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People v. Silva

Court of Appeal of California
Sep 5, 2008
E042763 (Cal. Ct. App. Sep. 5, 2008)

Opinion

E042763

9-5-2008

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

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.

Not to be Published


Defendant, Raul Augustine "Rudy" Silva, was convicted by a jury of attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a)), residential burglary (§ 459), criminal threats (§ 422), two counts of assault with a firearm (§ 245, subd. (a)(2)), and possession of a firearm by a felon. (§ 12021, subd. (a).) He received a sentence of 147 years to life and appeals the conviction, challenging the trial courts order excluding expert opinion testimony relating to the reliability of eyewitness testimony. We affirm the conviction but reverse the sentence.

BACKGROUND

Although the victim first met the defendant in 1993, she dated defendant beginning in May of 2003. Approximately three months into the relationship, she realized she did not care as much for him as he did for her. Defendant was becoming a little too possessive and jealous. She informed defendant she just wanted to be friends with him. Defendant appeared to take the news well, but continued to act as if they were still a couple. The victim and defendant broke up several more times, but resumed the relationship.

In October or November of 2003, defendants jealousy and possessiveness took a more violent turn. He slapped, socked and choked her, and threatened to kill her and her family in front of her grandfathers house on one occasion, and, on another occasion, yelled at the victim, smacked a plate of food out of her hand, and yelled at other family members at dinner at the grandfathers house.

Also in November 2003, the victims sister, Tania, met defendant, when the victim brought him to the house the victim shared with her sister. Sometime in January 2004, the victim attempted to permanently terminate the relationship with defendant, refusing to take his calls. Around that time, defendant called Tanias number demanding to speak with the victim, but was told he couldnt. Defendant informed Tania he was so hurt he felt suicidal.

On approximately January 30, 2004, when Tania was stopped in her car at a train crossing, defendant pulled up alongside and demanded to know where the victim was. Defendant became angry when Tania told him she stayed at home, and, when Tania and her passenger tried to talk to him, he threatened to kill the passenger. Tania made a quick U-turn and drove away, but defendant followed, pulled up along the drivers side of Tanias car, and flashed a gun at Tania and her passenger.

Late that same night, or early the next morning, Tania awoke to find defendant trying to awaken the victim, hitting the victim in the head with the butt of a gun. He knocked the victim onto the ground and repeatedly hit her in the head with the gun, while also kicking and yelling at her. Defendant fired two rounds toward the victims upper body which caused her to bleed from her ear. The victim curled herself into a ball on the floor while defendant stood over her, hitting her with the gun and kicking her.

Defendant dragged the victim out of the bedroom, while continuing to kick and hit her in the head with the gun. Eventually, the victim ran outside, followed by the defendant who was still carrying a gun. The victim slipped on the grass, landing face down. The defendant tripped and fell over her, got to his feet, and shot her twice in the head. Two witnesses observed the shooting.

The victim survived the shooting, but spent two months in the hospital and required substantial rehabilitation and assistance. One bullet remained lodged in her neck at the time of trial, she lost all hearing in her right ear and her memory was affected by the injuries.

Charges were brought against the defendant. On December 20, 2006, a jury returned verdicts convicting defendant of attempted premeditated murder (§§ 664, 187, count 1), residential burglary (§ 459, count 2), criminal threats (§ 422, count 3), two counts of assault with a firearm (§ 245, subd. (a)(2), counts 4, 5), and being a felon in possession of a firearm. (§ 12021, subd. (a)(1), count 6.) The jury found that during the commission of the attempted murder, he had discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), that during the commission of counts 2, 3, 4 and 5, he personally used a handgun (§12022.5, subd. (a)), and that he inflicted great bodily injury during the commission of the burglary.

On December 22, 2006, a court trial was held regarding the truth of four prison prior allegations (§ 667.5, subd. (b)), three alleged serious felony convictions (§ 667, subd. (a)), and three alleged serious or violent felony prior convictions. (§ 667, subd. (e)(2)(A).) The court made a true finding as to all the prior conviction allegations. Defendant was subsequently sentenced to an aggregate term of 147 years four months, in state prison. He appeals.

DISCUSSION

We address two issues. First, defendant challenges the trial courts denial of his motion to admit expert testimony regarding the unreliability of eyewitness identification. Second, we address an error in the sentence calculation.

1. The Trial Court Did Not Abuse Its Discretion in Excluding Expert Testimony on the Unreliability of Eyewitness Identification.

Defendant argues that because there was no physical evidence linking appellant to the charged offenses, eyewitness identification was clearly an "element of the prosecutions case." (People v. McDonald (1984) 37 Cal.3d 351, 377.) We disagree.

A trial court has broad discretion in making a decision to admit or exclude expert testimony on the psychological factors affecting eyewitness identification. (People v. Sanders (1995) 11 Cal.4th 475, 508-509.) Its ruling will be reversed on appeal only where the record reveals an abuse of discretion. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1205.)

In addition to demonstrating error, defendant is required to establish prejudice. The defendant did not present an alibi defense, he made an inculpatory statement when arrested, he was independently identified by a witness who was personally familiar with him, there was evidence of prior acts of violence against the same victim and Tania, and evidence the defendant had made threats to kill her on more than one occasion. The prior acts of domestic violence, which were admitted under Evidence Code section 1109, constitute independent evidence to support the identification of the defendant as the perpetrator of the incident. This propensity evidence is independent of the eyewitness identification and corroborates the reliability of the eyewitness identification.

Further, defense counsel acknowledged that Tania knew defendant before the photographic lineup and she picked his photo because she knew him. Familiarity with the defendant is one of the factors bearing on the reliability of eyewitness identification. (See, People v. Hoiland (1971) 22 Cal.App.3d 530, 541.) Eyewitness identification is defined as the "[t]ype of evidence by which one who has seen the event testifies as to the person or persons involved from his own memory of the event." (Blacks Law Dict. (6th ed. 1990) p. 589, col. 2.)

Tania did not identify defendant from her memory of the event; she identified him from her personal knowledge of his identity from his past relationship with the victim, Tanias sister. Tanias familiarity with the defendant was an independent factor corroborating the identification. (See CALCRIM No. 315.) Even if an expert had testified to the unreliability of eyewitness testimony, no different result was possible in this case.

There was no abuse of discretion in excluding the expert testimony.

2. The Consecutive Terms for the Gun Use Enhancement to Counts 4 and 5 Must Be Modified.

We requested supplemental briefing to determine whether section 1170.1, subdivision (a) applies to consecutive gun use enhancements imposed on a defendant who has been convicted of multiple offenses as a third striker.

The court sentenced the defendant under section 667, subdivision (e)(2)(A)(ii), as a third striker. As to count 3, the court imposed an indeterminate term of 25 years to life for the offense of criminal threats, along with a four-year enhancement for gun use under section 12022.5, subdivision (a), to run consecutive to count 1. However, for counts 4 and 5, the court imposed a consecutive indeterminate term of 25 years to life for two separate assault with a deadly weapon convictions (§ 245, subd. (a)(2)), but calculated the firearm enhancements (§ 12022.5, subd. (a)) as to those counts at one-third the middle term, adding only one year four months to the respective indeterminate terms.

Defendant argues that the gun use enhancement is a determinate term, subject to the sentencing provisions of section 1170.1, subdivision (a). He argues the enhancement to count 3 should be reduced accordingly to one-third the middle term, or one year four months. Respondent, citing People v. Felix (2000) 22 Cal.4th 651, argues that the one-third limitation in section 1170.1, subdivision (a), does not apply to section 12022.5 gun use enhancements attached to an offense that carries an indeterminate term of imprisonment. (Felix, supra, at pp. 657-559.) When a firearm use enhancement is appended to a crime in which an indeterminate term is imposed, it must be applied at full strength because the fact that the enhancement is determinate does not render it subordinate within the meaning of section 1170.1. (People v. Lyons (1999) 72 Cal.App.4th 1224, 1229.)

While respondent argues the trial court correctly imposed a four-year term for the gun use allegation as to count 3, it does not request modification or resentencing as to counts 4 or 5. Under the holding of People v. Felix, supra, the court erred in calculating the terms for the enhancements to counts 4 and 5. We cannot determine how the trial court would have sentenced defendant if it had been aware it could not impose one-third the middle term for the consecutive enhancements. We note that the trial court lacks discretion to strike, stay, or dismiss a personal firearm use enhancement under section 12022.5, subdivision (c). (People v. Herrera (1998) 67 Cal.App.4th 987, 993, 994.)

Rather than order a modification of the sentence here, in the interest of fairness to both parties, we will remand for resentencing.

DISPOSITION

The sentence is reversed and the matter remanded for resentencing. In all other respects, the judgment is affirmed.

We concur:

Ramirez, P. J.

Hollenhorst, J. --------------- Notes: Except where indicated, all further statutory references are to the Penal Code.


Summaries of

People v. Silva

Court of Appeal of California
Sep 5, 2008
E042763 (Cal. Ct. App. Sep. 5, 2008)
Case details for

People v. Silva

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAUL AUGUSTINE SILVA, Defendant…

Court:Court of Appeal of California

Date published: Sep 5, 2008

Citations

E042763 (Cal. Ct. App. Sep. 5, 2008)