P. v. Silva
Filed 9/16/13 P. v. Silva CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
KEITH SILVA,
Defendant
and Appellant.
E055801
(Super.Ct.No.
FVA701548)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Ingrid A. Uhler, Judge. Affirmed
in part; reversed in part with directions.
Cara
DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Barry Carlton and Garrett
Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, Keith Silva, of first
degree murder (Pen.Code, § 187, subd. (a))
committed for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)(C)). In connection with the
murder, the jury further found that a principal had used a firearm, discharged
a firearm and discharged a firearm causing death (§ 12022.53, subds. (b), (c),
(d) & (e)(1)). In bifurcated
proceedings, defendant admitted having suffered a strike prior. He was sentenced to prison for 75 years to
life. He appeals, claiming the trial
court erred in refusing to dismiss the jury venire, in denying his
the jury. We reject these contentions
and affirm the judgment as it applies to them.
The parties agree that our holding in People v. Beltran (Aug.
21, 2012, E053541 [nonpub. opn.] (Beltran)) constitutes the law of the case and, based on it, we
reverse the gang true findings as to both offenses and the firearm true
findings as to the murder. We also
direct the trial court to correct errors in the abstract of judgment.
“On
April 4, 2003, defendant and his codefendant, both members and officers of a
local chapter of the Vagos motorcycle club, participated, along with seven
other members, in the beating of the victim, a club “hang-around,†because the
latter owed money to one of the other members and had not returned a truck
belonging to yet another. Then,
defendant drove the bound victim, along with the codefendant, in his truck out
to the desert where the victim was fatally shot.†(Beltran,
supra, E053541, pp. 2-3.) Facts relating to the gang findings are
described in Beltran. (Id.
at pp. 3-6.)
and Discussion
1.
Refusal to Dismiss the Jury Venire
On
the first day of jury selection, a panel of venire persons were brought into
the court room and “time qualified†during the morning, and another panel
during the afternoon. The trial court
announced to the morning group that the trial would be a “very lengthy†one and
to the afternoon group that it would last a month. The following court day, which was five days
later, whatever venire persons survived this process were brought together into
the court room and the trial court continued excusing some due to financial
hardship or because they had an association with someone who would be
testifying in the case. During this
time, one of the venire persons said, “I am a retired parole agent and so is my
husband and several other people I know.
I believe [defendant] was at one time on my husband’s caseload.†Both counsel immediately stipulated that this
venire person could be excused and she was.
The trial court then said, “I’m going to indicate to all of you as
jurors—based on [this venire person’s] most recent comment, I’m going to tell
you right now that [defendant] was not on parole in the State of California and
that she’s mistaken in terms of her husband being his parole agent. [¶]
Does everybody understand that?
He’s not on parole and has not been on parole. Everybody understand that? Okay.â€
After excusing another venire person, the court said to the venire,
“Because . . . you have to understand that first [the
female venire person] thought it was [the codefendant that her husband
supervised]—I don’t know if you were part of that panel that day—then she goes,
‘Oh, now I think it was [defendant].’ I
think, in all honesty, she’s using it as an excuse to get off the jury panel
because there’s actually no connection between the two at all. [¶] . . . [¶] We kind of expected this.
. . . [W]e still have a good core group of people that we
are going to get started with. We still
hope that we will actually get a panel from those that are willing to
remain—and I completely appreciate the fact that all of you are willing to
remain and participate in this jury process . . . .†Outside the presence of the venire, counsel
for defendant moved to have it dismissed and the process begun all over again
because “there is at least a reasonable likelihood that [the female venire
person’s] comments, despite what the Court told the jurors afterwards, may have
poisoned this panel . . . .†The trial court denied the request, saying,
“I think I sufficiently admonished the balance of the jury panel and made it
very clear that, obviously, [the female venire person’s] opinion that there may
be a connection between [defendant] and herself was an erroneous one. I think I made it very clear to the jury
panel that she made a mistake—and the same mistake with [the codefendant]—and, obviously,
I also conveyed my opinion to the other jurors that I thought she was just
using it as a tool to try to get off from the jury panel because from the
beginning we met her, she was giving all sorts of excuses trying to get off the
jury panel despite our efforts of having her remain as a potential juror, so I
think with the admonishment provided by the Court to the other potential
jurors, that that, obviously, deadens any type of potential prejudice with the
other jurors. They all agreed in unison that
they accepted the Court’s admonition and that, obviously, we’re under the legal
authority to expect and understand that the jurors do follow court
admonitions . . . .â€
Defendant points out that because the record states that he was
convicted of voluntary manslaughter
for the 1988 killing of his wife the trial court lied to the venire when it
said that defendant had never been on parole.
Also during trial,
defense counsel objected to the introduction into evidence of pictures of
defendant’s tattoos that he received in prison.
One was of an eagle and the other was of the letters, “I†and “E.†Counsel asserted that since two of the jurors
were employees of the Department of Corrections (one was retired but had worked
at “Calpatria State Prison, two fire camps†and Patton State Hospital, the
latter for 13 years, and the other
currently worked at Patton) “they . . . have to receive
certain training and have experience vis-Ã -vis . . . prison
tattoos and what they mean, . . . since the [c]ourt had
instructed the panel early on that [defendant] was not in prison, my concern is
that those jurors . . . could identify those as prison
tattoos.†The prosecutor pointed out
that the People’s expert, who would be testifying about defendant’s tattoos,
would not say that they were prison tattoos.
The prosecutor added that the People’s expert told him that he had seen
tattoos identical to both of defendant’s on a lot of people who had not been to
prison. The court added that it, too,
had seen “all the time†“I†and “E†tattoos on people “not
necessarily . . . placed in prison†and that this had
occurred in the presence of jurors who had Department of Corrections
backgrounds. The trial court ruled that
the photographs would be admitted, saying, “[B]ased on my experience in
handling a lot of gang trials in the past, . . . I don’t
think there’s anything unique to these tattoos that show any type of
affiliation to the prison system. I.E.
has been testified to in terms of chapters in the Inland Valley Empire, so that
could be testified to by the expert indicating that that’s not [an] unusual
type of tattooing for people that associate with the Inland Valley Empire Vagos
gang, and an eagle, which doesn’t show any indications of a particular
uniqueness of the eagle that would only be tattooed in the prison system. [¶] So
if [defendant] did . . . get those tattoos in the prison
system, so be it, but I don’t think there’s anything unique about those tattoos
so that any juror, even those that are associated by way of employment with the
Department of Corrections, will recognize those tattoos are from the state
prison system.â€
Defendant
concedes that the trial court’s denial of his request to have the venire
dismissed should be reversed only upon a clear showing of abuse of
discretion. (People v. Medina (1990)
51 Cal.3d 870, 889.) It is important to
note, as neither party here does, that whatever discussion occurred between
this venire person and the trial court before the latter stated her belief that
defendant was her husband’s charge did
not occur on the record before this court.
Therefore, we must assume that it took place out of the hearing of the
other venire persons. Thus, when the
trial court represented to the other potential jurors that this venire person
had previously said that it was the codefendant whom her husband had supervised
on parole, then changed her mind and said it was defendant, that she was using
it as an excuse to try to get out of jury service and “we kind of expected†her
to say such a thing, the rest of the venire had no reason to doubt the court’s
representations because these things had not taken place in their
presence. Thus, this case is entirely
different on its facts from Mach v.
Stewart (9th Cir. 1997) 137 F.3d 630 (Mach),
which defendant cites in support of his argument.
In
Mach, the defendant was charged with
sexual conduct with a minor. (
A prospective juror was a social worker for Child Protective
Services. (Id. at p. 632.) In the
presence of the entire venire, “the trial judge elicited from
[her] . . . that she had a certain amount of expertise in
this area (she had taken child psychology courses and worked with psychologists
and psychiatrists [and] she [had] worked with children as a social worker for
the state for at least three years); and . . . [she made]
four separate statements that she had never
been involved in a case in which a child accused an adult of sexual abuse where
that child’s statements had not been borne out.
While the court did warn [this potential juror] and the [other venire
persons] that jurors are to make determinations based on evidence rather than
on their own experiences or feelings, it went on to elicit yet another
statement from [the potential juror] that she had never known a child to lie
about sexual abuse. The court asked the
other [venire persons] whether anyone disagreed with her statement, and no one
responded. [¶] . . .
[¶] . . . Given the nature of [the potential juror’s]
statements, the certainty with which they were delivered, the years of
experience that led to them, and the number of times that they were repeated,
we presume that at least one juror was tainted and entered into jury
deliberations with the conviction that children simply never lie about being
sexually abused.†(Id. at p. 633.)
Comparing
the facts in Mach to those here
leaves little room for disagreement that the holding in Mach has no application whatsoever to this case. The female venire person’s statement here was
made once—not four times, as in Mach. It was immediately and powerfully called into
question by the trial court, based on information of which the venire was
unaware, giving the trial court more than an unfair advantage in the
credibility contest between it and the venire person. The admission of the pictures of defendant’s
tattoos did not change this. As the
trial court observed, and as has been the experience of this court, I.E.
tattoos are exceedingly common in this area and neither it nor the eagle tattoo
are suggestive of prison, even to an employee of the Department of
Corrections. With the popularity of
tattoos, there are a plethora of unprofessional tattoos being inflicted on the
general public. Moreover, the jury had
been repeatedly instructed not to consider anything but the evidence presented
and it must be assumed that they followed this directive. (People
v. Carey (2007) 41 Cal.4th 109, 130.)
For
the same reason, we reject defendant’s assertion that the trial court abused
its discretion in failing to ask each potential juror if he or she had been
affected by the offending remark of the female venire person.
by not requesting such an examination, defendant waived whatever error the
trial court committed by failing to question each potential juror. (People
v. Ramos (2004) 34 Cal.4th 494, 515.)
Equally
unhelpful is another federal case to which defendant draws our attention,
306 F.2d 398. In Paschal, the defendant was charged with passing counterfeit $20
bills, and he claimed that he did not know the money was counterfeit when he
used it to buy items. (
from a bank in his home state or when he played dice in the state where he
passed the bills. (Id. at p. 399.) A
stockholder and director of a local bank who was a potential juror said, in the
presence of his fellow venire persons, that his bank had gotten “[s]ome Paschal
moneyâ€â€”“[t]his defendant’s money†three years previously. (Ibid.) Although this potential juror was excused
from the jury, the circuit court concluded, “It is difficult to see how a
remark could be more prejudicial.
When . . . [a potential juror] comes forward with
the conclusion of guilt based upon some special information or knowledge he has
gained, in this case because [he] was a stockholder and director of a bank, the
influence on the minds of the other [prospective] jurors is inevitable. Such
statements appear in the guise of the real truth.
. . . [N]either judge nor
counsel . . . could effectively eradicate the impact of
such an occurrence. . . . Nothing could undo what his
words had done.†(Id. at p. 400, italics added.)
Here, in contrast, there was no “guise of truth†for the statement made
by the female venire person—just the opposite.
The trial court told the jury that she was mistaken and explained why
she said what she said.
2.
On
the fifth day of jury deliberations, defendant’s attorney, inter alia, moved to
dismiss from the jury juror number nine on the ground that she had withheld
information during voir dire. Despite
being asked by the trial court if she had ever been a victim or a witness to a
crime, she had failed during jury selection to disclose that in December 2008,
when she was six months pregnant with her boyfriend’s child, she had been
threatened, then assaulted by her boyfriend’s estranged wife, against whom she
had obtained a restraining order the previous September. During the December incident, the wife
entered the home of juror number nine and beat the latter using a walker and
stomped on her stomach. Juror number
nine was taken to the hospital, out of an abundance of caution, and she initially
told law enforcement that she wanted to prosecute her assailant, whom she could
identify. She then obtained a second
restraining order against the wife due to this incident. Either the assault or the wife’s violation of
the original restraining order was prosecuted as a misdemeanor and the wife was
placed in a work release program for 30 days.
The prosecutor feared that juror number nine was aware of the outcome of
the case and was upset with his office due to its lenient treatment of the
wife. The trial court concluded that
juror number nine had intentionally concealed material facts, which resulted in
prejudice to defendant, the codefendant and the People. The court granted the motion of all three
parties to dismiss this juror, but denied the codefendant’s motion to declare a
mistrial. The codefendant had argued
that a mistrial was appropriate because juror number nine had participated in
days of deliberations and “the way that she’s handled herself in the jury
deliberation room is going to contaminate†the other jurors. The trial court rejected this notion,
concluding that the instruction it intended to give to the newly constituted
jury that the latter was to begin deliberations afresh and ignore whatever had
been said or done in the deliberation room previously was sufficient.
Defendant
here asserts that the trial court erred in denying the codefendant’s motion for
mistrial. However, defendant waived the
error by failing to join in that motion.
(People v. Burgener (2003) 29
Cal.4th 833, 867, 869.)
name="_ftnref4" title="">[4] Moreover, defendant is incorrect on the
merits of the trial court’s ruling.
Defendant
contends that the trial court abused its discretion, i.e., that his chance of
receiving a fair trial had been damaged and cannot be repaired by direction due
to the concealment of information by juror number nine. (People
v. Wallace (2008) 44 Cal.4th 1032, 1068; People v. Ayala (2000) 23 Cal.4th 225, 282.) However, defendant concedes that we must
assume that the jury followed the court’s directive and only in exceptional
cases is the subject matter of the undisclosed information such that its effect
cannot be overcome by admonishment. (
574; People v. Allen (1978) 77 Cal.App.3d 924, 934, 935.) Defendant’s reasoning for asserting that this
is such an exceptional case is as follows: “[Had Juror No.9 been forthcoming,]
there would at least have been further questions asked of her, which in turn
would have affected either side’s use of either challenges for cause or
peremptory challenges, and by extension it would have affected the entire
composition of the rest of the jury.†As
proof of this assertion, defendant references the argument made to the trial
court by the codefendant in support of his motion for mistrial that “knowledge
of Juror [No.] 9’s status as a victim . . . ‘would have had
a very strong affect on the decision-making on the part of [the codefendant] as
to whether to exclude or include that juror or to ask to have her removed
either for cause or for challenge . . . .’†Of course, it goes without saying that the
exclusion of juror number nine because she had been a victim would have
affected the composition of the jury because she would not have been part of
it—and that is precisely what eventually happened. The reality is, however, that the prosecutor
would have challenged juror number nine either for cause or peremptorily and
gotten rid of her, which, again, is exactly what happened. This circular reasoning does not make this
case the exceptional one in which direction from the trial court could not cure
whatever damage was done by the withholding of information. Even the codefendant’s assertion below, i.e.,
that juror number nine somehow infected the other jurors by “the way she
handled herself†in the deliberation room, was based on pure speculation and
ignores the presumption defendant concedes we must honor that the reconstituted
jury observed the court’s directive by beginning deliberations anew and
ignoring whatever was said or done previously in the deliberation room.
Next,
defendant asserts that the record demonstrates a substantial likelihood that
one or more jurors was actually prejudiced against defendant (
296) because before juror number nine was dismissed, the jury deliberated three
full days and a little over three hours without reaching verdicts, but was able
to reach verdicts in about three hours after being reconstituted. All this suggests is that juror number nine
was not of one mind with the jurors, and her removal from the jury allowed the
others, who were convinced of the guilt of both defendants, to proceed
unencumbered. Certainly, earlier
complaints about juror number nine by other jurors that she was not focusing on
the evidence actually introduced at trial and that she was disagreeing with
them bore this out.
3.
Jury Instruction on Motive
The
jury was instructed that, inter alia, the charged torture, “require[s] proof of
the union or joint operation of act and wrongful intent. [¶]
For you to find [defendant] guilty of th[is] crime . . . ,
[defendant] must not only intentionally commit the prohibited act but must do
so with a specific intent and/or mental state.
The act and the specific intent and/or mental state required are
explained in the instruction for that crime.â€
The jury was further instructed, “To prove that the defendant is guilty
of [torture], the People must prove that:
[¶] 1. The defendant inflicted
great bodily injury on someone else; and,
[¶] 2. When inflicting the
injury, the defendant intended to cause cruel and extreme pain and suffering
for the purpose of revenge, extortion, persuasion, or for any sadistic
purpose.†Finally, the jury was
instructed, pursuant to the standard instruction on motive, “The People are not
required to prove that the defendant had a motive to commit the crime
charged. In reaching your verdict you
may, however, consider whether the defendant had a motive. [¶]
Having a motive may be a factor tending to show that the defendant is
guilty. Not having a motive may be a
factor tending to show the defendant is not guilty.â€
The
prosecutor argued to the jury concerning this torture, “I have to prove two
things, and those are the two things:
[¶] [First, i]nfliction of great
bodily injury. . . . [¶]
[Second], when the injury is inflicted, the person intends to cause
cruel or extreme pain and suffering for the purpose of revenge or
persuasion.†The prosecutor went on to
argue the facts that he asserted proved this.
He did not mention the standard jury instruction on motive.
Counsel
for defendant, however, did. He said, in
discussing the murder charge, “The judge has also instructed you that motive is
not an element of the crime, and it’s not. . . . [W]e’ve
seen enough motiveless crimes out there to know that motive is not an element
of the crime, but we also know that the presence of some sort of motive may
indicate guilt, the absence of some sort of motive may show innocence. In this case motive to kill [the victim] that
goes beyond some sort of a beating belongs to others. It belongs to a
lot . . . of people, but it does not belong to [the
defendant and the codefendant].†As to
the torture charge, counsel for defendant argued that there was insufficient
evidence that defendant either participated in the beating of the victim or
encouraged whoever beat the victim to do so.
He made no argument about defendant’s intent or motive as to that crime.
Defendant
here asserts that the standard instruction on motive caused the jury to
conclude that it was not, contrary to the other instructions mentioned above,
required to find beyond a reasonable doubt that he had the requisite intent for
torture in order to convict him of that crime and the failure of the trial
court, sua sponte, to inform the jury that the instruction on motive was
inapplicable to torture requires reversal of that conviction.
Rather
than take sides in the scuffle between the People and defendant over whether
defendant’s silence below constituted a waiver of the issue, we address its
merits. The question to be decided is
whether it is reasonably likely that, based on the presence of the standard
instruction on motive, the jury believed it did not have to find beyond a
reasonable doubt that defendant had the requisite intent for torture. (See People
v. Huggins (2006) 38 Cal.4th 175, 192; People
v. Frye (1998) 18 Cal.4th 894, 957 [disproved on other grounds in
421, fn. 22].) When considered with the
argument of counsel (Middleton v. McNeil
(2004) 541 U.S. 433, 434-438; People v.
Gonzales (2011) 51 Cal.4th 894, 939) we conclude that there is no such
likelihood.
As
the People point out, People v. Hamlin
(2009) 170 Cal.App.4th 1412, 1452, held that “because motive is not an element
of the crime of torture, the trial court did not err in instructing the jury
with [the standard instruction on motive].â€
The holding cited an identical one in People v. Lynn (1984) 159 Cal.App.3d 715 [Fourth Dist, Div. One],
concerning the crime of first degree murder by torture, which holding was later
approved by the California Supreme Court in People
v. Whisenhunt (2008) 44 Cal.4th 174, 218 based on its earlier conclusion in
People v. Hillhouse (2002) 27 Cal.4th
469, 503, 504 (Hillhouse), that
“‘although malice and certain intents and purposes are elements of the
[charged] crimes, . . . motive
is not an element.’ [Citation.] ‘Motive
describes the reason a person chooses
to commit a crime. The reason, however,
is different from a required mental state such as intent or malice.’ [Citation.]â€
(Hillhouse at pp. 503-504,
italics added.)
title="">[6] While Whisenhunt
and Hillhouse bind us (
because defendant argues that the jury was misled by the presence of the
standard instruction on motive, we have addressed the issue as we have.
4.
Gang Enhancements
The
parties agree that our holding in the codefendant’s appeal,
insufficient evidence that the Vagos had, as one of more of their primary activities,
the commission of “‘assault with a deadly weapon or by means likely to produce
great bodily injury, robbery, murder/manslaughter, the sale or possession for
sale, transportation of controlled substances, and/or sale, delivery, or
transfer of firearms’†(id. at pp.
6-7) is law of the case and requires reversal of the true findings as to the
street gang allegations for both crimes and the firearm allegations for the
murder, which are all dependent on the conclusion that the murder was committed
to benefit a street gang. Therefore, we
will reverse those true findings.
The
true findings under sections 186.22, subdivision (b) and 12022.53, subdivisions
(b), (c), (d) and (e)(1) are reversed, as are the sentences imposed for
them. If the People elect not to retry
defendant for these enhancements, or if the trial court determines retrial is
barred, the trial court is directed to impose a one year enhancement pursuant
to section 12022, subdivision (a)(1) as to the murder and to note this in an
amended abstract of judgment and court minutes.
In either event, the trial court is further directed to indicate 1) on
the first page of the abstract of judgment, that the 14-years-to-life term for
torture (count 2) is a concurrent term, 2) in section nine of the abstract,
that a $1,000 state restitution fine, pursuant to section 1202.4, subdivision
(b), and a $1,000 parole revocation fine, pursuant to section 1202.45, were
imposed, and 3) in section 9(b) of the abstract, that a $40 court security fee,
under section 1465.8, subdivision (a)(1), and a $30 criminal conviction
assessment, under Government Code section 70373, subdivision (a)(1), were
imposed for each of the two convictions.
In all other respects, the judgment is affirmed.
RAMIREZ, P. J.
We concur:
KING, J.
CODRINGTON, J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] On this court’s own motion, we have taken
judicial notice of the record in People
v. Beltran, E053541.
