P. v. Silva

Filed 6/28/06 P. v. Silva CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant David Silva was convicted, following a jury trial, of the rape and murder of an 86-year-old woman. On appeal, he contends the trial court erred in (1) failing to hold an evidentiary hearing, pursuant to People v. Kelly (1976) 17 Cal.3d 24 (Kelly), to determine whether subsequent scientific developments had undermined the general acceptance of deoxyribo-nucleic acid (DNA) typing of the kind used in this case (i.e., polymerase chain reaction (PCR)-based DNA typing involving short tandem repeats (STRs)), and (2) refusing a special defense instruction regarding the jury's consideration of DNA typing evidence and that evidence's relationship to reasonable doubt. We shall affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged by information with murder (Pen. Code, § 187–count one),[1] and rape (§ 261, subd. (a)(2)–count two). The information also alleged that both counts were committed against a person who was 60 years of age or older (§ 1203.09, subd. (b)(1)), that the murder was committed while appellant was engaged in the commission of rape, a special circumstance (§ 190.2, subd. (a)(17)(c)), and, with respect to the rape, appellant committed great bodily injury on a person who was 70 years of age or older (§ 12022.7, subd. (c)).

Following a trial, the jury found appellant guilty as charged, and found all of the allegations true.

On February 28, 2003, the trial court sentenced appellant to a term of life in prison without the possibility of parole.

Although appellant initially stated that he did not want to appeal, counsel filed a notice of appeal on his behalf on March 13, 2003.

FACTUAL BACKGROUND

General Evidence

In March 1999, Velma S. was 86 years old. She lived alone on Norton Street in San Francisco, where she had resided since the 1960's. She walked with a cane, but otherwise was in good health. On the afternoon of Tuesday, March 9, 1999, after a friend expressed concern about being unable to reach her the previous evening, Velma S.'s niece, Shirley Hack, went to her house and found Velma S.'s body in her bedroom, lying on her back on the bed. There was a pillow over her face, her night dress was pulled up around her upper thighs, and her underwear were on the floor. Her nightstand was at an angle and some things had been knocked over. There was no paper money in her purse, though she usually carried $20 to $40, and an empty coin purse that was normally in her purse was on the floor. Also in the bedroom there were broken pieces of a necklace Velma S. always wore. Hack left the room and called 911.

Velma S. had previously told Hack that appellant did odd jobs for her and had introduced Hack to appellant three times in the neighborhood. Hack gave appellant's name to the police the night she found Velma S.'s body. When Hack was later cleaning out her aunt's house, she found four oil paintings in the basement that Velma S. had said she was letting appellant store there.

James Spes, who lived near to Velma S. and knew her for about 30 years, took care of her cat when she was out of town, including a Wednesday to Sunday trip she had taken a few days before her death. Spes knew appellant, whom he had seen in the neighborhood many times in the four or five years before Velma S.'s death, in front of a local church, where appellant panhandled; in a parking lot at the end of Norton; and riding his bicycle around the neighborhood. On the Friday evening before her death, when Spes was leaving Velma S.'s house, appellant approached him and asked if Velma S. was home. When Spes said she was not, appellant urgently asked if he could get into the garage because he needed to get some artwork out, and Spes told appellant he had no access to the garage. Appellant then turned around and walked away without another word.

Michella Griffin, who lived across the street from Velma S., saw appellant around the neighborhood at least every week, usually in a nearby parking lot, where he would ask for money to watch people's cars. She also saw him go to Velma S.'s house once or twice a week; Velma S. would let him into the garage, and sometimes he would take out her garbage can. The night Velma S.'s body was found, Griffin told police they needed to investigate appellant.

Arlyn Dumlao lived three houses down from Velma S. She saw appellant in the parking lot on Norton almost every day and occasionally gave him money. The evening before Velma S.'s body was found, appellant knocked on Dumlao's living room window and asked if she could give him money for a prescription. When she told him she did not have any money, he was persistent and asked her if she was sure.

San Francisco Police Officer William Braconi interviewed neighbors in the area on March 10, 1999, the day after Velma S.'s body was discovered, and, based on information that appellant lived in the area and did work for Velma S., began a search for appellant. Braconi learned that appellant lived nearby, beneath the outside staircase to a home, where there was a small storage room. Braconi arrested appellant on an outstanding drug warrant. On the way to the police station, appellant said he had just returned from a trip to Reno. When Braconi asked if he was going to go back to Reno, appellant said, â€