Wednesday, January 2, 2013
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Court Overturns Teenager’s Life-Without-Parole Sentence
By KENNETH OFGANG, Staff Writer
This district’s Court of Appeal has ordered a new sentencing hearing for a teenager serving life imprisonment without possibility of parole for two gang-related murder.
Div. Three, which had affirmed Jesse Silva’s conviction and sentence for the murders of Albert Molina and Johnny Lopez in May, only to have the case remanded by the California Supreme Court, which ordered the sentence reconsidered in light of Miller v. Alabama, (2012) 132 S.Ct. 2455. Miller struck down a statute mandating a life sentence without possibility of parole for juveniles convicted of the highest degree of murder.
Molina was shot to death at a residence at 12462 Osborne in Los Angeles County in June 2007. Witnesses said Silva was in a group of about six people who tried to join a party and became angry when they were subjected to a weapons search by Molina and another person.
Members of the group yelled insults against the Vineland Boys gang. Witnesses said one of them yelled “Paca Trece” and another “Orcas,” both names of gangs active in the Pacoima area. (“Paca” is short for Pacoima, Justice Patti Kitching explained in the unpublished opinion.)
Shot in the Chest
A fight ensued, and witnesses said several shots were fired in the air before Silva took the gun from one of his compatriots and fired it three to five times toward the crowd, with one bullet fatally striking Molina in the chest.
Lopez was killed in June 2008, allegedly after he and a friend, Marvin Maldonado, encountered Silva in front of Silva’s home in Arleta. Lopez allegedly asked Silva where he was from, and Lopez answered “PT,” short for Paca Trece.
During a subsequent encounter that same day, Silva asked Lopez where he was from, and Lopez answered San Fer, the name of a rival gang. Silva then took a semiautomatic handgun from his waist and shot Lopez about six times, Maldonado testified.
Moldonado was shot in the back as he fled, he testified.
A gang expert testified that Silva was a member of the Pacoima Cayuga Street Locos, or PCSL, a gang allied with Paca Trece.
Jurors convicted Silva of both murders, found as special circumstances that he committed multiple murders and committed the murders for the benefit of a criminal street gang, and also found him guilty of the attempted murder of Maldonado and of grossly negligent discharge of a firearm and assault with a firearm.
Penal Code Section
Los Angeles Superior Court Judge Cynthia Ulfig sentenced him to life imprisonment without possibility of parole for the murders and to 80 years to life on the other charges. The LWOP sentence was imposed under Penal Code Sec. 190.5, which provides for either that sentence or one of 25 years to life in prison when a defendant is convicted of a first degree murder committed when he or she was between the ages of 16 and 18.
In its original opinion, Div. Three rejected numerous defense claims, including that Silva should have been tried separately as to the two incidents and that prosecutors systematically used peremptory challenges to eliminate Hispanics from the jury.
The Court of Appeal reiterated those holdings on Friday, but said remand was required solely because of the Miller issue, which was not briefed originally because the Supreme Court had not ruled on it.
Kitching distinguished California’s law from the one struck down by the U.S. high court, because California’s law does not mandate LWOP, as Alabama’s does. But she agreed with defense counsel that Miller renders the California law unconstitutional as applied to Silva.
She cited People v. Caballero (2012) 55 Cal.4th 262, in which the court cited Miller in holding that a sentence of 110 years to life in prison for a juvenile convicted of three counts of attempted murder violated the Eighth Amendment because the sentencing judge failed to consider “all mitigating circumstances,” including the offender’s age, whether the offender was a direct perpetrator or an aider and abettor, and the minor’s physical and mental development.
In Silva’s case, the trial judge, based on Sec. 190.5, presumed LWOP to be the correct sentence and placed the burden on the defense to show why a mitigated sentence of 25 years to life should be imposed.
The application of that presumption is error under Miller, the justice explained, but added:
“We express no opinion as to how the trial court should weigh any factors discussed in Miller and Caballero, and/or any other permissible sentencing factors, and we express no opinion as to what the extent of appellant’s incarceration should be before he is able to seek parole from the parole board.
Attorneys on appeal were Sharon Fleming, by appointment, for the defendant and Deputy Attorneys General Lawrence M. Daniels and Allison H. Chung for the prosecution.
The case is People v. Silva, B225127.
Copyright 2013, Metropolitan News Company