Opinion
F086176
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. SILVESTRE AMADOR, JR., Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Nos. 17CR-02846A, 22CR-05159D. Carol K. Ash, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following a no contest plea that disposes of all issues between the parties.
STATEMENT OF THE CASE
On May 31, 2017, appellant Silvestre Amador, Jr., along with codefendants Richard Medeiros and Eduardo Trujillo, were charged by indictment in Merced County case No. 17CR-02846A with the attempted murder of F.C. on December 24, 2016 (Pen. Code, § 664/187, subd. (a); count 1). The indictment further charged all three defendants with shooting at an occupied motor vehicle (§ 246; count 2) on the same date and charged Amador and Trujillo with unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3). Medeiros was charged with unlawful possession of a firearm by a prohibited person (§ 29820, subd. (b); count 4). Counts 1 and 2 were alleged to have been committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(4)(B) &(b)(5)); as to these two counts, the indictment further alleged that a principal personally and intentionally discharged a firearm, proximately causing great bodily injury or death to F.C. (§ 12022.53, subds. (d) &(e)(1)(A)).
Medeiros and Trujillo are not parties to this appeal.
All statutory references are to the Penal Code unless otherwise stated.
On October 6, 2022, Amador, along with Fernando Sigala, Clemente Cardenas, and Fernando Manzo, was charged by indictment in Merced County case No. 22CR-05159D with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 1) on A.Z. on July 25, 2022, and with street terrorism (§ 186.22, subd. (a); count 2) on the same date. Count 1 of the indictment alleged that each defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
Sigala, Cardenas, and Manzo are not parties to this appeal.
On March 16, 2023, the parties entered into a plea agreement whereby Amador pleaded no contest to attempted murder (§ 664/187) and admitted amended enhancement allegations under sections 12022.53, subdivision (c), and 186.22, subdivision (b)(1)(C) in case No. 17CR-02846A. Amador further stipulated to factors in aggravation. In case No. 22CR-05159D, he pleaded no contest to a violation of section 245, subdivision (a)(4), and admitted an enhancement under section 12022.7. He admitted aggravating factors and stipulated to the upper term of nine years for attempted murder, with a consecutive term of twenty years for the gun enhancement, and a stayed term of ten years for the gang enhancement in case No. 17CR-02846A. He agreed to an unstayed consecutive term of one year in case No. 22CR-05159D, with an additional year for the great bodily injury enhancement. The total agreed upon term for both cases was 31 years.
On March 16, 2023, the court sentenced Amador in accordance with the plea, and as to each case imposed a restitution fine of $300, with the same amount stayed pending successful completion of parole. The court imposed fees under section 1465.8 and Government Code section 70373 as to each case and ordered Amador to pay $176.36 to the Victims Compensation Board. Amador was awarded 2,235 days actual time served and 336 days of conduct credits for a total award of 2,571 days of presentence credits.
On April 26, 2023, Amador filed timely notice of appeal in each case. He did not request a certificate of probable cause. On August 18, 2023, this court granted Amador's motion to construe the notices of appeal to include the following language: "The appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea."
STATEMENT OF FACTS
The factual basis for each plea was taken from the grand jury transcripts in each case. We briefly summarize the evidence.
Case No. 17CR-02846A
T.M. testified at the grand jury proceeding pursuant to a plea agreement. He testified that he had been affiliated with the Nortenos for about 10 years, although he had dropped out, and that Eduardo Trujillo, Silvestre Amador, and Richard Medeiros were also Nortenos. T.M. had been affiliated with Westside Newman, and the other three were all affiliated with Delhi Locos. On December 24, 2016, T.M. drove a car with the other three as passengers to an address in Delhi to "go drive by and see who lives at that house for Eduardo Trujillo." T.M. didn't know if Trujillo knew who lived there; he was told they were going to drive by and see if Surenos lived there. Amador was in the front passenger seat, Medeiros was behind Amador, and Trujillo was behind the driver. All three of them had guns. Medeiros had a .40 caliber "Glock Smith &Wesson," Trujillo had a nine millimeter, and Amador had a .380 handgun.
When they got to the house, the other three told T.M. to stop the car. The other three got out of the car and began firing their weapons at a car parked in the front yard of the house. T.M. never got out of the car. The other three fired until they ran out of ammunition, and then jumped back in the car as the victim rammed the back of T.M.'s car with his vehicle. One of the shooters' guns had jammed after firing two rounds, but T.M. did not remember whose gun jammed.
When T.M. got to the corner and the victim rammed his car, Medeiros flew out of the vehicle because his door was not closed properly. Medeiros said someone in the house had shot him, so T.M. drove him to his mother's house, and then T.M.'s mother took Medeiros to the hospital.
T.M. testified that Medeiros told him that he had been shot when he got out of the car and that he had started shooting because the car tried to run him over. Trujillo told T.M. that he had started shooting at the house and the car. Amador had just started shooting. T.M. testified that the people in his car had started shooting before anyone in the house began shooting back.
F.C. was in the car that was parked at the house and was struck in the hand by a bullet. He had just returned from picking up his young grandson, who was 16 months old at the time of the grand jury proceedings, and who was in the car with F.C. at the time of the shooting, along with his mother. F.C. testified that a total of 17 bullets hit his car. All three men were shooting at the car. He was not able to identify the shooters because it was nighttime. He thought that maybe his nephew had been shooting back at them from the house.
R.C., F.C.'s son, denied that anyone in the house was associated with the Surenos. He did not see anyone at the house go after the shooters.
A sheriff's detective testified that R.C. had told him that one of his cousins, G.C., was a known Delhi Ghost Town Sureno and had been at the house on the night of the shooting.
Case No. 22CR-05159D
A correctional officer from Merced County main jail testified regarding the housing at the main jail in Merced. Inmates were housed according to the risk they posed, and also based on their self-admitted gang affiliation or association. This officer was on duty on July 25, 2021, when another jail employee noticed a physical altercation occurring in one of the cells that housed active Norteno gang members. The inmates housed in that cell block that night were Amador, Fernando Manzo, Clemente Cardenas, Fernando Sigalo, and A.Z. The grand jury was shown a surveillance video which, according to the correctional officer witness, showed A.Z. "throw a strike" at either Cardenas or Sigala. The witness testified A.Z. threw the "first strike." No one in the cell called for help.
The term "strike" was used by the officer witness; we presume he meant a punch of some kind.
When the correctional officer got to the scene and ordered all the inmates to get on the ground, Sigala and Manzo complied, but Amador held up a mattress as a shield while Cardenas continued to assault A.Z. A.Z. was ordered out of the cell and was extremely disoriented. His face was swollen and he seemed to be having difficulty breathing due to the swelling. A medical report, detailing A.Z.'s injuries, which included nasal fractures, was presented to the grand jury.
APPELLATE COURT REVIEW
Amador's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating Amador was advised he could file his own brief with this court. By letter on August 28, 2023, we invited Amador to submit additional briefing. To date, he has not done so.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Amador.
DISPOSITION
The judgment is affirmed.
[*]Before Poochigian, Acting P. J., Pena, J. and Snauffer, J.