P. v. Silva



















Filed 2/27/13 P. v. Silva CA2/4

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR




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THE PEOPLE, Plaintiff and Respondent, v. RAUL SILVA, Defendant and Appellant.

B236916 (Los Angeles County Super. Ct. No. NA072796)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Stephen A. Marcus, Judge. Affirmed.

Susan Pochter Stone, 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, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.

A jury found appellant Raul Silva
guilty of first degree murder (Pen.
Code, § 187, subd. (a)),href="#_ftn1"
name="_ftnref1" title="">[1]
and found true three special circumstance allegations -- witness murder,
lying-in-wait, and gang murder (§ 190.2, subds. (a)(10), (a)(15), &
(a)(22)) -- as well as a gang enhancement allegation (§ 186.22, subd.
(b)(1)(C)). The trial court sentenced
appellant to state prison for life
without the possibility of parole. He
appeals from the judgment of conviction, contending that his conviction must be
reversed because the evidence was insufficient to corroborate the testimony of
an accomplice, Jose Covarrubias. We
affirm the judgment.



BACKGROUND

Prosecution Evidence

Appellant, a 204th Street gang member,
was convicted as an aider and abettor in the murder of Christopher Ash. Ash was a 204th Street gang member who was
killed because fellow gang members believed he was a “snitch” regarding the
murder of 14-year-old Cheryl Green, committed by 204th Street gang member
Jonathan Fajardo. According to Jose
Covarrubias, an accomplice in Ash’s killing and the key prosecution witness at
trial (as well as the boyfriend of Ash’s sister), Ash was murdered in the
garage of appellant’s house. Like
Covarrubias, the participants in the murder were all 204th Street gang members, including appellant,
Fajardo, Robert Gonzales, and Carlos Pimentel.
Because the only issue on appeal is the sufficiency of the evidence to
corroborate Covarrubias’ testimony, our summary of the evidence focuses
primarily on his testimony. We save for
our Discussion section a description of much of the corroborating evidence.

The Green murder about which Ash was
purportedly informing occurred on December 15, 2006.
Members of the 204th Street gang, including Ash, were later
questioned by Los Angeles Police Officers about the shooting. The police ultimately determined that
Fajardo, a 204th Street gang member, shot Green, with Ernesto Alcarez, another
204th Street gang member, acting as his lookout.

On December
21, 2006,
Los Angeles Police Officers investigating Green’s murder executed search
warrants at eight homes believed to belong to 204th Street gang members, including Ash’s
apartment on 204th Street.
In the apartment, police discovered a hand grenade and ammunition. Alcarez, Ash, Covarrubias, and Daniel Aguilar
(a long-time friend of Ash and a fellow 204th Street gang member), who were present
during the search, were taken in for questioning and released.

Thereafter, according to Covarrubias,
rumors started that Ash was snitching about the Green murder. Also, Aguilar claimed that Ash kept journals
about the gang. On December
28, 2006,
Covarrubias was walking down the street when appellant drove up in his Bronco
and asked him to get in the car. Aguilar
and another 204th Street gang member, Eugenio Claudio, were
also in the car. Appellant drove to
Claudio’s house. where he asked
Covarrubias about the December 21 raid.
Covarrubias told him that he and Ash were handcuffed when they returned
from getting drugs and that the police found ammunition in Ash’s house.

After saying that they were going to
“put in work” for the gang, appellant drove Covarrubias, Claudio, and Aguilar
to appellant’s house, where they went into the garage. Several other 204th Street gang members joined them, including
Fajardo, Carlos Pimentel, and Robert Gonzales.


Pimentel pulled Covarrubias aside and
asked if he thought Ash was snitching.
Covarrubias said yes, because no one was arrested even though
ammunition, a gun, and a grenade were found at Ash’s house during the raid. He also told Pimentel that Aguilar said Ash
had a diary of gang activities.

Pimentel said that Ash was going to be
killed. He told Covarrubias to follow
his lead when Ash arrived and “tear up” Ash’s body. Everyone present, including appellant,
listened and agreed that Ash should be killed for being a snitch. Gonzales passed out knives to some of the
group. Fajardo armed himself with a
shotgun, and appellant had a revolver.

At Pimentel’s direction, Aguilar and
Gonzales left to pick Ash up. According
to Ash’s mother, Karen Blish, around 10:38 that night, Ash woke her up and told
her that he and Aguilar were going next door.
Aguilar hugged Karen and told her everything was going to be okay. Ash and Aguilar left.

Meanwhile, according to Covarrubias, while
the group at appellant’s garage was waiting for Aguilar to return with Ash,
appellant received a call from Aguilar to say they were on their way. When Ash entered the garage, Fajardo hit him
in the back of the head with his shotgun.
The others, including appellant, began hitting and kicking Ash and
calling him a snitch, a charge Ash denied.
Pimentel told everyone to leave Ash alone. He put his arms around Ash, and then stabbed him in the neck
repeatedly. Covarrubias and the others
stabbed Ash as well.href="#_ftn2"
name="_ftnref2" title="">[2] Covarrubias became sick at the stabbing,
and dropped his knife.

After Ash was dead, the body was
wrapped in a blanket. Pimentel left to
get a van that belonged to his girlfriend, Adela Duarte. When he returned, the group put the body in
the van, and Fajardo and Pimentel drove away in the van. Appellant, Covarrubias, Aguilar, and others
cleaned the garage, washing the blood away and throwing paint and paint thinner
on the garage floor.

Fajardo returned from disposing of the
body, took Covarrubias aside, and told him to toughen up and not let the others
see him crying. Fajardo told Covarrubias
that the others had planned to kill Ash, Aguilar, and Covarrubias because they
thought they all were snitching, but Fajardo spoke up for Covarrubias and
Claudio spoke up for Aguilar. No one had
spoken up for Ash.

Ash’s body was found that night around
11:30 p.m. on Grace Avenue in the City of Carson, wrapped in a blanket with multiple
stab wounds and five blunt force injuries to his head.

Pimentel’s girlfriend, Duarte, testified that on December
28, 2006,
she and Pimentel went out in her van and returned around 10:00 p.m., parking the van in its usual
space. The keys were left in the usual
place in the living room. Duarte went to bed shortly after coming
home. The following morning, Duarte’s neighbors showed her that her van
had hit one of her neighbor’s cars. The
van was not parked where Duarte and Pimentel had left it the night
before, but was parked backwards, facing head out. Duarte noticed that appellant’s Bronco was
also in the parking area, blocking her neighbor’s car.

Investigators later discovered blood
in the van that was determined to be Ash’s.
They also discovered traces of Ash’s blood in appellant’s garage.



>DISCUSSION

Appellant contends that the evidence
was insufficient to corroborate Covarrubias’ testimony linking appellant to
Ash’s killing, and that therefore the judgment must be reversed. We disagree.


Section 1111 prohibits a defendant
from being convicted on the uncorroborated testimony of an accomplice. However, the requisite corroboration of an
accomplice’s testimony “‘may be circumstantial or slight and entitled to little
consideration when standing alone, and it must tend to implicate the defendant
by relating to an act that is an element of the crime. The corroborating evidence need not by itself
establish every element of the crime, but it must, without aid from the
accomplice’s testimony, tend to connect the defendant with the crime. [Citation.]
The trier of fact’s determination on the issue of corroboration is
binding on the reviewing court unless the corroborating evidence should not
have been admitted or does not reasonably tend to connect the defendant with
the commission of the crime.’
[Citations.]” (>People v. Abilez (2007) 41 Cal.4th 472,
505.)

Here, there was a wealth of evidence
corroborating Covarrubias’ testimony connecting appellant with Ash’s
murder. We mention only some of it,
beginning with evidence we have already mentioned in our evidentiary
summary. Ash’s blood was discovered in
appellant’s garage (where Covarrubias said the killing occurred), as well as in
Adela Duarte’s van (which Covarrubias said was used to transport Ash’s body
away from appellant’s garage). Moreover,
Karen Blish’s testimony that Ash left her house with Aguilar on the night of
the murder corroborated Covarrubias’s testimony that Aguilar had been
dispatched from appellant’s garage to bring Ash back there to be murdered.

Other evidence further corroborated
appellant’s involvement, most importantly jail house conversations between
Fajardo and appellant in which they discussed Ash’s murder. On January 8, 2007, appellant and Fajardo
were housed together in a jail cell that was equipped with recording
equipment. Portions were introduced at
trial.

At one point, Fajardo told appellant,
“they found the blood all over Adela’s [Duarte’s] van dawg. In the back.”
Appellant replied, “Don’t talk too much. . . . That’s why they put you in here, I think. . .
. To see – to see if one talks about
something.” Later, Fajardo told
appellant, “they say they got my fingerprints on the steering wheel,” but
appellant reassured him, “They’re gonna say all that shit.”

Fajardo told appellant that he
admitted to the police that he killed Ash.
Appellant then asked if the police had asked about “the pad, my mom’s
pad,” indicating appellant’s concern that the police knew Ash had been killed
in his garage.

Fajardo mentioned that the police took
his clothing to look for evidence, and appellant replied, “Remember [w]hat then
I had told you?” Fajardo said, “Clean
that shit good homie. You said something
like that.” Appellant added, “Remember
take that shit to the car wash.” Fajardo
replied, “I never did though.”

Fajardo and appellant talked several
times about whether someone was snitching.
At one point, Fajardo told appellant, “I ain’t say no names homie. . .
. I put the blame to myself.” Fajardo said that he heard that Ash “wasn’t
throwing rats.” Appellant asked Fajardo,
“Who might it been? Who do you think it
was?” Fajardo said that he did not know,
but they began speculating that it was “Cavey,” or Eugenio Claudio. After more discussion, appellant reminded
Fajardo, “Don’t talk too much.” Fajardo
later said, “I’m already taking blame for everything. I’m already taking blame for [Green’s
murder]. I’m just trying to get Puppet
[Alcarez] out,” because “he had nothing to do with it.” Fajardo also said that the detectives “took
me to where we dumped that fool.”

These conversations and appellant’s
participation in them corroborated Covarrubias’ account of appellant’s
involvement in the murders. Together
with the presence of Ash’s blood in appellant’s garage and Duarte’s van, and
Karen Blish’s testimony corroborating Covarrubias’ account of how Ash was
transported to appellant’s garage to be murdered, the jailhouse conversations
constituted near irrefutable evidence corroborating appellant’s involvement in
Ash’s killing. This evidence was certainly
sufficient to meet the standard required for accomplice corroboration.



DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
J.





We concur:







EPSTEIN, P. J.







SUZUKAWA, J.