People v. Silva
| Decision Date | 28 December 2012 |
| Docket Number | B225127 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESSE SILVA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed in part, vacated in part, and remanded with directions.
Sharon Fleming, 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, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jesse Silva appeals from the judgment entered following his convictions by jury on two counts of first degree murder (Pen. Code, § 187;1 counts 1 & 3), each with a multiple murder special circumstance (§ 190.2, subd. (a)(3)) and a gang special circumstance (§ 190.2, subd. (a)(22)), and on count 4 - attempted willful, deliberate, and premeditated murder (§§ 664,187) with, as to each of the above offenses, findings appellant personally, and a principal, used a firearm, intentionally discharged a firearm, and intentionally discharged a firearm causing great bodily injury or death (former § 12022.53, subds. (b), (c), (d) & (e)(1)).
Appellant also appeals from the judgment entered following his convictions by jury on count 2 - discharge of a firearm with gross negligence (§ 246.3, subd. (a)) and count 5 - assault with a firearm (former § 245, subd. (a)(2)) with personal use of a firearm (former § 12022.5, subd. (a)).
The jury found each of the above offenses was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)), and the trial court found appellant suffered a prior felony conviction (§ 667, subd. (d)). The trial court resentenced appellant to prison for life without the possibility of parole, plus 80 years to life.2 After reconsideration of the matter in light of Miller, supra, 567 U.S. __ , a decision the trial court did not have the benefit of, we affirm the judgment in part, vacate the judgment in part, and remand the matter for resentencing with directions.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established in about 2005, Jovani Leiva met appellant, Michael DeLeon, and Marco Flores in Branford Park in Los Angeles County. Leiva knew appellant as Cholo (the Spanish word for gangster), DeLeon as Dreamer, and Flores as Diablo. Leiva knew DeLeon was a member of the Pacoima Trece (PT) gang and Flores was a member of the Orcas gang.
During the late hours of June 15, 2007, Leiva drove his car about two miles from Branford Park to a party at a house or apartment building at 12462 Osborne in Los Angeles County. The car had four passengers: appellant, DeLeon, Flores, and someone named Lalo. About 10:00 p.m., Leiva parked around the corner from the party. The party was being held in a gated area outside the house. While Leiva and Flores were walking to the party, Leiva saw the handle of a gun protruding from Flores's waistband.
The above five persons were joined by a sixth, and the group approached the gate. However, prior to entry, guests were required to submit to a patdown weapons search conducted by Albert Molina (a decedent) and David Delgado. Appellant and three companions refused to be searched and became boisterous. They yelled "Fuck Vineland" and "Veggies." Veggies was a derogatory term for the Vineland Boys gang. DeLeon yelled "Paca Trece" and Flores yelled "Orcas."
Appellant had one hand inside his shirt near his waist and his other hand holding a 40-ounce beer bottle. He was aggressive and told Delgado, "We are going to get in." Delgado replied, "no, you are not." Appellant threw the bottle at the gate, breaking the bottle. Appellant punched one of the people conducting the search and the gate was closed.
Leiva saw Flores remove a black revolver from his waistband and hand it to DeLeon. Leiva saw DeLeon fire the revolver three to five times in the air. Delgadotestified it was appellant who fired the gun in the air, and appellant fired the gun once or twice. According to Leiva, appellant grabbed the gun from DeLeon and fired it three to five times towards the gate and crowd. When the shooting occurred, appellant, DeLeon, and Flores were saying their gang names. Before and during the shooting, the three were calling out gang names, including Pacoima. A bullet struck Molina in the chest, killing him.
After the shootings, Leiva, appellant, DeLeon, Flores, Lalo, and someone named Dan ran to and entered Leiva's car. Leiva drove, Flores was in the front passenger seat, and the rest were in the backseat. Leiva was driving them to Branford Park while they were trying to empty the gun. Flores took bullets from the barrel and threw them out the front passenger window. Leiva dropped off everyone at the park. At 1:10 a.m., on June 16, 2007, police arrived at the shooting scene. No bullet casings were present, a fact consistent with use of a revolver.
Los Angeles Police Officer Michael Yoro, a gang expert, testified PT was a criminal street gang. Paca was a shortened version of Pacoima. The addresses of 12462 Osborne and 8737 Roslyndale were in territory claimed by PT. PT members congregated at Branford Park. The Vineland Boys gang and Sanfer gang were rival gangs that PT hated the most. Appellant's driver's license reflected he had drawn a line through the letter V in his name. This indicated appellant perceived the Vineland Boys gang as his enemy. DeLeon and Flores were PT members.
Yoro opined it was not uncommon for members of the Pacoima Cayuga Street Locos (PCSL) gang to be friendly with PT members. If a PCSL member kept company with a PT member, it would not be unusual for the PCSL member to claim membership in PT before committing crimes. Disrespect towards a gang or gang member would not go unanswered, and the result could range from assault to homicide. The prosecutor posed a hypothetical question which essentially was based on evidence as to the killing of Molina and, in response, Yoro opined to the effect the Molina killing was committed for the benefit of, at the direction of, or in association with, PT. The killing was retaliation for persons preventing "members of our gang in which is a [PT] gang" (sic) from entering aparty in their own neighborhood and territory and daring to search them knowing they could be armed.
On June 8, 2008, before 1:30 p.m., Johnny Lopez (a decedent) and Marvin Maldonado were drinking near Branford Park. They finished drinking about 12:50 p.m. About 1:30 p.m., they encountered appellant standing in the driveway of his home at 8737 Roslyndale in Arleta. Lopez approached appellant and asked where he was from. Appellant replied he was from PT. Lopez asked, " 'So that's what's up?' " Appellant indicated he recently had been released from juvenile hall and was having difficulty adjusting to society. After talking with appellant for no more than five minutes, Lopez and Maldonado left. Lopez returned to appellant and told him that he never asked Lopez where Lopez was from. Lopez and Maldonado again walked away.
After walking about 200 feet from appellant's house, Maldonado saw appellant in the street riding a bright-colored bicycle towards them. The bicycle was probably blue. It was depicted in a photograph, People's exhibit No. 3. Lopez entered the street and approached appellant, who had stopped in the street. Maldonado testified Lopez said to appellant something to the effect Lopez "had spoken with his brother and that everything was cool."
During direct examination of Maldonado, the prosecutor began a question by commenting Maldonado had testified that after the defendant was on his bicycle, Lopez told "the defendant [appellant] . . . that he just talked to his brother." Maldonado interrupted the prosecutor, stating, "I knew it was him." The prosecutor asked if Maldonado knew "it was the same defendant" and Maldonado replied yes. Maldonado knew "it wasn't some other guy. . . ."
Appellant asked Lopez where Lopez was from, and Lopez replied San Fer. Maldonado testified appellant then removed a silver semiautomatic handgun with a black grip from his waist, brandished the gun, and shot Lopez about six times. Lopez in fact sustained four gunshot wounds and was mortally wounded. Appellant turned the guntoward Maldonado and brandished it towards him. Maldonado fled. Appellant shot him in the back. During the shootings, appellant was wearing a white T-shirt, blue jeans, and a black glove on his left hand, the hand which held the gun. After the shootings, appellant rode away on the bicycle.3
About 1:30 p.m., on June 8, 2008, Heldrych Castillo was in his bedroom when he heard five or six gunshots. About a minute later, he looked out his window and saw a male juvenile quickly pedaling a bright blue BMX bicycle on Truesdale towards Canterbury. The juvenile was wearing a black glove on his right hand, which was holding a small silver handgun. Castillo went outside and saw a gunshot victim lying in the street. Castillo called 911 and described the shooter as a bald Hispanic wearing a white shirt and riding a blue bicycle. Jesus Ayungua, appellant's cousin, told a detective that on an...
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