Filed 6/15/15 P. v. Silva CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068068

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FCH1200198)

JOSHUA SILVA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Stanford E. Reichert, Judge. Reversed.

         Marcia R. Clark, 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 and Heather M. Clark, Deputy Attorneys General, for Plaintiff and

Respondent.
          A jury convicted Joshua Silva of second degree murder (Pen. Code,1 § 187,

subd. (a)). The jury also found true an allegation that Silva personally discharged a

firearm causing death (§ 12022.53, subd. (d)). The court found true one serious felony

prior conviction (§ 667, subd. (a)(1)) and one strike prior (§ 667, subds. (b)-(i)).

          The trial court sentenced Silva to an indeterminate term of 60 years to life in

prison.

          Silva appeals contending the trial court prejudicially erred in admitting uncharged

acts pursuant to Evidence Code section 1103, subdivision (b), and that the court failed to

properly respond to the jury when it asked questions about the prior acts and Silva's

criminal history (§ 1138).

          In this case, the court admitted questions on cross-examination of Silva related to

an alleged assault on his girlfriend several years prior to the events in this case, although

the "crime" was never charged and no testimony was given regarding the alleged assault.

The court also allowed questions regarding a previous case in which Silva was charged

with attempted murder, where the case was tried twice resulting in hung juries and a

judge ultimately dismissed the case. Again, there was no testimony regarding the facts of

the alleged crime. In short, there was no showing of relevance of the "prior acts" except

an argument that they were relevant to show Silva's character trait for violence.

          When the jury, by its questions, demonstrated serious confusion about the import

of the "acts" and a gross misunderstanding of the alleged acts and Silva's criminal history,

the trial court declined to take any action to clarify the jury's patently prejudicial

1         All further statutory references are to the Penal Code unless otherwise specified.
                                                  2
confusion regarding such "evidence." Thus, we will conclude the trial court erred in

allowing questions about the alleged acts and compounded the error when it failed to

clarify the jury's misunderstanding. Accordingly, we will reverse the conviction.

                               STATEMENT OF FACTS

       Silva does not challenge the sufficiency of the evidence to support his conviction.

Nor does he challenge the admissibility of the evidence, with the exception of questions

asked regarding the alleged prior acts. Therefore only a summary of the facts of the case

is necessary to provide context for the discussion which follows. For the sake of

convenience we will adopt the factual summary from the respondent's brief.

                             The Prosecution's Case-in-Chief

                                A. Joel Rendon's Murder

       In the late evening of May 27, 2012, appellant walked into a 7-Eleven store in

Chino. He was wearing a black Washington National's hat, a Dallas Cowboy's jersey, a

pair of Dallas Cowboy gloves, and had a concealed handgun on his person. It was not

cold that evening.

       Appellant approached Jenaro Rodriguez, who was in the 7-Eleven to buy

cigarettes, and said that he was not from the area and was looking for something to eat.

Rodriguez told him there was a Jack in the Box about a quarter of a mile west of the

7-Eleven and a Del Taco close by, just east of the 7-Eleven. After appellant left the

7-Eleven, Rodriguez got into the car with his friend, Enrique Gomez. As Gomez drove

away, he heard three gun shots and Rodriguez heard two. When Gomez turned to look,

he saw appellant, who was holding a gun with his arm fully extended, and the victim,

                                             3
Joel Rendon, who was falling to the ground. The two men appeared to be facing each

other2 and were standing about three to four feet apart. Gomez did not see anything in

either of Rendon's hands. Both Rodriguez and Gomez saw appellant run immediately

after the gun shots.

       Around the time that appellant was at the 7-Eleven, Rendon and his friends and

family, including Bryan Moe, Porfidia Cervantes, and Brandi Medieros,3 were across the

street at the Donut Avenue restaurant. On his way to Donut Avenue, and also while

there, Rendon complained he had a stomachache. He was not otherwise upset, angry, or

agitated that night, and he did not appear intoxicated. Rendon did not eat at the

restaurant, but Moe bought a Gatorade drink for him.

       Rendon walked out of the restaurant two or three times while his friends and

family ordered food and ate. The apartment building where Rendon lived was across the

street and just slightly to the east of the restaurant. There was also a liquor store across

the street from Donut Avenue. Moe believed that Rendon left the restaurant at one point

to go to the liquor store in order to purchase something for Wally. The dark tint on the

restaurant windows and glare from car headlights prevented anyone from seeing the

sidewalk or street outside through the restaurant windows.

       Seconds after the final time Rendon walked outside of the restaurant, his friends

and family heard gun shots. Several of them ran outside and saw Rendon on the ground,



2      Gomez had consumed approximately 12 beers throughout the day and evening.

3      Mike Malagra and a man named Wally were also at the restaurant with Rendon.
                                       4
lying face up. They saw appellant, who was wearing a jersey, running away in a

northwest direction. Moe saw a gun in appellant's hand. Neither Moe, Cervantes, nor

Medeiros saw anything in Rendon's hands. Their observations were confirmed by police.

                   B. Appellant Fled the Scene and Hid Under a Bush
                                 for Over Two Hours

       Shari Nielson lived approximately one mile north of Donut Avenue. A little after

11:00 p.m., she heard helicopters circling above her house. She also heard her gate rattle.

Nielson called the police at 11:18 p.m. She could see police cars throughout her

neighborhood. Approximately 10 to 15 minutes later, the helicopters flew closer to her

house and shined a light into her neighbor's back patio. As she was watching, she saw

appellant run across her patio and head towards a big bush in her backyard. She called

the police again. She could see appellant − who was wearing only a tank top and jeans −

crouching down under the bush.

       Before the police arrived at her house, the helicopters made announcements telling

residents to stay indoors, that officers on the ground were using police dogs, and urging

the suspect to come out of hiding and find the nearest officer. Police arrived at Nielson's

house at approximately 1:50 a.m. with a police dog. As they searched her backyard, the

dog located appellant under the bush and pulled him out.

                               C. The Murder Investigation

       Officers located appellant's gloves in the driveway leading to the backyard of a

house around the corner from where appellant was apprehended. Officers also found

appellant's jersey hidden between two receptacles next to the garage. A couple of days


                                             5
later officers located footprints that appeared to match the shoes appellant was wearing

the night of the murder, and appellant's gun and magazine buried under the dirt in the

backyard of the house. There was a round in the chamber of the gun, and 12 in the

magazine. The magazine could hold 14 bullets, plus one in the chamber of the gun. Two

expended cartridge cases which had been fired by that gun were found at the crime scene.

       Officers found appellant's hat behind a locked gate at the house next door to the

location where appellant's jersey, gloves, and gun were found.

       A coroner's examination of Rendon's clothing revealed the presence of a four-inch

folding knife in the closed position in his right front pocket. Another knife was found in

the open position in his left front pocket. Neither knife was a switchblade. No blood was

found on either knife.

       Rendon suffered a total of six gunshot wounds, likely caused by two bullets. One

bullet entered and exited through Rendon's abdomen. The bullet path went from left to

the right, was short, and the bullet penetrated the skin and underlying tissue, but not the

abdominal cavity. The shooter was to the left side of Rendon when he was shot in the

abdomen. Rendon suffered another gunshot wound to the little finger on his left hand. A

bullet entered through the top or back of the finger and exited through the bottom or palm

side of the finger. It is possible that the wounds to the abdomen and finger were caused

by the same bullet. The fatal gunshot entered through the left side of the back of his

chest and exited the right side at the base of his neck. The trajectory of the bullet was left

to right, upwards, and back to front.



                                              6
       Rendon could not have been facing the shooter when he suffered the fatal gunshot

wound. The coroner testified that the entry and exit points and the trajectory of the fatal

gunshot wound were consistent with Rendon, having already been shot in the abdomen

and finger, turning to run. He opined that the most likely scenario to explain the upward

and right trajectory of the fatal shot was that Rendon was bent over as he was running.

He further opined it was possible for Rendon to end up lying on his back after being shot

while facing away from the shooter. Rendon's blood level alcohol was .15 and chemical

testing revealed the presence of methamphetamine.

                                     The Defense Case

       Appellant testified on his own behalf. He admitted that he was a member of the

Whittier Varrio Locos gang at the time of the murder. Appellant claimed he knew of the

gang Chino Sinners, but had never encountered any of its members.

       Appellant testified that on the night of May 27, 2012, he was in Chino at a

"gathering" at a friend's cousin's house. He smoked marijuana and took ecstasy.

Appellant was hungry and went to the 7-Eleven. When he arrived, he asked someone

whether there was a Jack in the Box nearby. He was given directions to Jack in the Box

and Del Taco, and he decided to go to Del Taco because it was closer.

       According to appellant, as he walked from the 7-Eleven to Del Taco, Rendon

whistled at him, but he continued walking. Rendon then issued a gang challenge to him

by asking where he was from. Appellant continued walking and said he was not from

around there. He assumed he was in another gang's territory. Rendon then said, "don't be

a little bitch. Where you from?" and appellant continued walking. Rendon then

                                             7
allegedly punched appellant in the back of the head, causing him to stumble forward.

Appellant saw a "shiny object" in Rendon's hand, so he shot him. Rendon fell to the

ground and appellant took off running because he saw people come out of the restaurant

who looked like gangsters. Appellant further claimed that while he ran, he encountered a

truck with people riding inside who he thought were gang members hunting him.

Appellant claimed that he hid in the bushes instead of finding a police officer because he

is a gang member, and he did not think the police would help him after he had just shot

someone.

       On cross-examination, appellant testified that he took ecstasy on his way to the

gathering and that he smoked marijuana while at the gathering just before he walked to

the 7-Eleven. There was food at the gathering, but appellant wanted to eat at Jack in the

Box. Instead of asking someone at the gathering for directions, he walked to the

7-Eleven to ask for directions.

       Appellant wore his Washington National's hat because it had a "W," which

symbolizes his gang. Appellant claimed he wore the gloves as a fashion accessory. He

carried his gun in his pocket, which was fully loaded, and he was prepared to use it to kill

someone if he had to. Appellant has "WVL" and "Black Angels" tattooed on his neck,

which represent his gang and a click within his gang. Appellant denied that the Black

Angels click was comprised of the more violent members of WVL.

       While testifying appellant admitted he had been caught tagging "WVL" on trees in

2005, and that he ran from police and then lied when he was caught; had been served

with a gang injunction in 2008, and had lied to police when he was caught engaging in

                                             8
activities in violation of the injunction; had used drugs in the past, and was illegally in

possession of the gun he was carrying when he encountered Rendon. Appellant also

admitted that he was tried twice regarding the shooting of Raymond Carmona and that he

was not acquitted of the charges.

       Appellant admitted that while he was on the run, he heard the police helicopters

circling overhead and that is when he took off his jersey, hat and gloves. He admitted

that he hid his jersey between two trash cans, and that he disposed of all three items of

clothing in order to avoid being caught by police. He also acknowledged burying his

gun, and that his plan was to hide, avoid detection, and then escape. Appellant further

testified that he did not come out from hiding and tell the police his account of the events

because he doubted they would believe him. Nor did he tell police he acted in self-

defense after he was arrested. Appellant admitted that gang members have a tendency to

lie, and that if his fellow gang members knew he killed someone and got away with it, he

would enjoy greater respect within the gang.

       The parties stipulated that on November 26, 2007, Rendon was convicted of

assault with a deadly weapon, to wit, a knife.

       Appellant also presented evidence from Chino Police Officer Theodore Sutton,

regarding his contacts with Rendon. Sutton told the jury that Rendon was a member of

the Chino Sinners gang. He testified that Donut Avenue is within the Chino Sinners

territory. He further testified that the circumstances of Rendon's 2007 conviction

suggested it was gang related.



                                              9
       On cross-examination, Officer Sutton testified that when Rendon committed the

2007 assault, he was drunk. He further testified that the victim's wound was superficial

and that the victim did not report the crime. Sutton testified that Rendon had not been

convicted of committing any gang-related crimes since 2007.4 Sutton had contacted

Rendon on multiple occasions and Rendon appeared to have developmental issues. He

was slow to comprehend and had difficulty communicating.

                           The Prosecution's Rebuttal Evidence

       Officer Brian Corletto testified as the prosecution's gang expert. He testified that

the Black Angels is a click within Whittier Varrio Locos and it is the most notorious click

within that gang. It is considered to be the most violent, most feared, and most respected.

Black Angels members can enhance their respect by shooting and killing a member of

another gang even if that victim does not belong to a rival gang. Corletto knew appellant

to be a member of the Black Angels.

       Corletto testified that appellant has an extremely violent reputation. His opinion

about appellant's reputation for violence was unchanged even though the officer testified

that appellant had never been convicted of shooting anyone, stabbing anyone, or beating

anyone up. Corletto noted that gang members can commit crimes and not get convicted.

       As impeachment evidence, the prosecution presented a statement that appellant

made during an interview after he was arrested. The day after the murder, appellant was

interviewed at the police station. He told officers that he ran from 7-Eleven because


4       The court admonished the jury that Rendon received a misdemeanor conviction
for resisting arrest in 2009.
                                            10
some "pisas" (Mexican nationals) were running towards him, saying the police were

coming. He wanted nothing to do with the police, so he took off running as well.

                                       DISCUSSION

       Silva raises two related contentions. First, he contends the trial court prejudicially

erred in allowing questions about two different sets of uncharged acts. In the second,

related contention Silva argues the trial court failed in its duty to answer the jury's

questions regarding Silva's criminal history, leaving them with a misunderstanding of

both his criminal history and the nature of the uncharged acts. We will deal with the two

contentions together since the error in admitting evidence of uncharged acts was

compounded by the court's failure to assist the jury.

                                       A. Background

       When the prosecution became aware that Silva planned to testify at trial, it

requested to be permitted to present information about two sets of prior acts. The first set

involved an alleged 2009 assault and robbery of Silva's former girlfriend, Courtney

Laica, which did not result in any criminal charges. The second set involved the criminal

prosecution of Silva for attempted murder in the shooting of Raymond Carmona. The

latter case resulted in two trials, each of which resulted in a hung jury. Ultimately the

Carmona case was dismissed by the trial judge. In this case the prosecution contended

the uncharged acts were admissible under Evidence Code section 1103, subdivision (b) to

demonstrate Silva's character for violence. The trial court overruled the defense

objections and ruled the evidence admissible.



                                              11
      The prosecution did not present any testimony regarding the facts of the alleged

prior acts. No witnesses were called to describe the events. The only testimony was

elicited from Silva on cross-examination. With regard to the Laica acts the prosecutor

asked the following questions:

          "Q: You have a former girlfriend named Courtney Laica, right?

          "A: Yes.

          "Q: And you're aware that she's told the police you're violent,
              correct?

          "A: No.

          "Q: You didn't know that?

          "A: I didn't know that.

          "Q: Would it surprise you to learn that Ms. Laica has told police she
              thinks you're violent?

          "A: Say it again.

          "Q: Would it surprise you to learn that Ms. Laica has told the police
              that she thinks you're violent?

          "A: Yes, it would surprise me.

          "Q: That would surprise you? Would it surprise you if you learned
              that Ms. Laica told police in 2009, that you always carry a gun?
               Would that surprise you?

          "A: No, that wouldn't surprise me.

          "Q: Would it surprise you to learn that your former girlfriend, Ms.
              Laica, told police in 2009 that she knew you were capable of
              killing someone?

          "A: Yes, that would surprise me."


                                           12
      As the People have confirmed in their brief, the prosecutor offered no other

evidence or argument regarding the Laica incident.

      With regard to the alleged shooting of Carmona, the following questions and

answers occurred:

          "Q: That wasn't the first time you shot somebody, is it? 'That'
              referring to the shooting of the victim in this case.

          "A: Yes, that was the first time I shot somebody.

          "Q: You didn't shoot Raymond Carmona in Whittier?

          "A: No.

          "Q: In 2010?

          "A. No.

          "Q: Your counsel referred to you as being acquitted of that?

          "A: Yes.

          "Q: You actually went to trial twice and the jury couldn't reach a
              verdict, right?

          "A: Yes.

          "Q: You weren't acquitted, just couldn't reach a verdict, right?

          "A: The judge said not acquitted.

          "Q: You weren't acquitted by a jury were you?

          "A: I guess. I don't know about that stuff.
          "Q: Do you know what the word acquitted means?

          "A: No, I don't.

          "Q: Okay. If I told you acquitted means 12 people vote not guilty,
              is that what happened?

                                            13
           "A: No. That's not what happened."

       Once again, the People concede the prosecution presented no further evidence or

argument regarding the Carmona case.

       During jury deliberations, the jury requested to hear Silva's "prior records

regarding the armed robbery, assault and two murder trials." After discussions between

the court and counsel the court informed the jury it could not give them any further

information regarding Silva's prior record.

       Following the court's response, the jury asked another question regarding Silva's

record: "the judge stated to us after a side bar what we were to accept as fact regarding

the prior convictions." After conferring with counsel the court responded to the jury that

it "did not give the jury any facts the jury was to accept regarding Mr. Silva other than his

height."

                                    B. Legal Principles

       The court admitted three instances of wrongful conduct. Silva's 2004 conviction

for attempted robbery, which is not contested here; an assault on Courtney Laica in 2009

and the shooting of Raymond Carmona in 2010. The attempted robbery was admissible

as a prior felony conviction. The other two instances were admitted as relevant to the

character trait of violence pursuant to Evidence Code section 1103, subdivision (b).5


5      Evidence Code section 1103, subdivisions (a) and (b) provide: "(a) In a criminal
action, evidence of the character or a trait of character (in the form of an opinion,
evidence of reputation, or evidence of specific instances of conduct) of the victim of the
crime for which the defendant is being prosecuted is not made inadmissible by Section
1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in
                                              14
       When we review a trial court's decision to admit or reject evidence of uncharged

acts we apply the abuse of discretion standard of review. (People v. Kipp (1998) 18

Cal.4th 349, 369; People v. Carter (2005) 36 Cal.4th 1114, 1149.) We will only reverse

the trial court's decision where there is a clear showing the trial court exceeded the

bounds of reason and abused its broad discretionary authority. (People v. Rodriguez

(1999) 20 Cal.4th 1, 9-10.)

       When a court rules on the admissibility of uncharged acts under Evidence Code

section 1103, the court should consider the limitations on admissibility contained in

Evidence Code section 352, in determining whether the probative value of such evidence

is outweighed by its prejudicial effect. (People v. Fuiava (2012) 53 Cal.4th 622, 700;

People v. Riggs (2008) 44 Cal.4th 248, 289-290.)

       When a jury is deliberating and asks the court for assistance, the court must

respond and provide such help as necessary to aid the jury. Section 1138 provides in

part: "After the jury have retired for deliberation, if there be any disagreement between

them as to the testimony, or if they desire to be informed on any point of law arising in

the case, they must require the officer to conduct them into court." Thereafter, the court

must take reasonable steps to assist the jury with their stated questions. It is not sufficient


conformity with the character or trait of character. [¶] (2) Offered by the prosecution to
rebut evidence adduced by the defendant under paragraph (1). [¶] (b) In a criminal
action, evidence of the defendant's character for violence or trait of character for violence
(in the form of an opinion, evidence of reputation, or evidence of specific instances of
conduct) is not made inadmissible by Section 1101 if the evidence is offered by the
prosecution to prove conduct of the defendant in conformity with the character or trait of
character and is offered after evidence that the victim had a character for violence or a
trait of character tending to show violence has been adduced by the defendant under
paragraph (1) of subdivision (a). f which is subject to this subdivision."
                                              15
for the court "figuratively throw up its hands and tell the jury it cannot help." (People v.

Beardslee (1991) 53 Cal.3d 68, 97.)

                                        C. Analysis

       If we analyze this case based only on the questions asked of Silva by the

prosecution, we might lean toward the view that although inadmissible, they could be

deemed harmless. The jury was aware of Silva's gang involvement, his prior conviction

for attempted robbery and his own admission he always illegally carried a gun and was

prepared to use it in his defense. Silva admitted the shooting, which he claimed was in

self-defense. However, as we will discuss, the jury fixed its attention on the prior

conviction and the alleged conduct involving Carmona and Laica. It demonstrated a

profound misunderstanding of the record and the alleged acts, which misunderstanding

was never clarified by the trial court. We cannot find the error here to be harmless.

                                       Admissibility

       In order to be admissible, evidence of prior acts to prove character under Evidence

Code section 1103, subdivision (b), must have a tendency in reason to prove the disputed

character trait, in this case, violence. Once relevance is established, the court must apply

Evidence Code section 352 to evaluate its probative value and its prejudicial effect.

Here, we seriously doubt the material actually introduced was relevant or had any

probative value.

       Dealing first with the questions about Courtney Laica. There was no foundational

evidence introduced to explain why the fact that Silva may or may not be surprised by

Laica's comments about him was probative of his character for violence. Laica did not

                                             16
testify and thus did not offer any opinions on Silva's character. On this record we have

no idea what she may have said to police or what her actual opinion might have been.

However, the nature of the questions assumes she did make reports and did offer an

opinion about Silva's character for violence. The presence or absence of Silva's surprise

proved nothing, but did imply something "might" have happened, without providing the

jury with any idea of the context of any comments by Laica, and certainly did not provide

the jury with any basis to intelligently evaluate this "evidence." When the prosecution

made its in limine motion, it may have intended to present admissible evidence with

some foundational basis. We do not know what happened between the pretrial stage and

the defense case, but the material ultimately presented had virtually no probative value.

       Turning next to the questions regarding the shooting of Carmona, again no

foundational facts were presented to provide a basis for admissibility. Silva was

apparently charged with the shooting, however, after two trials the prosecution could not

obtain a conviction and a judge dismissed the case. However, nothing was presented to

the jury in this case to show how the fact of charges, two trials and two hung juries

proved anything regarding Silva's character for violence.

       Aside from the lack of probative value, there was a more pernicious side to the

presentation on this issue. The prosecutor was at pains to establish the Silva was not

acquitted. Indeed the point was forcibly made that not all 12 people in either trial voted

to acquit. The case was merely dismissed. The obvious inference the prosecution sought

from such questions is that somebody believed he had committed the shooting. Of course

we have not the slightest idea of who believed what or what the facts surrounding the

                                            17
unsuccessful prosecution might have been. Thus the prosecution achieved an inference

of factual guilt without any proof at all.

       Again, the prosecution may have had other plans at the outset of the case, but the

way the issue was presented to the jury provided no probative evidence, but did create the

potential for prejudice.

                                             Prejudice

       As we have indicated, Silva argues the trial court breached its duty under section

1138 by failing to answer the jury's questions about Silva's prior record. While we agree

the court had a duty to correct the jury's misperception, we discuss this point as an

indicator of prejudice stemming from the improper admission of other act evidence. We

agree the court here did literally throw up its hands and do nothing to aid the jury.

(People v. Beardslee, supra, 53 Cal.3d at p. 97.)

       The question presented by the jury included a reference to an armed robbery, and

assault and two murder trials. Of course, there was no evidence of an armed robbery,

although Silva admitted a conviction for attempted robbery. There was no "evidence" of

an assault and certainly no evidence of two "murder" trials. Carmona was not killed,

although the jury apparently got that impression.

       While we appreciate that the attorneys could not agree on how to deal with the

jury question, in the last analysis, it was the court's responsibility to respond. Clearly the

jury could have at least been disabused of its erroneous assumptions. However, they

were left with the court's response that there was nothing it could add. Logically, the jury

would think their assumptions were correct.

                                                18
       All of this takes us back to our preliminary comments. The questions standing

alone had no probative value, and some clear potential for prejudice. Given the vast

prejudice of the gang evidence and Silva's admission that he killed the victim and that he

illegally carried a firearm, there might have been a basis for a harmless error discussion.

However, this is one of the rare cases where we know the jury focused on the prior acts

and record. We know the jury seriously misunderstood the nature and import of the

material and their misunderstanding was never corrected. On this record we are satisfied

the combined errors of admitting improper evidence and the court's failure to properly

respond to the jury can only support a finding of prejudicial error.

                                      DISPOSITION

       The judgment is reversed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:


                  McDONALD, J.


                         IRION, J.




                                             19
