People v. Silva

Citation45 Cal.3d 604,247 Cal.Rptr. 573,754 P.2d 1070
CourtUnited States State Supreme Court (California)
Decision Date09 June 1988
Parties, 754 P.2d 1070 The PEOPLE, Plaintiff and Respondent, v. Benjamin Wai SILVA, Defendant and Appellant. Crim. 22546.
[754 P.2d 1072] Emry J. Allen, Sacramento, under appointment by the Supreme Court, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

I. INTRODUCTION

On June 29, 1981, a first amended information was filed in Lassen County Superior Court charging defendant, Benjamin Wai Silva, with murdering Kevin Thorpe and Laura Craig. Both counts of the information alleged six special circumstances: murder The information also charged defendant with kidnapping and robbing Kevin and Laura. Each of these four counts additionally alleged that defendant was armed with and used a firearm, and inflicted great bodily injury (§ 12022.7). The seventh count in the information charged defendant with unlawful possession of a machine gun (§ 12220), and the eighth count charged him with unlawful possession of a silencer for a firearm (§ 12520). Three additional counts were severed prior to trial and therefore are not before us.

[754 P.2d 1073] for financial gain (Pen.Code, § 190.2, subd. (a)(1); all further statutory references are to this code); multiple murder (id. subd. (a)(3)); murder of a witness to prevent testimony (id. subd. (a)(10)); heinous, atrocious and cruel murder (id. subd. (a)(14)); felony murder (robbery and kidnapping for robbery) (id. subd. (a)(17)); and torture murder (id. subd. (a)(18)). The information also alleged that defendant was armed with, and used, firearms in the commission of the murders (§§ 12022, subd. (a), 12022.5).

Also on June 29, defendant filed a motion for change of venue which was granted; the case was transferred to San Bernardino County.

On August 5, 1981, defendant's motion to dismiss under section 995 was granted in part. Specifically, the court struck the witness-murder special circumstance with respect to both Kevin and Laura, the torture-murder special circumstance with respect to Kevin, and the felony-murder (robbery) special circumstance with respect to both murder charges. The felony-murder (kidnapping for robbery) special circumstance was left intact. The court also struck the allegation that defendant used a machine gun in counts 5 and 6 (robbery of Kevin and Laura), but left intact the charge that he used a handgun.

On January 11, 1982, a second amended information was filed in San Bernardino County, reflecting an order permitting the district attorney to reinstate the witness-murder special circumstance as to both murder counts, and to allege that, with respect to the robbery charges in counts 5 and 6, defendant was armed with, and personally used, a shotgun and a machine gun, as well as a handgun.

A jury found defendant guilty of first degree murder of Kevin and found each of the special circumstances (except for the multiple-murder allegation), and enhancements in count 1 to be true. Defendant was found not guilty of the murder of Laura. The jury found defendant guilty as charged with respect to every other count in the information and found all of the enhancements charged therein true, except for the great bodily injury enhancements charged in counts 4 and 6 (the kidnapping and robbery of Laura). Defendant was subsequently sentenced to death. This appeal is automatic. (§ 1239, subd. (b).)

As will appear, we reject defendant's claims of prejudicial error and affirm the judgment in its entirety.

II. FACTS

On January 11, 1981, Kevin Thorpe and his girlfriend Laura Craig left Ridgecrest, California, for Oregon where they attended college. They were driving Kevin's white four-door Ford Elite, which was pulling a utility trailer containing their belongings. They were driving north on Highway 395 through Madeline, California, when their trailer suffered a flat tire. They pulled into a gas station in town and Kevin set to work repairing the tire, a project that--due to complications--required several hours. Around 9 p.m., the operator of the gas station offered Kevin and Laura a place to stay for the night; they declined, expressing their desire to reach Oregon that night. The tire was eventually fixed and the couple resumed their journey.

That same evening, defendant, Joe Shelton and Norm Thomas also planned a trip to Oregon. The three men lived on Shelton's property, which was located about seven miles west of Madeline. They had been talking about women that evening and when Thomas told the others that he knew some women in Oregon, they decided to drive up and see them. They left Shelton's Defendant saw Kevin working on the trailer's flat tire when he pulled into the gas station. He also saw Laura and told Thomas and Shelton that he desired her. While driving away from the gas station, defendant explained to Shelton and Thomas his plan for kidnapping the couple: The men would wait for the car to drive by and then stop it by signaling with a red light. Defendant and Shelton, armed with guns, would then approach the vehicle and drive it back to Shelton's cabin. Thomas would follow, driving defendant's truck. Shelton objected to the plan because he was well known in the small town. It was therefore decided that Thomas would accompany defendant in place of Shelton.

[754 P.2d 1074] property in defendant's truck around 8 p.m., and stopped at the gas station in Madeline to fill up the tank.

Defendant stopped the truck and backed it into a side road adjoining Highway 395. Thomas and Shelton exited the car and traded places so that Shelton was now sitting in the middle of the front seat. The three waited for approximately an hour before Kevin's car drove by.

In accordance with his plan, defendant followed. After a short distance he took a spotlight covered with a red lens and held it out the window, pointing it at Kevin's car. Kevin pulled over and defendant pulled up behind him. As he exited the truck, defendant handed the spotlight to Shelton and instructed him to turn it off if another vehicle came by. Defendant then walked to the driver while Thomas approached the passenger. Defendant pointed a shotgun at Kevin's face and commanded him to move over; defendant sat behind the wheel and Thomas, armed with a pistol, entered the back seat. Defendant placed the shotgun on the floorboard and pulled out a .44 magnum. He cocked the weapon, pointed it at Kevin's chin, and warned him not to try anything because the gun had a hair trigger. Defendant then drove the vehicle to Shelton's cabin and Shelton followed in the truck.

After arriving at the cabin, defendant picked up his shotgun and ordered Kevin and Laura out of the car. He told Thomas to drive their vehicle further up the road and to leave it there. Thomas complied. Before he left the vehicle, however, he shot and killed a dog in the back seat of Kevin's and Laura's car.

Thomas returned to the cabin about half an hour later. He found Kevin and Laura on the couch. Defendant and Shelton left Thomas with the couple and exited the cabin. They returned shortly with numerous items which they had stolen from the couple's car and trailer.

Defendant and Shelton then began discussing what should be done with Kevin. They decided to chain him up for the night. Chains were placed around Kevin's body, secured by locks, and Kevin was taken outside where he was chained to a tree by his neck; Thomas was left in the cabin to watch Laura. When defendant and Shelton returned, defendant told Thomas that they had taken Kevin's wallet and gave Thomas $200 as his share of the loot. He then recruited Thomas to help him dispose of Kevin's car. Following defendant's instructions, Thomas drove the Ford to an area about 10 miles from Adin, California. Defendant drove behind Thomas in his truck. When Thomas stopped the car, defendant changed his plans for the vehicle. He had originally told Thomas that the car would be blown up; instead, the battery was removed from the car, its right rear tire was flattened, and defendant and Thomas wiped the car down to remove fingerprints. They did not return to Shelton's cabin until early the following morning.

They found Shelton asleep with Laura when they returned; Shelton stated he had had intercourse with her several times while she was at the cabin. When he awoke, Shelton and defendant left the cabin. Thomas had intercourse with Laura while they were gone. Thereafter, Thomas left the cabin and found defendant and Shelton standing around a burn barrel. They were burning several items which they had taken from Kevin and the car, including Kevin's belt buckle, car keys, papers that were taken from the car, and the trailer's license plate which had been cut Thomas took between two and three hours to chop up the body in accordance with defendant's directions. Thomas was sick several times during the task. Defendant watched the entire process and inquired whether he should keep Kevin's skull as a souvenir. He rejected the idea because the skull would contain bullet holes.

[754 P.2d 1075] up to hinder identification. Defendant told Thomas to follow him and he led Thomas up the side of the hill where Thomas found Kevin's body lying on the ground with a carpet thrown over it. There was blood everywhere. Defendant told Thomas that he had some trash bags and that he wanted Thomas to cut Kevin's body into pieces small enough to fit inside those bags. Thomas took an axe and, fearing he would be killed if he failed to comply, chopped Kevin's body into at least 10 pieces as defendant looked on.

When Thomas was finished cutting up the body, defendant told him to clean the area and to burn any bloody items. Kevin's clothes, the axe, and some brush were thrown into the burn...

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