P.
v. Silva













Filed
10/19/12 P. v. Silva
CA3







NOT
TO BE PUBLISHED






IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

----






>

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

C069793 (Super. Ct. No. 09F09373)

Defendant
Marcelino Silva, an inmate at Folsom State Prison serving a life term for
murder, slashed a fellow inmate with a razor blade. A jury convicted defendant of assault with a
deadly weapon with malice aforethought by a life prisoner (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1]
§ 4500) and possession of a sharp instrument by an inmate (§ 4502). The trial
court found true allegations that defendant had suffered two prior strike
convictions (§ 667, subds. (b)-(i); 1170.12) and sentenced him to 27 years to
life in prison. He appealed.

On appeal,
defendant claims instructional error and that the trial court abused its
discretion in failing to strike one of his strikes. Finding no error, we shall affirm.

FACTS

Correctional
Officer Randy Wahl was on duty in the yard at Folsom State Prison when he saw a
fight in the “alley” between two buildings.
He called in an alarm over the radio.
He ran toward the alley and ordered all inmates down. Defendant was running. Wahl stopped defendant, handcuffed him, and
made a cursory search, but found no
contraband. There appeared to be
a blood stain on defendant’s shirt and a cut on his right index finger.

Officers
responding to the alarm saw another inmate, Saustegui, on the ground href="http://www.fearnotlaw.com/">bleeding from his face. Saustegui had open wound lacerations to the
left side of his neck and his left cheek bone.
His wounds required stitches. A
razor blade from a disposable razor was found in the yard with wet blood on it.

A security camera
recorded the incident; the recording was played for the jury at trial.

DISCUSSION

I

Instructional Error

Defendant contends
it was error for the trial court to instruct the jury on implied malice. He argues the specific intent requirement of
section 4500 cannot be satisfied by implied malice. He asserts section 4500 “in effect, it is a
murder/attempted murder statute.” He
contends a violation of section 4500 where the victim does not die, like
attempted murder, requires a specific intent to kill, a href="http://www.sandiegohealthdirectory.com/">mental state inconsistent
with implied malice.

We are not
persuaded by defendant’s attempt to analogize his assault charge to murder and
attempted murder charges. Section 4500
is an assault statute, not a murder statute.
(See People v. McNabb (1935) 3
Cal.2d 441, 458 [explaining that the predecessor statute “was enacted as a
disciplinary regulation and as a means of protection to prisoners themselves
against the assaults of the vicious, and also to protect the officers who are
required to mingle with the inmates, unarmed”].) It

proscribes “assault upon the person of another with a deadly
weapon or instrument, or by any means of force likely to produce great href="http://www.sandiegohealthdirectory.com/">bodily injury,” when
committed by a life-term inmate with malice aforethought. It does not require intent to kill. The subsequent death of the victim (within a
year and a day) is relevant only in determining the penalty. If the victim dies, the punishment is death
or life imprisonment without the possibility of href="http://www.fearnotlaw.com/">parole; if the victim does not die, the
punishment is life without the possibility of parole for nine years. (§ 4500.)

The assault
offense defined in section 4500 requires the specific intent of malice
aforethought. (People v. Jeter (2005) 125 Cal.App.4th 1212, 1217 (>Jeter).)
“The words malice aforethought in section 4500 have the same meaning as
in sections 187 and 188.
[Citations.] Thus the rules that
have evolved regarding malice aforethought as an element in a charge of murder
apply to section 4500.” (>People v. Chacon (1968) 69 Cal.2d 765,
781 (Chacon), disapproved on another
ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) “Malice, for
the purpose of defining murder, may be express or implied.” (People
v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)


Under section 188,
which defines malice aforethought for purposes of the murder statute, express
malice is present “when there is manifested a deliberate intention unlawfully
to take away the life of a fellow creature.”
Malice is implied “when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant
heart.” (§ 188.) “The statutory definition of implied malice
has never proved of much assistance in defining the concept in concrete
terms.” (People v. Dellinger (1989) 49 Cal.3d 1212, 1217.) Our high court has “interpreted implied
malice as having ‘both a physical and a mental component. The physical component is satisfied by the
performance of “an act, the natural consequences of which are dangerous to
life.” [Citation.] The mental component is the requirement that
the defendant “knows that his conduct endangers the life of another and . . .
acts with a conscious disregard for life.”
[Citation.]’ [Citation.]” (People
v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).)

“Malice
aforethought as used in section 4500 has the same meaning as it has for murder
convictions, requiring either an intent to kill or ‘knowledge of the danger to,
and with conscious disregard for, human life.’
[Citations.]” (>Jeter, supra, 125 Cal.App.4th at p.
1216.) Here, the trial court instructed
the jury in a manner consistent with this meaning--that a violation of section
4500 required a specific intent and the specific intent required would be
explained in the instruction for that crime.
The jury was then instructed in the language of CALCRIM No. 2720, that
defendant had been charged with “assault with a deadly weapon with malice
aforethought, while serving a life sentence in violation of Penal Code section
4500.” The instruction set out the
elements of the offense, including that “the defendant acted with malice
aforethought.” It then defined malice
aforethought:

“There are two
kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish
the state of mind required for this crime.
[¶] The defendant acted with
express malice if he unlawfully intended to kill the person assaulted. [¶]
The defendant acted with implied malice if, one, he intentionally
committed an act; two, the natural consequences of the act were dangerous to
human life; three, at the time he acted, he knew his acts were dangerous to
human life; and four, he deliberately acted with conscious disregard for human
life.”

This definition of
malice aforethought is the same as that required for murder. (See Chun,
supra, 45 Cal.4th at p. 1181; CALCRIM No. 520.) Thus, in accordance with Chacon, supra, the trial
court defined malice aforethought for purposes of section 4500 using the same
definition applicable in murder cases.
The inclusion of a definition of implied malice was proper; the trial
court correctly instructed the jury.

II

Romero Motion

Defendant contends
the trial court abused its discretion in refusing to strike one of defendant’s
prior strikes. While conceding a
“significant” criminal history, defendant contends he is not within the spirit
of the three strikes law. Defendant
notes his two strikes--for murder and attempted murder--arose from a single
incident, where he fired multiple times into a car containing boisterous men,
killing one. He also argues a two-strike
sentence of 18 years to life would be ample punishment for his crime.

In the furtherance
of justice, a trial court may strike or dismiss a prior conviction
allegation. (§ 1385, subd. (a); >People v. Superior Court (>Romero) (1996) 13 Cal.4th 497.) “[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to
Penal Code section 1385(a), or in reviewing such a ruling, the court in
question must consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (>People v. Williams (1998) 17 Cal.4th
148, 161.)

A trial court’s
refusal to strike a prior conviction allegation is reviewed under the
deferential abuse of discretion standard.
(People v. Carmony (2004) 33
Cal.4th 367, 375 (Carmony).) “[T]he three strikes law not only establishes
a sentencing norm, it carefully circumscribes the trial court's power to depart
from this norm and requires the court to explicitly justify its decision to do
so. In doing so, the law creates a
strong presumption that any sentence that conforms to these sentencing norms is
both rational and proper.” (>Carmony, supra, 33 Cal.4th at p.
378.) Here, we find no abuse of
discretion.

That defendant’s
two strikes arose from the same brief crime spree does not require striking one
of them. In People v. Benson (1998) 18 Cal.4th 24, 36, at footnote 8, our
Supreme Court suggested there might be “circumstances in which two prior felony
convictions are so closely connected--for example, when multiple convictions
arise out of a single act by the defendant as distinguished from multiple acts
committed in an indivisible course of conduct--that a trial court would abuse
its discretion under section 1385 if it failed to strike one of the
priors.” Here, defendant’s two strikes
did not arise from a single act; he fired a gun at least eight times, stopping
to reload, at two men that he perceived had “talked back” to him, firing until
one victim was dead and the other had escaped by crawling out of the other side
of the car he was sitting in.
Defendant’s conduct constituted multiple acts of violence, properly
resulting in multiple counts of conviction, properly resulting in two strikes.href="#_ftn2" name="_ftnref2" title="">[2]

As defendant
acknowledges, the trial court “conscientiously considered and ruled on”
defendant’s Romero motion. The court considered that defendant’s prior
convictions all involved violence. In
1991, he repeatedly fired his gun into a car, committing murder. He had suffered two misdemeanor convictions
for spousal abuse and battery. While in
prison, he had several serious rule violations.
His potential for violence was such as to require shackling at
trial. His current conviction was for
assault with malice, slashing his victim’s throat, and the trial court believed
from reviewing the recording that defendant intended to kill his victim.

The purpose of the
three strikes law is “to ensure longer prison sentences and greater punishment
for those who commit a felony and have been previously convicted of serious
and/or violent felony offenses.” (§ 667,
subd. (b); see People v. Strong
(2001) 87 Cal.App.4th 328, 338.)
Defendant’s pattern of violent behavior, spanning over two decades and
continuing while defendant was incarcerated, amply supports the trial court’s
well-reasoned conclusion that defendant was not outside the spirit of the three
strikes law.

DISPOSITION

The judgment is
affirmed.







DUARTE , J.







We concur:







BLEASE , Acting P. J.







HULL , J.