], a decision the trial court
did not have the benefit of, we affirm the judgment in part, vacate the
judgment in part, and remand the matter for resentencing with directions.
1.
a. The
2007 Murder of Albert Molina, and Grossly Negligent Firearm Discharge (Counts 1
& 2).
Viewed
in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established in about 2005, Jovani Leiva met appellant, Michael DeLeon, and
Marco Flores in Branford
Park
in Los Angeles
County. Leiva knew appellant as Cholo (the Spanish
word for gangster), DeLeon as Dreamer, and Flores as Diablo. Leiva knew DeLeon was a member of the Pacoima
Trece (PT) gang and Flores
was a member of the Orcas gang.
During
the late hours of June
15, 2007, Leiva drove his car about two miles from Branford
Park
to a party at a house or apartment building at 12462 Osborne in Los
Angeles County. The car had four passengers: appellant, DeLeon, Flores, and someone named
Lalo. About 10:00 p.m., Leiva
parked around the corner from the party.
The party was being held in a gated area outside the house. While Leiva and Flores were walking to the
party, Leiva saw the handle of a gun protruding from Flores’s
waistband.
The above five persons were joined
by a sixth, and the group approached the gate.
However, prior to entry, guests were required to submit to a patdown
weapons search conducted by Albert Molina (a decedent) and David Delgado. Appellant and three companions refused to be
searched and became boisterous. They
yelled “Fuck Vineland†and “Veggies.â€
Veggies was a derogatory term for the Vineland Boys gang. DeLeon yelled “Paca Trece†and Flores yelled
“Orcas.â€
Appellant
had one hand inside his shirt near his waist and his other hand holding a
40-ounce beer bottle. He was aggressive
and told Delgado, “We are going to get in.â€
Delgado replied, “no, you are not.â€
Appellant threw the bottle at the gate, breaking the bottle. Appellant punched one of the people
conducting the search and the gate was closed.
Leiva
saw Flores remove
a black revolver from his waistband and hand it to DeLeon. Leiva saw DeLeon fire the revolver three to
five times in the air. Delgado testified
it was appellant who fired the gun in the air, and appellant fired the gun once
or twice. According to Leiva, appellant
grabbed the gun from DeLeon and fired it three to five times towards the gate
and crowd. When the shooting occurred,
appellant, DeLeon, and Flores were saying their gang names. Before and during the shooting, the three
were calling out gang names, including Pacoima.
A bullet struck Molina in the chest, killing him.
After
the shootings, Leiva, appellant, DeLeon, Flores, Lalo, and someone named Dan
ran to and entered Leiva’s car. Leiva
drove, Flores was in
the front passenger seat, and the rest were in the backseat. Leiva was driving them to Branford
Park
while they were trying to empty the gun.
Flores took
bullets from the barrel and threw them out the front passenger window. Leiva dropped off everyone at the park. At 1:10
a.m., on June 16, 2007,
police arrived at the shooting scene. No
bullet casings were present, a fact consistent with use of a revolver.
Los
Angeles Police Officer Michael Yoro, a gang expert, testified PT was a criminal
street gang. Paca was a shortened
version of Pacoima. The addresses of 12462
Osborne and 8737 Roslyndale were in territory claimed by PT. PT members congregated at Branford
Park. The Vineland Boys gang and Sanfer gang were
rival gangs that PT hated the most.
Appellant’s driver’s license reflected he had drawn a line through the
letter V in his name. This indicated
appellant perceived the Vineland Boys gang as his enemy. DeLeon and Flores were PT members.
Yoro
opined it was not uncommon for members of the Pacoima Cayuga Street Locos
(PCSL) gang to be friendly with PT members.
If a PCSL member kept company with a PT member, it would not be unusual
for the PCSL member to claim membership in PT before committing crimes. Disrespect towards a gang or gang member
would not go unanswered, and the result could range from assault to
homicide. The prosecutor posed a
hypothetical question which essentially was based on evidence as to the killing
of Molina and, in response, Yoro opined to the effect the Molina killing was
committed for the benefit of, at the direction of, or in association with,
PT. The killing was retaliation for
persons preventing “members of our gang in which is a [PT] gang†(
neighborhood and territory and daring to search them knowing they could be
armed.
b. The
2008 Murder of Johnny Lopez, Attempted Murder of Marvin Maldonado, and Assault
with a Firearm on Maldonado (Counts 3 – 5).
On June
8, 2008, before 1:30 p.m., Johnny Lopez (a decedent) and Marvin Maldonado were
drinking near Branford Park. They
finished drinking about 12:50 p.m. About
1:30 p.m., they encountered appellant standing in the driveway of his home at
8737 Roslyndale in Arleta. Lopez
approached appellant and asked where he was from. Appellant replied he was from PT. Lopez asked, “ ‘So that’s what’s
up?’ †Appellant indicated he
recently had been released from juvenile hall and was having difficulty
adjusting to society. After talking with
appellant for no more than five minutes, Lopez and Maldonado left. Lopez returned to appellant and told him that
he never asked Lopez where Lopez was from.
Lopez and Maldonado again walked away.
After
walking about 200 feet from appellant’s house, Maldonado saw appellant in the
street riding a bright-colored bicycle towards them. The bicycle was probably blue. It was depicted in a photograph, People’s
exhibit No. 3. Lopez entered the street
and approached appellant, who had stopped in the street. Maldonado testified Lopez said to appellant
something to the effect Lopez “had spoken with his brother and that everything
was cool.â€
During
direct examination of Maldonado, the prosecutor began a question by commenting
Maldonado had testified that after the defendant was on his bicycle, Lopez told
“the defendant [appellant] . . . that he just talked to his brother.†Maldonado interrupted the prosecutor,
stating, “I knew it was him.†The
prosecutor asked if Maldonado knew “it was the same defendant†and Maldonado
replied yes. Maldonado knew “it wasn’t
some other guy. . . .â€
Appellant
asked Lopez where Lopez was from, and Lopez replied San Fer. Maldonado testified appellant then removed a
silver semiautomatic handgun with a black grip from his waist, brandished the
gun, and shot Lopez about six times.
Lopez in fact sustained four gunshot wounds and was mortally
wounded. Appellant turned the gun toward
Maldonado and brandished it towards him.
Maldonado fled. Appellant shot
him in the back. During the shootings,
appellant was wearing a white T-shirt, blue jeans, and a black glove on his
left hand, the hand which held the gun.
After the shootings, appellant rode away on the bicycle.
About
1:30 p.m., on June 8, 2008, Heldrych Castillo was in his bedroom when he heard
five or six gunshots. About a minute
later, he looked out his window and saw a male juvenile quickly pedaling a
bright blue BMX bicycle on Truesdale towards Canterbury. The juvenile was wearing a black glove on his
right hand, which was holding a small silver handgun. Castillo went outside and saw a gunshot
victim lying in the street. Castillo
called 911 and described the shooter as a bald Hispanic wearing a white shirt
and riding a blue bicycle. Jesus
Ayungua, appellant’s cousin, told a detective that on an occasion prior to June
8, 2008, Ayungua had seen a blue bicycle at appellant’s house. The bicycle was the one, or looked like the
one, depicted in People’s exhibit No. 3.
Police recovered seven .380-caliber bullet casings from the shooting
scene. The location of the casings was
consistent with the use of a firearm which ejected casings near Lopez.
On June 8, 2008, Joyce Salgado,
appellant’s then-girlfriend, spoke with him while he was in police custody, and
police recorded the conversation. The
following occurred: “[Appellant]: You know where I hide the bullets
(Inaudible). [¶] [Salgado]:
Uh-huh. [¶] [Appellant]:
Why you know where [inaudible] when you go home, huh? (Inaudible Whispering) try to [inaudible] as
soon as possible. Put the . . . bullets
in the bag . . . . [¶] [Salgado]:
Uh-huh. Put gun clips . . .
. [¶]
[Appellant]: And try to get it
out . . . put gloves. And then that way
I don’t get caught. Put gloves, so you
don’t get shit on your hands, and clean the gun, please. Like that if they put it . . . back in the
wall (Inaudible), and they just . . . try to throw it somewhere the [
at my mom’s place. If you could do
it. If not, then just leave it right
there where it’s at. Okay? [¶]
[Salgado]: Uh-huh.â€
A detective testified that, during
the conversation, appellant said “behind the wall in his room†and “behind the
wall behind the shelf.†Appellant said
he was going to get locked up “for what happened,†“[f]rom that shooting,†and
“they’re trying to blame it on me†“[b]ecause, supposedly, I look like
Michael.â€
On June 9, 2008, police searched
appellant’s house. During the search,
Ayungua told a detective that on June 6, 2008, appellant showed Ayungua a gun
and the gun was hidden within the walls.
The bicycle depicted in People’s exhibit No. 3, a white T-shirt, and
blue jeans were found behind a brick wall in the backyard of appellant’s house.
On July 18, 2008, Los Angeles Police
Detective Heather Gahry listened to the tape of the conversation between
appellant and Salgado. As a result,
Gahry searched appellant’s room, which was a renovated garage. Gahry found a black-knit glove in an opening
in a wall in the room. The glove had the
white letters P, C, S, and L written in sequence on the glove’s four fingers,
respectively. The letters stood for
Pacoima Cayuga Street Locos.
Los
Angeles Police Officer Fernando Avila, a PCSL gang expert, testified PCSL was a
criminal street gang. PCSL derived from
PT, and the two gangs were allies.
Appellant was a PCSL member and bore its gang’s tattoos.
gang’s hierarchy by “putting in work,†i.e., committing certain crimes which
benefitted the gang. When PCSL members
murdered a rival gang member, this demonstrated loyalty to PCSL.
The
prosecutor posed a hypothetical question based on evidence of the shooting of
Molina and the shootings of Lopez and Maldonado. In response, Avila opined the only reason the
June 8, 2008, murder victim was shot was he said San Fer, the killing was
committed for the benefit of PCSL, and the fact the shooter associated with PT
would let all other gangs know “guys from Pacoima are going to put in work,
especially . . . murder.†The shooting
of the decedent’s friend who merely had accompanied someone who had said San
Fer would benefit the PCSL and PT gangs.
2. Defense
Evidence.
During
appellant’s cross-examination of various People’s witnesses, appellant marked
for identification, inter alia, defense exhibits A, D, and E. Defense exhibit A was a photograph depicting
DeLeon. Defense exhibit D was a
“six-pack.†Defense exhibit E was an
admonition form.
After
the People’s presentation of evidence, and outside the presence of the jury,
appellant indicated there would be no “defense witnesses.†Later, in the presence of the jury, the
People moved that their exhibits be admitted into evidence. The court admitted them into evidence, then
asked appellant’s counsel if there was “any defense.†Appellant’s counsel replied, “No, your Honor. We rest.â€
However, the court then asked if appellant’s counsel wanted admitted
into evidence defense exhibits A, D, and E.
Appellant’s counsel replied, “I so move†and those three defense
exhibits were admitted into evidence.
The court later advised the jury the parties had rested.
We
will present additional facts below where appropriate.
Appellant
claims: (1) the trial court erred by
denying his severance motion, (2) the court erroneously denied his
experts’ testimony was inadmissible, (4) the court erroneously refused to
instruct on voluntary intoxication as to count 1, (5) there was insufficient
evidence supporting the gang special circumstance finding as to count 1, (6)
the court improperly limited appellant’s cross-examination of Yoro,
(7) CALCRIM No. 736 is constitutionally defective, (8) cumulative
prejudicial error occurred, (9) the court improperly denied appellant’s motion
for disclosure of juror identification information, (10) appellant’s
sentence constituted cruel and unusual
punishment under the Eighth Amendment, (11) appellant’s sentence
constituted cruel or unusual punishment under the state Constitution,
(12) imposition of a Three Strikes law sentence as to count 4 was
improper, and (13) his section 1202.45 parole revocation fine must be stricken.
1.
Severance Motion.
a. Pertinent
Facts.
Appellant
filed a pretrial motion to sever counts 1 and 2 (the 2007 offenses) from counts
3 through 5 (the 2008 offenses), and the People filed an opposition.
denied it on the following grounds. The
murders were of the same class of crimes.
In both sets of crimes, appellant was identified as the shooter and the
victims were shot multiple times. Both
sets of offenses were gang-related and involved the same codefendant. Evidence was cross-admissible. Expert testimony on firearms, gunshot
residue, and gangs was cross-admissible.
One murder would not inflame the jury with respect to another murder
because the victims of both murders were young males.
Moreover,
the court indicated neither set of offenses was substantially weaker than the
other. In this regard, as to the 2007
offenses, appellant was identified by an accomplice and an eyewitness, and
appellant was inculpated by his own admission.
As to the 2008 offenses, appellant was identified as the shooter by an
eyewitness who had an opportunity to observe appellant in broad daylight
without threat of bodily harm when the eyewitness initially conversed with the
victim and appellant. The eyewitness and
victim were not alarmed when the defendant later approached them, so there was
no question appellant was the shooter.
Joinder promoted judicial economy.
Section 954.1 expressly provided cross-admissibility was not required
before jointly charged offenses could be jointly tried.
Reiterating
evidence would be cross-admissible, the court stated, “[Appellant’s] own
statement, as well as them being gang-related incidents, would provide a basis
for [Evidence Code section] 1101(b) evidence to be admitted into each trial
anyway.â€
b. Analysis.
Appellant claims
the trial court erroneously denied his severance motion. We disagree.
The law prefers consolidation of charges. (People
v. Manriquez (2005) 37 Cal.4th 547, 574.) When the statutory requirements for joinder
are met, a defendant must clearly show prejudice to establish an abuse of
discretion when a trial court fails to sever offenses. The pertinent factors to be considered are
whether (1) the evidence of the crimes would be cross-admissible in separate
trials, (2) some of the charges are unusually likely to inflame the jury
against the defendant, (3) a weak case has been joined with a strong case,
or with another weak case so that the total evidence on the joined charges may
alter the outcome of some or all of the charged offenses, and (4) any one
of the charges is a death penalty offense, or whether joinder converts the
matter into a capital case.
A determination
evidence is cross-admissible ordinarily dispels any inference of
prejudice. (People v. Marshall (1997) 15 Cal.4th 1, 27-28 (
severance motion is based on the record as it existed at the time of the
ruling. (People v. McKinnon (2011) 52 Cal.4th 610, 630.) Finally, even if a trial court has not abused
its discretion in denying a pretrial severance motion, the judgment must be
reversed if the defendant shows joinder resulted in gross unfairness amounting
to a denial of due process. (
149 Cal.App.4th 674, 698.)
In the present
case, appellant concedes the statutory requirements for joinder were met. Appellant therefore has the burden of
demonstrating prejudice. There was ample
evidence each set of 2007 and 2008 offenses included a gang-related homicide in
which appellant shot a young person(s), and shot at each decedent multiple
times. As the court suggested in its
comments concerning gang-related incidents and Evidence Code section 1101,
subdivision (b), this gang-related evidence was mutually cross-admissible on
the issues of appellant’s gang-related motive to commit said offenses and
intent to kill, and the evidence of the 2007 offenses was cross-admissible to
prove premeditation and deliberation as to the 2008 murder. The above indicated cross-admissibility of
the evidence dispels any inference of prejudice.
Moreover, as
indicated by the trial court, the charges were similar and, as appellant
concedes, none were unusually likely to inflame the jury against
appellant. None involved a weak
case. None was a death penalty offense,
nor did joinder convert this case into a capital one. In sum, none of the Marshall factors compels a conclusion the denial of appellant’s severance
motion was an abuse of discretion. Nor
does the record of the events after the denial demonstrate joinder resulted in
gross unfairness amounting to a denial of appellant’s right to due process. The trial court did not err, constitutionally
or otherwise, by denying appellant’s severance motion.
2.
Wheeler Motion.
a. Pertinent
Facts.
Voir dire of prospective jurors
2937, 7351, and 4296 were married women, except for Juror 4296, who was a
single woman. Only Juror 2575 had jury
experience. All indicated they would be
impartial jurors.
The prosecutor exercised peremptory
challenges as to the above four jurors.
The parties concede the prosecutor challenged a total of 10 jurors. After the prosecutor challenged Juror 4296,
appellant brought a Wheeler
prosecutor challenged the above four jurors because they were Hispanic
women. The court replied, “Okay. People.â€
The prosecutor subsequently
indicated as follows. When the oath was
given to jurors, Juror 2575 did not say “I do.â€
The prosecutor noticed this because Juror 2575 had been giving the
prosecutor “hard looks from the very beginning.†The prosecutor commented, “if the court
recalls, I asked her if she was in any way mad at me or if I had done
anything. Maybe it was just her way of
thinking about things. She said no, but
she continued the looks.†During voir
dire of a fireman, Juror 2575 rolled her eyes at the fireman at least three
times. The prosecutor commented the
prosecutor wrote “all of this down as I caught it going because I kept an eye
on her because I couldn’t, at first, understand why I was getting such dirty
looks.†The prosecutor did not believe
Juror 2575 was a Hispanic female, and Juror 2575 may have been an
African-American.
Juror 2937 initially had said she
was from Pacoima and knew of no gangs there, but when the prosecutor
individually questioned her, Juror 2937 changed and indicated she was not
involved in gangs. Her brother or
brother-in-law was incarcerated. The
trial court stated Juror 2937 was very defensive when the prosecutor questioned
her.
As to
Juror 7351, the following occurred:
“[The Prosecutor]: . . . I believe [Juror 7351] was the juror that
explained about being jumped by gang members when she was in high school, and
she seemed to say that she may have just gone to the wrong place to eat, but we
talked to her about being fair because she had been jumped. She said,
well, I have friends that are gang members, too. [¶] I tried to
question her about her friends, and she said her sister had dated a gang
member. When I asked her how she felt about that, she says well, it was
love. [¶] And just the association and the friendships that are
gathered from that, I didn’t want someone with that close of a relationship to
a gang members [sic], either past or
present, to be in the present. [
Had nothing to do with her racial status. [¶] The
Court: Also, she didn’t bring that up when she was initially questioned. [¶]
[The Prosecutor]: Yes, she did
not. She brought it up only after she
kind of said it in an answer to [defense counsel’s] question, but initially she
did not.â€
Juror
4296 was young and inexperienced. She
left school in the ninth grade, she looked very young, and, apart from
babysitting, she had no employment history.
Juror 4296 lacked knowledge concerning gangs despite the fact she had
lived in Van Nuys.
The
prosecutor indicated a Hispanic woman was a jury member. The court agreed. The court denied appellant’s
b. Analysis.
Appellant claims
the trial court erroneously denied his Wheeler
motion. We disagree. In People
v. Wheeler, supra, 22 Cal.3d 258,
our Supreme Court stated, “[w]e conclude that the use of peremptory challenges
to remove prospective jurors on the sole ground of group bias violates the
right to trial by a jury drawn from a representative cross-section of the
community under article I, section 16, of the California Constitution.†(Wheeler,
at pp. 276-277.)
equal protection clause. (
175, 226.)
When a defendant asserts at trial that the prosecution’s use
of peremptory strikes violates the federal Constitution, the defendant must
make out a prima facie case by showing the totality of the relevant facts gives
rise to an inference of discriminatory purpose.
The burden then shifts to the State to explain adequately the racial
exclusion by offering permissible race-neutral justifications for the
strikes. Thereafter, if a race-neutral
explanation is tendered, the trial court must decide whether the opponent of
the strike has proved purposeful racial discrimination. The identical three-step procedure applies
when the challenge is brought under the California Constitution. (People
v. Cowan (2010) 50 Cal.4th 401, 447.)
The same principles apply to group bias based on gender. Appellant concedes Hispanic women are a
cognizable group for purposes of Wheeler
analysis. (People v. Garceau (1993) 6 Cal.4th 140, 171;
87 Cal.App.4th 781, 788.)
Fairly read, the record reflects the court found appellant
made a prima facie showing the prosecutor had exercised challenges as to the
four above discussed jurors on the ground they were Hispanic women. At the court’s suggestion, the prosecutor
proffered justifications which were allegedly neutral, and the court then found
appellant had not proved purposeful discrimination based on group bias.
Appellant asserts
the trial court’s finding was erroneous.
However, our review of a trial court’s denial of a Wheeler motion is deferential.
We examine whether substantial evidence supports the trial court’s
conclusions. We review with great
restraint a trial court’s determination regarding the sufficiency of a party’s
proffered justifications, and we “give great deference to the trial court’s
ability to distinguish bona fide reasons from sham excuses. [Citation.]
So long as the trial court makes a sincere and reasoned effort to
evaluate the [alleged] nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.†(People
v. Lenix (2008) 44 Cal.4th 602, 614.)
With these principles in mind, we review below the trial court’s
conclusions.
The prosecutor
indicated she challenged Juror 2575 because Juror 2575 failed to say “I doâ€
individually when the oath required by Code of Civil Procedure section 232,
subdivision (a) was administered. That
failure provided the prosecutor a ground to suspect Juror 2575 may not have
been able to perform her duties as a juror in accordance with the required oath
and the court’s instructions. (Cf.
at p. 643.) This provided race- and
gender-neutral bases to challenge Juror 2575.
The prosecutor also indicated Juror 2575 gave the prosecutor “hard
looks†and Juror 2575 repeatedly rolled her eyes during the voir dire of a
fireman. Bare looks from a juror that
may alienate a party can provide a neutral basis for a challenge. (People
v. Turner (1994) 8 Cal.4th 137, 171.)
“[P]eremptory challenges may turn upon perceptions not available to
someone reading the cold record--the tone of voice, facial expression, body
language, etc., of the prospective juror.â€
(People v. Lenix, supra,
44 Cal.4th at p. 634.)
The prosecutor
challenged Juror 2937 because Juror 2937 initially denied knowledge there were
gangs in Pacoima, but later acknowledged she knew they existed there. Conflicts in a juror’s statements during voir
dire can provide a neutral basis for a challenge. (Cf. People
v. Jones (1998) 17 Cal.4th 279, 293-294.)
The prosecutor also challenged Juror 2937 because her brother was
incarcerated. A prosecutor reasonably
may conclude a “close relative’s adversary contact with the
prospective juror unsympathetic to the prosecution.†(People
v. Farnam (2002) 28 Cal.4th 107, 138.)
The prosecutor
challenged Juror 7351 on the grounds, in part, her sister had dated a gang
member and Juror 7351 said, inter alia, “it was love.†“The ‘law recognizes that a peremptory
challenge may be based on a broad spectrum of evidence suggestive of juror
partiality. The evidence may range from
the obviously serious to the apparently trivial, from the virtually certain to
the highly speculative.’ †(
even arbitrary exclusion is permissible, so long as the reasons are not based
on impermissible group bias. (
28 Cal.4th 1083, 1122.) The
prosecutor reasonably might have suspected Juror 7351 could have had a
sympathetic attitude toward a gang member(s).
A degree of sympathy by a juror towards gang members can provide a
neutral reason for a challenge. (
197 Cal.App.4th 801, 811.)
The prosecutor
challenged Juror 4296 on the grounds she was young and inexperienced, she had
no employment history other than babysitting, and she lacked knowledge
concerning gangs even though she had lived in Van Nuys. Her youth and inexperience provided neutral
reasons to challenge her. (Cf.
29 Cal.App.4th 1313, 1328.)
Similarly, unemployment is a proper criterion for exercising a challenge
because unemployment suggests a person has little stake in the community. (Cf. Stubbs
v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1106; United States v. Gibson (8th Cir. 1997) 105 F.3d 1229, 1232, fn.
2.)
In the present
case, the record demonstrates the trial court made a sincere and reasoned
effort to evaluate the prosecutor’s proffered justifications. The trial court’s conclusion the prosecutor
did not make challenges based on group bias towards Hispanic women was
supported by substantial evidence. The trial court did not err by denying
appellant’s Wheeler motion.
3.
Appellant claims the gang experts’ testimony was elicited
through the People’s impermissible hypothetical questions calling for the
experts’ opinion on whether appellant committed the offenses at issue for the
benefit of, at the direction of, or in association with a criminal street gang
for purposes of former section 186.22, subdivision (b). Appellant argues that, as a result, his
conviction on count 1, and the true findings as to the former section 186.22,
subdivision (b) enhancement allegations and the section 190.2, subdivision
(a)(22) special circumstance allegations, must be reversed. Appellant concedes that, at the time he filed
his opening brief, the issue he raises was pending review in our Supreme Court
in People v. Vang (2010) 185
Cal.App.4th 309, review granted September 15, 2010 (S184212).
Appellant failed to object to the experts’ testimony
on the grounds he now asserts; therefore, he waived the issues. (Evid. Code, § 353, subd. (a)). Even if the issues were not waived, they lack
merit. In People v. Vang (2011) 52 Cal.4th 1038 (Vang), a gang expert, in response to hypothetical questions posed
by a prosecutor, testified an assault would benefit a named gang and was
committed in association with the gang and at the direction of the gang’s
members. The expert also testified the
attack was gang-motivated.
hypothetical questions, although based on evidence-specific assumptions, were
properly based on evidence at trial and the expert’s opinion testimony in
response was admissible and not rendered inadmissible by the fact, if true,
that the testimony pertained to an ultimate issue(s) to be decided by the trier
of fact. (Id. at pp. 1042-1049.)
In the present
case, the prosecutor essentially posed hypothetical questions which asked the
experts to assume various facts based on the evidence. The prosecutor’s questions were proper and,
in response, the experts properly gave their respective opinions. The expert opinion testimony was admissible
(cf. Vang, supra, 52 Cal.4th at
pp. 1042-1049), and no violation of appellant’s Fifth, Sixth, and/or
Fourteenth Amendment rights occurred.
Although
appellant appears to assume it would have been error for the experts to testify
directly about appellant himself, Vang
expressly left open this question. (
since neither expert in this case testified directly about appellant or
referred to him by name. The experts’
use of the passive voice avoided express references to appellant. Accordingly, appellant asserts Yoro testified
the crime “was committed†for the benefit, etc., of a gang, and Avila testified
“both shootings were done†to benefit specified gangs. To the extent appellant claims he received
ineffective assistance of counsel by reason of his trial counsel’s failure to
object to the experts’ testimony, our analysis compels the conclusion no such
ineffective assistance occurred.
4.
on Voluntary Intoxication (Count 1).
During
cross-examination, Delgado testified that when appellant threw the bottle, it
hit the gate “in front of us†and “like splashed all over us.†Appellant drew the gun about 30 seconds or a
minute later. Appellant later during
cross-examination asked Delgado if appellant appeared drunk to Delgado. Delgado replied, “I don’t know. He was holding a beer.†Appellant asked if Delgado ever said
appellant was drunk “to the police or anything like that . . . .†Delgado replied, “I probably said it because
he had a beer in his hand, yes.†Delgado
added, “. . . he didn’t seem like he was drunk out of his mind and didn’t
know what was going on because he was speaking . . . at me in plain English; no
jibberish, no slurring at all.â€
During
discussions concerning jury instructions, appellant’s counsel requested an
instruction on voluntary manslaughter as to count 1 on the ground “the
defendant, due to intoxication, did not form the specific intent to kill.†The prosecutor denied voluntary manslaughter
could be based on intoxication and suggested another instruction might apply.
CALCRIM No. 625 and he requested that the court give it.
The proposed
modified CALCRIM No. 625, as recited by the court, read: “. . . you may consider evidence, if any, of
the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in
deciding whether the defendant acted with an intent to kill or the defendant
acted with deliberation and premeditation.
[¶] A person is voluntarily intoxicated
if he or she becomes intoxicated by willingly using any intoxicating drug,
drink, or other substance that could produce an intoxicating effect, or
willingly assuming the risk of that effect.
[¶] You may not consider evidence
of voluntary intoxication for any other purpose.†Appellant’s counsel indicated the instruction
pertained to the issue that appellant “could not form the malice.†The court refused to give the proposed
modified CALCRIM No. 625.
Appellant claims
the trial court thereby erred, requiring reversal of his conviction on count
1. We disagree. We have recited the pertinent facts. There was no substantial evidence appellant
was intoxicated, voluntarily or otherwise.
Even if there was substantial evidence he was voluntarily intoxicated,
there was no substantial evidence appellant became intoxicated to the point he
failed to formulate the mental states at issue, i.e., intent to kill, and
premeditation and deliberation. (Cf.
13 Cal.4th 799, 848; People v. Ivans
(1992) 2 Cal.App.4th 1654, 1661-1662.)
A trial court is under no duty to give an instruction unsupported by
substantial evidence. (Cf.
935, 944.)
5.
Special Circumstance Finding.
Appellant
claims there is insufficient evidence supporting the gang special circumstance
finding pertaining to count 1 (the Molina murder). Appellant argues in particular there was
insufficient evidence (1) appellant “knew that members of [PT] engaged in a
pattern of criminal activity†and (2) appellant was a member of, or active
participant in, PT. We reject his claim.
Section 190.2,
subdivision (a)(22) authorizes a defendant to be sentenced to death, or
imprisonment for life without the possibility of parole, if “[t]he defendant
intentionally killed the victim while the defendant was an active participant
in a criminal street gang, as defined in subdivision (f) of Section 186.22, and
the murder was carried out to further the activities of the criminal street
gang.†Although section 190.2,
subdivision (a)(22) does not expressly require that the defendant have
“knowledge of the gang’s criminal purposes†(People v. Carr (2010) 190 Cal.App.4th 475, 487 (
requirement upon subdivision (a)(22). (
The subdivision does not require that the defendant be an actual member
of the gang.
title="">[11]
To the extent
appellant argues there was insufficient evidence he “knew that members of [PT]
engaged in a pattern of criminal activity,†we reject the argument. Section 190.2, subdivision (a)(22) required
appellant to have knowledge of the gang’s criminal purposes, but did not
require appellant to have knowledge of the particular crimes committed by gang
members (see fn. 11, ante). We have set forth in the Factual Summary the
pertinent evidence, including appellant’s conduct during the 2007 Molina murder
(e.g., his shouting Pacoima) and appellant’s membership in PCSL, the expert
testimony concerning the relationship between PCSL and PT (including the facts
PCSL derived from PT, and the two gangs were allies), and Yoro’s expert opinion
testimony the killing of Molina was committed for the benefit of, at the
direction of, or in association with, PT.
Such evidence and testimony are typical proofs of gang allegations. (Carr,
supra, 190 Cal.App.4th at pp.
488-489, fn. 14.) We conclude there was
sufficient evidence appellant had knowledge of the PT gang’s criminal purposes
as required by the gang special circumstance pertaining to count 1. (Id.
at pp. 488-490.)
To the extent
appellant argues there was insufficient evidence he was a member of PT, we
reject the argument. Section 190.2,
subdivision (a)(22) does not expressly require that the defendant be a member
in a gang. Except as previously
discussed, there is no dispute CALCRIM No. 736 given in this case correctly
states the law. That instruction states,
“The People do not have to prove that the defendant . . . was an actual member
of the gang.†To the extent appellant
argues there was insufficient evidence appellant was an active participant in
PT, we reject the argument based on the previously discussed evidence and
expert testimony.
6.
Examination of Yoro Was Proper.
A
former section 186.22, subdivision (b)(1) gang enhancement may be imposed only
if subdivision (e) predicate offenses are proven. In the present case, as proof of one of the
predicate offenses, the prosecutor presented evidence of a prior conviction
suffered by Robert Carrillo, a PT gang member with the moniker Sweet Pea.
During
cross-examination, appellant asked Yoro whether Yoro knew of any documentation
that appellant ever knew “Robert ‘Sweet Pea’ Carrillo.†The prosecutor objected on relevance grounds,
repeatedly indicating the former section 186.22, subdivision (b)(1) gang
enhancement did not require that appellant know predicate offenders. The prosecutor also posed a foundation
objection concerning Yoro’s “knowledge of [appellant].†The court sustained both objections.
At
sidebar, appellant argued he was allegedly a PCSL member but there was no
evidence he was a PT member and, since the prosecutor had offered evidence of
predicate offenses, appellant was entitled to cross-examine Yoro on the issues
of whether Yoro knew of documentation that appellant knew a predicate offender,
and whether Yoro knew appellant knew a predicate offender.
The
court indicated appellant did not have to know the predicate offenders or be a
member of the criminal street gang “for the purpose of that allegation.†Appellant’s counsel commented, “even though
[the People] are not required to show that . . . [appellant] knew him, . . . I
think it’s relevant to show that he didn’t know them.†The court again sustained the People’s
“objection.â€
During the above
discussions, appellant never cross-examined, or indicated he wanted to
cross-examine, Yoro concerning whether appellant knew about the prior
convictions suffered by the predicate offenders, nor did the parties or court ever
expressly refer to the section 190.2, subdivision (a)(22) gang special
circumstance allegations.
Appellant claims
the trial court improperly limited his cross-examination of Yoro. In particular, appellant argues the trial
court prevented him from cross-examining Yoro “on the issue of whether
appellant knew any of the [PT] members whose convictions were used to establish
the pattern of gang activity, or knew about their convictions . . . .†Appellant maintains these matters were
relevant to prove he lacked knowledge “that members of the [PT] gang engage in
or have engaged in a pattern of criminal gang activity†for purposes of CALCRIM
No. 736 and the section 190.2, subdivision (a)(22) gang special circumstance
allegations, and the limitation on Yoro’s testimony violated appellant’s rights
to confrontation.
However, except to the extent appellant challenges the exclusion of
testimony from Yoro concerning appellant’s lack of knowledge of the predicate
issues by failing to elicit testimony from Yoro or failing to raise the issue below. (Cf. People
v. Morrison (2004) 34 Cal.4th 698, 711-712; Evid. Code, § 354.)
Moreover, even if
none of the above issues were waived, there is no need to reach them. Even if we assume the court prevented Yoro
from testifying on the issues of whether appellant knew PT members whose
convictions were predicate convictions, or whether appellant knew about those
convictions, Yoro could not testify as to what appellant knew. Appellant does not challenge the trial
court’s ruling sustaining the prosecutor’s foundation (lack of personal
knowledge) objection. The application of
ordinary rules of evidence, as here, did not violate appellant’s constitutional
rights, including his rights to confrontation.
(Cf. People v. Boyette (2002)
29 Cal.4th 381, 427-428.) Moreover,
there was overwhelming evidence appellant knew PT’s criminal purposes. (See Carr,
supra, 190 Cal.App.4th at p.
487.) No prejudicial error
occurred. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836;
386 U.S. 18, 24 [17 L.Ed.2d 705].)
7.
Defective.
The trial
court, using CALCRIM No. 736 (see fn. 11, ante),
instructed on the gang special circumstance allegations. Appellant claims the instruction is deficient
because it fails to tell the jury that “to find the gang special circumstance
true it must determine that appellant was an active participant of the gang
whose activities were furthered by the murder, in this case, [PT].†We conclude otherwise.
Generally,
a party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language. (Cf. People
v. Palmer (2005) 133 Cal.App.4th 1141, 1156 (Palmer).) CALCRIM No. 736
correctly stated the law concerning the gang special circumstance allegations
and was responsive to the evidence.
Appellant waived his instructional issue by failing to request
appropriate clarifying or amplifying language.
(Cf. Palmer, at p. 1156.)
Even
if the issue was not waived, appellant’s claim lacks merit. As mentioned, section 190.2, subdivision
(a)(22) authorizes a defendant to be sentenced to death, or imprisonment for
life without the possibility of parole, if “[t]he defendant intentionally
killed the victim while the defendant was an active participant in a criminal
street gang, as defined in subdivision (f) of Section 186.22, and the murder
was carried out to further the activities of the criminal street gang.†CALCRIM No. 736, in relevant part,
tracks this statutory language. CALCRIM
No. 736 states the People are required to prove, inter alia, “2. . . . the defendant was an active participant
in a criminal street gang†and “4. The murder was carried out to
further the activities of the criminal street gang.â€
In
the defendant claimed the trial court was obligated to instruct sua sponte on
the meaning of language contained in the section 190.2, subdivision (a)(17)
felony-murder special circumstance.
is clear. The language of a statute
defining a crime or defense is generally an appropriate and desirable basis for
an instruction, and is ordinarily sufficient when the defendant fails to
request amplification. If the jury would
have no difficulty in understanding the statute without guidance, the court
need do no more than instruct in statutory language. [Citation.]
[¶] The portion of the
instruction at issue in this case was drawn verbatim from Penal Code section
190.2, subdivision (a)(17). Defendant,
however, failed to request further amplification. Finally, a jury would have no difficulty in
understanding the statutory language without guidance. Accordingly, the court was not obligated to
explicate the clauses in question.†(
rejection of appellant’s claim. CALCRIM
No. 736, tracking the statutory language, adequately instructs the jury that in
order to prove the gang special circumstance allegations, the People had to
prove the defendant was an active participant in a criminal street gang, and
the murder was carried out to further the activities of that same
language contains the phrase “to further the activities,†a phrase referring to
the defendant’s mental state. Appellant
would change this to refer to whether “activities were furthered,†a phrase
referring to whether activities were objectively furthered. Appellant cites no authority holding his
proposed changes are required.
Appellant’s claim fails. We also
reject appellant’s claim cumulative prejudicial error occurred.
8.
Motion for Disclosure of Juror Identification Information.
a. Pertinent
Facts.
After the
verdicts but prior to the sentencing hearing, appellant, on March 24, 2010,
filed a motion to release juror information.
The motion was supported by a single declaration from Attorney Randy
Tennen. The declaration indicated as
follows. Attorney James Sussman was
appellant’s trial counsel. Tennen
previously had been “appointed pro bono†to assist Sussman. On March 2, 2010, following the jury
verdicts, Tennen stood outside the jury room to speak to jurors willing to
discuss their verdict. Sussman soon joined
them when Sussman finished talking to appellant.
The declaration
then states, in relevant part, “4. We
spoke with about five or six jurors who served on the panel, at least two of
whom participated in the verdict. I
spoke in particular with a juror who I believe was Juror Number 11 . . . and
Attorney Sussman spoke to alternate jurors.
[¶] 5. Juror Number 11 and another juror told me
that while they were in the jury room ‘We said “What’s the defense? There wasn’t any.†’ [¶]
6. I heard one juror ask Attorney Sussman why
[appellant] did not take the stand.â€
The memorandum of
points and authorities argued Tennen’s declaration showed the jury “may†have
failed to follow the court’s instructions “in that [the jury] allowed into
their deliberations the fact that the defense presented no evidence and that
the defendant did not testify (CALCRIM 355).â€
At the May 14, 2010, hearing on the motion, appellant’s counsel
commented, inter alia, a prima facie showing had been made that the court
should release the juror information so a determination could be made as to
“whether or not there was some jury misconduct.â€
After a
discussion of pertinent law, the court indicated, inter alia, as follows. The present case was alleged to be a
gang-related case. The jury found the
killings were motivated by gang membership.
Gang slogans were yelled at the “time of the murder.†The juror statements at issue provided “no
evidence that the jurors held it against the defendant or even took the lack of
defense into consideration in reaching their verdict.†None of the jurors’ statements constituted misconduct
requiring the court to conduct a hearing and release jury information. There was ample evidence supporting
appellant’s convictions, and the true findings as to the special allegations,
beyond a reasonable doubt. Appellant had
failed to make a good cause showing of juror misconduct justifying a hearing,
and even if a prima facie showing had been made, there was a compelling
interest against disclosure, i.e., protecting jurors from danger since the
crimes were gang-related murders. The
court denied appellant’s motion.
b. Analysis.
Appellant claims the trial court erred by denying his motion
for the release of juror information. He
argues “appellant presented some evidence that jurors in his case had violated
the court’s instruction [CALCRIM No. 355
that appellant did not testify in his own defense. The court was therefore required to set the
matter for a hearing, unless there was a factual showing on the record of facts
that establish a compelling interest against disclosure.†We reject his claim.
Code
of Civil Procedure sections 206, subdivision (g), and 237, subdivision (b) set
forth procedures governing such motions, i.e., criminal defendants’ petitions
for access to the court’s record of personal juror identification
information. Code of Civil Procedure
section 237, subdivision (b), requires, generally speaking, a hearing on the
matter upon a prima facie showing of good cause, unless there exists a
compelling interest against disclosure.
A
trial court may deny an evidentiary hearing if the court concludes the
defendant did not make a good cause showing of juror misconduct. (People
v. Jefflo (1998) 63 Cal.App.4th 1314, 1322 (Jefflo).) We review a trial
court’s denial of such a hearing, and a trial court’s denial of a petition for
access to personal juror identification information, for abuse of
discretion. (People v. Jones (1998) 17 Cal.4th 279, 317; People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
In the present
case, appellant’s claim is based on the premise he was entitled to a hearing
because he made “a prima facie showing of good cause†(Code Civ. Proc.,
§ 237, subd. (b)) that jurors had violated CALCRIM No. 355 by considering
the fact appellant did not testify.
However, Tennen’s
declaration was the sole declaration supporting appellant’s motion. The declaration was patently vague. It stated, “We spoke with about five or six
jurors who served on the panel, at least two of whom participated in the
verdict.†First, there were multiple
verdicts on multiple counts dealing with offenses occurring in 2007 and 2008,
not just one verdict, and it is not clear to which “verdict†the statement
refers. Second, the above quoted
sentence suggests that “[w]e spoke†with about five or six jurors who served on
the 12-person jury, and at least two participated in the verdicts but the rest
of the jurors did not participate in the verdicts. However, the verdicts were, of course,
unanimous. Third, the above quoted
sentence alternatively suggests “[w]e spoke†with about five or six jurors who
served on the 12-person jury, and at least two participated in the discussions
during the deliberations leading to the verdicts but the rest did not
participate in the discussions. Other
constructions are possible.
The declaration
also states, “5. Juror Number 11 and
another juror told me that while they were in the jury room ‘We said “What’s
the defense? There wasn’t any.†’ The declaration thus recited hearsay (a fact
the court was entitled to consider) at least to the extent the declaration
recited what the two jurors told Tennen.
The above quoted sentence does not expressly identify who “we†is, e.g.,
whether “we†referred merely to the two jurors, or to the two jurors and other
jurors. The declaration identifies only
one of the two jurors, i.e., Juror No. 11.
The above quoted sentence does not expressly state that the statements
to the effect there was no “defense†were made during deliberations.
Moreover,
as to appellant’s position that the two jurors’ statements to the effect there
was no “defense†indicated the jury considered appellant’s failure to testify,
the term “defense†is ambiguous. The
term could mean defense evidence (whether testimony or not) coupled with
defense jury argument, as when our Supreme Court in People v. Mayfield (1993) 5 Cal.4th 142, stated, “[Defendant’s]
defense consisted of the playing of the complete audiotaped confession . . .
and closing argument.†(
(whether testimony or not), apart from any jury argument.
According
to the declaration, two jurors (appellant suggests more) made statements at
some point in the jury room to the effect there was no “defense.†However, if the term “defense†meant defense
evidence (testimony or not) and defense jury argument, the statement was
objectively false since appellant presented documentary evidence suggesting he
had been misidentified as DeLeon, and appellant suggested during jury argument
as to all counts that he might have been mistaken for DeLeon. Similarly, if the term “defense†simply meant
defense evidence (whether testimony or not), the two jurors’ statements were
false since appellant presented documentary evidence.
In
light of the above, it is unclear what the two jurors meant when they said
there was no “defense.†They may have
meant, not that defense evidence and/or defense jury argument had not been
presented (since obviously they had been presented) but, as hyperbole, that the
defense evidence and/or argument had little convincing force. Appellant was not obligated to present
defense evidence or jury argument but once he did, the jury was free to
consider and evaluate said evidence and/or argument.
Alternatively,
the term “defense†could have simply meant testimony from a third party defense
witness(es) (i.e., a person(s) other than appellant) as when the court in
357, stated, “[appellant’s] defense consisted of testimony from three witnesses
[other than the defendant].†(
was no “defense,†they may have simply meant that no third party defense
witness(es) had testified. In that
event, the statement was true, the jury was entitled to consider the fact no
third party defense witness(es) testified (since appellant had introduced
documentary evidence), and the statement did not indicate the jury considered
the fact appellant did not testify. The
two jurors did not expressly state appellant did not testify.
Similarly,
Tennen’s declaration stated, “6. I heard
one juror ask Attorney Sussman why [appellant] did not take the stand.†Nothing in the declaration identifies the
juror. Nothing in the declaration
indicates (1) during deliberations, said juror asked why appellant did not take
stand or (2) the fact appellant did not take the stand was considered or
discussed by any juror during deliberations.
In fact, Tennen indicated Sussman spoke to alternate jurors. If the juror who asked the question of Tennen
was still an alternate juror, he or she did not participate in
deliberations. Nothing in the
declaration indicates the juror’s question was based on anything other than
postverdict curiosity. (Cf.
The juror asked
the question of Sussman, and nothing in the declaration makes clear the timing
of that question viz-a-viz the timing of the previously mentioned statements by
the two jurors, where the various persons exactly were at the time of the
statements and question (other than generally together outside the jury room on
the courthouse lower level), or whether the question was or was not part of a
colloquy in which the statements were made.
The juror did not state he drew an inference adverse to appellant from
the fact he did not testify.
In sum, Tennen’s
declaration was too vague and ambiguous to constitute a prima facie showing of
good cause the jury considered appellant’s failure to testify and, therefore,
violated CALCRIM No. 355. Nor did the
supporting memorandum assist to establish such a showing.
9.
As discussed (see
fn. 2, ante), our Supreme Court
transferred this cause to us for reconsideration in light of
alia, his sentence of life without the possibility of parole (LWOP) on count 3
violates the Eighth Amendment.
a. Pertinent
Facts.
A
preconviction probation report prepared for a 2009 hearing reflects facts
pertaining to the 2007 and 2008 present offenses and that appellant was 16
years old when he committed the 2008 offenses (counts 3 – 5). The report also reflects as follows. Appellant was involved with the “Cayuga
Street Locos; Pacoima-Cayuga Street†gang.
His monikers were Gangsta, Gangster, Fuco, and Temperganst. Appellant used marijuana daily in 2007. Probation records for 2007 indicated he lived
with nine relatives, attended school regularly, and had satisfactory grades.
The report
indicated the following concerning appellant’s prior record of juvenile
offenses. In April 2007, appellant
suffered separate sustained petitions for battery and felony vandalism,
respectively, for each of which offenses he was placed home on probation. (Appellant committed, on about June 15, 2007,
the offenses at issue in counts 1 and 2 in the present case.) In July 2007, appellant was arrested for
possession of a controlled substance (Health & Saf. Code, § 11377, subd.
(a)) and, in October 2007, he suffered a sustained petition for that offense
and was placed home on probation. In
November 2007, appellant suffered a sustained petition for robbery and was
ordered placed in camp. On May 30, 2008,
appellant was released from camp.
(Appellant committed, on June 8, 2008, the offenses at issue in counts 3
through 5 in the present case.) At the
time of the present offenses, appellant was home on probation in each of the
above cases in which he suffered a sustained petition.
The report listed as aggravating factors that the
crime involved great violence, great bodily harm, a threat of great bodily harm
or other acts disclosing a high degree of cruelty, viciousness or callousness;
his prior convictions as an adult or adjudications of commission of crimes as a
juvenile were numerous or of increasing seriousness; and he had engaged in a
pattern of violent conduct which indicated a serious danger to soc
| Description | Appellant Jesse Silva appeals from the judgment entered following his convictions by jury on two counts of first degree murder (Pen. Code, § 187;[1] counts 1 & 3), each with a multiple murder special circumstance (§ 190.2, subd. (a)(3)) and a gang special circumstance (§ 190.2, subd. (a)(22)), and on count 4 – attempted willful, deliberate, and premeditated murder (§§ 664,187) with, as to each of the above offenses, findings appellant personally, and a principal, used a firearm, intentionally discharged a firearm, and intentionally discharged a firearm causing great bodily injury or death (former § 12022.53, subds. (b), (c), (d) & (e)(1)). Appellant also appeals from the judgment entered following his convictions by jury on count 2 – discharge of a firearm with gross negligence (§ 246.3, subd. (a)) and count 5 – assault with a firearm (former § 245, subd. (a)(2)) with personal use of a firearm (former § 12022.5, subd. (a)). The jury found each of the above offenses was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)), and the trial court found appellant suffered a prior felony conviction (§ 667, subd. (d)). The trial court resentenced appellant to prison for life without the possibility of parole, plus 80 years to life.[2] After reconsideration of the matter in light of Miller, supra, 567 U.S. __ [183 L.Ed.2d 407], a decision the trial court did not have the benefit of, we affirm the judgment in part, vacate the judgment in part, and remand the matter for resentencing with directions. |
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