Filed 6/30/15 P. v. Silva CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049584

            v.                                                         (Super. Ct. No. 09CF2351)

GILBERTO CRUZ SILVA,                                                   OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed.
                   Gregory L. Cannon, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy
Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              One night, defendant Gilberto Cruz Silva picked up a prostitute, promising
to pay her to have sex with him. After parking the vehicle, defendant produced a knife
and forced her to engage in sexual intercourse. She freed herself by convincing defendant
to let her get out of the vehicle to urinate. Defendant then picked up T.P., another
prostitute, using the same ruse. But T.P. was also armed with a knife and when defendant
tried to force her to have sex, a struggle ensued. Both of them were cut and T.P.
additionally suffered face and head injuries. Defendant’s injuries resulted in his
hospitalization. In subsequent interviews, both before and after the police advised him of
his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]
(Miranda), defendant acknowledged the events that lead to his injuries.
              A jury convicted him of forcible rape, assault with the intent to commit
rape, and making criminal threats. It also returned true findings that defendant used a
knife in committing the first crime and inflicted great bodily injury in committing the
latter two offenses. He received a 24-year determinate prison sentence with a consecutive
indeterminate term of 15 years to life. In his first appeal, we affirmed defendant’s
conviction, rejecting a claim the admission of his statements to the police violated his
Miranda rights. However, we agreed the trial court had failed to conduct a hearing to
resolve defendant’s complaint that his court appointed attorney, a deputy public defender,
failed to adequately represent him and remanded the matter for a hearing under People v.
Marsden (1970) 2 Cal.3d 118.
              On remand, the Office of the Public Defender declared a conflict of
interest, thus rendering defendant’s Marsden hearing moot. The Alternate Public
Defender was appointed to represent defendant. It filed a motion for a new trial, asserting
the Public Defender had a conflict of interest and failed to provide effective assistance of
counsel at trial. After an evidentiary hearing, the trial court denied the motion and
reinstated the previously imposed sentence.



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               Defendant again appeals, challenging the denial of his new trial motion and
repeating his Miranda claim. Finding no error, we affirm.


                                        DISCUSSION


               In his motion for a new trial defendant itemized the grounds as follows: “i)
trial counsel’s performance fell below the standard of care in that he failed to present a
coherent defense, including preparing the [d]efendant to testify, that he failed to impeach
material witnesses, and that he failed to present DNA evidence that could have been
argued for acquittal on the most serious offense, forcible rape . . .; and (ii) that trial
counsel had a conflict of interest during the trial on the matter with the victim of Count 2,
T[.]P., because his office represented her on a current prostitution case, . . . for which she
was still on probation at the time of trial. As to both claims, the [d]efendant’s right to
effective representation was prejudicially affected, under the Federal and State
Constitutions.”


1. The asserted conflict of interest.
               Defendant never asserted Stephen Daniels, the deputy public defender who
represented him also represented T.P. The contention was based on the assertion the
Office of the Public Defender represented her. Although defendant contends this
representation was contemporaneous, the record is unclear. The prosecution asserted T.P.
first appeared represented by a deputy public defender on May 12, 2010, and that this
was the only time the public defender had appeared for her. In subsequent appearances,
T.P. appeared in pro. per. or was represented by private counsel. Defendant’s trial started
on November 17, 2010. But whether the representation was contemporaneous or
successive, Daniels was unaware his office was representing or had represented T.P. He
testified during the hearing on the motion for new trial that he did a conflict check when

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first appointed to represent defendant. He found no conflict and stated he had “no idea
whether or not somebody from [his] office currently represented or previously
represented one or both of the victims in this case.” The trial court accepted this
testimony as true; this “express factual finding is supported by the evidence and is
binding on appeal.” (People v. Peyton (2014) 229 Cal.App.4th 1063, 1080; People v.
Holly (1976) 62 Cal.App.3d 797, 804.)
               Defendant attributes what he contends is inadequate cross-examination of
T.P. to the asserted conflict of interest. If Daniels was unaware of any conflict, this hardly
could have motivated him to pull his punches during the cross-examination.
               Furthermore, we apply the rule of Strickland v. Washington (1984) 466
U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]; defendant must show “a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been
different.” (People v. Almanza (2015) 233 Cal.App.4th 990, 1003.) This analysis is
identical under either of the theories urged by defendant.


2. The asserted inadequate representation.
               2.1 Alleged failure to permit defendant to testify
               One of the contentions supporting the inadequate representation claim is
that Daniels failed to permit defendant to testify. Here again, we are bound by the
findings of the trial court. (People v. Peyton, supra, 229 Cal.App.4th at p.1080.) Daniels
testified during the hearing on the motion for a new trial that he lacked specific
recollection of talking to defendant about his testifying, but he described his practice: “I
do essentially tell every single client I have that they have a right to testify, that it is
entirely their right, it is . . . independent of me.” And, “I absolutely would have told him.”
               Defendant acknowledged he had a “[b]ad memory” of his representation by
Daniels because of the passage of time, but claimed he had wanted to testify and Daniels



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told him not to. As to this contention, the trial judge stated at the hearing on the new trial
motion, it had an “independent recollection” of getting defendant’s waiver of his right to
testify. “There’s no doubt in this court’s mind that the court did properly inquire of Mr.
Silva and gave Mr. Silva every opportunity to express with this court – independent of
what his attorney may have told him or not told him, to express to this court an
understanding of the advantages and disadvantages of testifying. It was clear when I
asked Mr. Silva that he had had a discussion with Mr. Daniels about the advantages and
disadvantages. The court gave Mr. Silva the opportunity to ask the court any questions of
the court if he was confused or didn’t understand anything. [¶] When the day was done, it
was abundantly clear that Mr. Silva made a knowing and voluntary and conscious
decision not to testify in this matter.” We reject defendant’s contention that the reason he
did not testify was the result of Daniels’ inadequate representation.


               2.2 Defense counsel’s conduct of the trial
               In the motion for a new trial, defendant contended Daniels failed to both
impeach material witnesses and present DNA evidence. “In considering a claim of
ineffective assistance of counsel, it is not necessary to determine ‘“whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.”’ [Citation.] It is not sufficient to show the alleged errors may
have had some conceivable effect on the trial’s outcome; the defendant must demonstrate
a ‘reasonable probability’ that absent the errors the result would have been different.
[Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
               Here there was no such “reasonable probability,” particularly because
defendant’s statements to the police, which were admitted, fully corroborated the
testimony of the victims. The following summarizes relevant portions of defendant’s

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statement, given after he received the appropriate warnings under Miranda: Defendant
arrived home from a visit to a club in Riverside with his sister and others. His
companions went to sleep but he wanted sex. Because he did not have any money, he
decided to take a cooking knife so he could scare a “girl,” the term he used throughout to
describe his victims. He picked up a girl near a fast food restaurant. She got into his green
Chevy Astro van and told him she wanted $60. He drove the van to a parking area near a
mobile home park. After the two of them moved to the back seat, she asked for her
money; he told her he did not have any and showed her the knife, which scared the girl.
Defendant then described having sex with the girl. Defendant claimed he used a condom
but did not ejaculate. The girl then escaped after telling him she had to go outside to
urinate, leaving her purse in the van because she was afraid. He acknowledged believing
the girl was scared he might stab her the whole time the two were having sex.
              Defendant then related his treatment of the second victim, T.P. After the
first girl ran away, defendant returned to the same street and found T.P. who offered to
have sex with him for $60. She entered his van and defendant returned to the same
parking area where he had engaged in sexual relations with the first girl. Again, when
asked for the promised money, defendant told her he did not have money and showed her
the knife. Then the girl also produced a knife and a struggle ensued. Both were cut in the
fight.
              In light of this detailed confession, we fail to find a reasonable probability
the result of the trial would have been different had Daniels asked additional questions
during his cross-examination of the victims which defendant now suggests or if he had
presented DNA evidence.


3. The Miranda issue.
              In the opinion issued for the prior appeal, we determined the trial court did
not err in admitting defendant’s pre-Miranda statements. This opinion is final and our

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decision is law of the case. “[A]pplication of the law-of-the-case doctrine is appropriate
where an issue presented and decided in the prior appeal, . . ., ‘was proper as a guide to
the court below on a new trial. [Citation.]’” (People v. Boyer (2006) 38 Cal.4th 412, 442.)


                                      DISPOSITION


              The judgment is affirmed.



                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




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