People v. Silva
| Decision Date | 10 August 2020 |
| Docket Number | E069863 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DOMENIC DELANO SILVA, Jr., Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed in part, reversed in part with directions.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant, Domenic Delano Silva, Jr., of one count of first degree murder (Pen. Code, § 187, subd. (a))1 and found true the special allegation that he personally and intentionally discharged a firearm, which resulted in the victim's death (§ 12022.53, subd. (d)). The trial court sentenced defendant to consecutive terms of 25 years to life in prison for the murder and 25 years to life in prison for the special allegation.
On appeal, defendant argues: (1) the trial court erred by admitting a rap video featuring him; (2) the trial court erroneously allowed the prosecution to ask a police detective about whether defendant was a gang member; (3) the trial court failed to give a limiting instruction to the jury; (4) substantial evidence does not support his conviction; (5) the trial court erroneously instructed the jury on eye witness credibility; (6) these errors cumulatively require reversal; and (7) his trial counsel was ineffective. Defendant also argues the matter must be remanded for various sentencing issues.
The People agree with defendant that a remand is appropriate as to the resentencing matters, as do we. We reverse defendant's sentence and remand for resentencing. We agree the trial court erred by admitting the rap video, but conclude the error was harmless. We reject defendant's remaining contentions, and otherwise affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2014, police responded to a reported burglary at defendant's residence. Defendant reported that when he had returned home the night before, he noticed his PlayStation and about $1,000 in cash were missing. Defendant gave the officers the PlayStation's serial number, and did not contact the police again.
About seven months later, Emmitt Burns was shot and killed. The backpack he was wearing contained a PlayStation. Its serial number matched the serial number of defendant's missing PlayStation.
About 10 minutes after police were dispatched to respond to the shooting, defendant was pulled over by a California Highway Patrol (CHP) officer for speeding about a mile away from where Burns was shot. Defendant was alone and told the officer he was heading to pick up his girlfriend, who was getting off of work.
The morning after the shooting, Detective Sergeant Andrew Espinoza interviewed M.F., who lived on the second floor of a building near the crime scene. M.F. told Detective Espinoza that she was standing on her balcony, which "provided a clear view" of the crime scene, when she heard several shots. She called 911 and then went downstairs, where she found Burns lying in the street. Detective Espinoza noted the vantage point from M.F.'s balcony and asked her if she looked at the area where the shots came from. M.F. hesitated and said, "I went inside to check on my son."
During her interview, M.F. "was looking around at everybody in the area." Detective Espinoza asked her again whether she looked at the area where the shots came from after they were fired, but she appeared to be "more concerned about who was walking around" the crime scene investigation. Detective Espinoza thought M.F. "was holding back information" and that "she had possibly seen something regarding th[e] shooting," so he stopped questioning her and assigned detectives to come back and talk with her later.
On the same day while investigating an unrelated matter, Detective Espinoza encountered defendant. When defendant was near the investigating officers, he looked up and saw them, but stopped in the middle of the street and stared at them, so Detective Espinoza approached him. They recognized each other from previous contacts. Defendant reminded Detective Espinoza of his name, and they briefly engaged in small talk.
Detective Espinoza told defendant that he was investigating "'the incident that happened last night,'" and asked defendant if he had heard about it. Defendant did not respond, but instead stared off without making eye contact. After about five seconds of silence, Detective Espinoza again asked defendant whether he knew anything about the shooting, and defendant responded by saying, "'I know it's gang related.'" Detective Espinoza was not surprised to learn that the shooting was gang-related because he knew Burns associated with a gang, but he was surprised that defendant acknowledged knowing about the incident. When asked how he knew the shooting was gang-related,defendant did not answer and again stared off without making eye contact. Defendant then said something along the lines of, " " Detective Espinoza again asked defendant how he knew the shooting was gang-related, but they were distracted by the sound of a car's door slamming shut and additional officers arriving. Defendant then said he had to go pick up a family member and left the scene of the incident.
The next day, Detective Reyes went back to M.F.'s apartment and conducted an audiotaped interview. When Detective Reyes told M.F. that he was investigating Burns's murder, M.F. began crying and said she witnessed the entire incident while standing on her balcony. M.F. said she was on her balcony smoking a cigarette with her friend when she saw Burns walking in the street. She had never met him, but she was an acquaintance of his sister. A silver Honda with tinted windows drove past Burns and pulled into M.F.'s apartment complex parking lot "really fast." The passenger exited the car, approached Burns, and started shooting at him repeatedly without saying anything. M.F. described the shooter as a light-skinned Hispanic male, average build, with a short faded haircut, and about 22 years old. He was wearing a big, mostly blue Letterman-style jacket with red and white stripes, and blue, faded washed or blue with white style jeans. She had never seen him before, but thought she would be able to identify him if she saw him again.
The next day, the police conducted a videotaped interview of M.F. Detective Reyes went over M.F.'s statement in more detail because he did not think she wascomfortable talking about the incident the day before. M.F. confirmed what she had previously told Detective Reyes, and added additional details, including that the shooter was "probably" wearing black "Jordan" shoes, and that she thought the gun was a 9-millimeter.
M.F. then met with a sketch artist, who asked her several questions about the shooter's appearance. According to Detective Espinoza, the description of the shooter M.F. provided matched defendant's appearance from Detective Espinoza's encounter with him the day before. Upon seeing the completed sketch, M.F. began crying and said it looked like the man who shot Burns.
A few days later, M.F. was shown a live lineup and two six-pack photographic lineups. M.F. confirmed that the person in the live lineup was not the shooter. Defendant's photograph was in the first six-pack, but M.F. said that someone else looked like the shooter. She did not select any photographs from the second six-pack, which did not have a photograph of defendant. She later informed the police that the photograph she had selected in the first six-pack was not the shooter.
About a week later, M.F. met with Detective Reyes again. M.F. informed Detective Reyes that Burns's brother had contacted her on Facebook and sent her photographs of several people, including defendant, and that she recognized defendant as the shooter. Burns's brother had given the police a picture of defendant, which Detective Reyes showed M.F. Upon seeing the photograph, M.F. said that it was the person who shot Burns. Detective Reyes asked M.F. about the person she had previously identifiedin the first six-pack lineup. M.F. confirmed that that individual was not the shooter and that "there was no doubt in her mind" that defendant was the shooter.
Two weeks after Burns's murder, Detectives Leo Griego and Reyes spoke to defendant at his home, which is near where Burns was shot. Defendant confirmed that he owned a Honda Accord. When asked where he was on the night of the murder, he said he was at home with his girlfriend. He said he did not hear the shooting and did not know anything about it other than seeing police arriving. Defendant then "spontaneously" told the detectives that he had received a speeding ticket on the night of Burns's murder. He stated that he was picking up cough syrup for his grandmother and that he had lied to the officer who pulled him over that he was picking up his girlfriend from work.
When asked about his PlayStation, defendant said that he knew that R.C. had stolen it. He said he was not mad about it anymore because R.C.'s brother paid him back for it. However, R.C. and his brother denied knowing anything about defendant's PlayStation or paying him any money for it.
C.L. owned the same gun as defendant and fixed defendant's gun when it had a problem. About two months later, C.L. and defenda...
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