P. v. Silva

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Filed 10/31/17 P. v. Silva CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL SILVA,
Defendant and Appellant.
E065151
(Super.Ct.Nos. RIF1210288,
RIF1210637, RIF1303719)
OPINION
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed.
Randi Covin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal,
Collette C. Cavalier, and Minh U. Le, Deputies Attorney General, for Plaintiff and
Respondent.

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A jury convicted defendant Michael Silva of second degree murder (Pen. Code,
§ 187, subd. (a)1) on an implied malice theory. The charge arose from a fatal shooting
occurring when defendant, under the influence of methamphetamine, was handling a
loaded firearm that discharged, killing Florinda Hernandez (the victim). Defendant was
also convicted of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and
being under the influence of a controlled substance while personally possessing a loaded,
operable firearm (Health & Saf. Code, § 11550, subd. (e)). The jury found true that he
personally used a firearm in the commission of the murder. (§§ 1192.7, subd. (c)(8),
12022.53, subd. (b).) In a bifurcated proceeding, the trial court found that defendant had
three prison priors (§ 667.5, subd. (b)), a prior strike (§§ 667, subd. (c), (e)(1), 1170.12,
subd. (c)(1)), and that he committed the offenses while out on bail (§ 12022.1). On
January 4, 2016, defendant was sentenced to 30 years to life for second degree murder,
plus a determinate 19 years.2
In this appeal, defendant contends his second degree murder conviction must be
reversed, because insufficient evidence shows he acted with implied malice at the time of
the fatal shooting. He further contends the evidence is insufficient to support the
personal use of a gun enhancement. We reject his contentions and affirm.
1 All statutory references are to the Penal Code unless otherwise indicated.
2 On the same day, defendant pled guilty in case No. RIF1210288 to possession
of a controlled substance (Health & Saf. Code, § 11370.1) and he was sentenced to one
year in prison, to run consecutive to his sentence in the murder case. He also pled guilty
in case No. RIF1210637 to possession of a firearm by a felon (Pen. Code, § 29800,
subd. (a)(1)), and he was sentenced to eight months in prison, to run consecutive to his
sentence in the murder case.

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I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of March 20, 2013, defendant and the victim, a friend, were
working on defendant’s car; various people were going in and out of the garage. One of
defendant’s housemates, Jeannette, and her boyfriend, Josh, came home around 10:45
p.m. and went into the living room. At some point, defendant came into the living room
from the garage, holding a “meth pipe.” Defendant told Jeanette that he “was probably
going to get some sleep that night because he had been up for about three days.”
Later that night, Jeanette and Josh went outside to the driveway, where they had an
argument. Once they got inside Josh’s car, Jeanette heard a gunshot from inside the
house. After hearing the gunshot, Jeanette saw defendant and the victim come out of the
house through the front door. The victim was bent over, leaning on defendant while he
assisted her. Defendant helped her into the backseat of Josh’s car and had her sit on his
(defendant’s) lap. Defendant told Josh to drive to the hospital. During the drive,
defendant was screaming the victim’s name while the victim was foaming at the mouth,
struggling to breathe. Jeanette gave Josh directions to the hospital, but because she was
scared, they got lost on the way. When they arrived, defendant told Jeanette, “if the
police . . . ask where the shooting happened . . . tell [them] it was at the 99 Cent Store.”
Josh dropped off defendant and the victim near the main lobby of the Corona
Regional Medical Center, but not at the emergency room. A security guard at the
hospital testified that when he made contact with them in the parking lot, he heard
defendant tell the victim the bullet was meant for him, not her. Defendant did not call
911 until he was at the hospital. While the victim was being treated, defendant told the

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security guard that he and the victim had been walking down the street when a vehicle
pulled up next to them. Someone inside the car yelled a derogatory statement at the
victim, defendant responded, and the person in the vehicle pulled a gun out and shot her.
Defendant explained that the bullet was meant for him. Defendant’s speech was slurred
and he spoke rapidly and nervously.
Defendant told a substantially similar story to the police. He further elaborated
that the shooting took place “at the 99 Cent Store”; he brought the victim to the hospital
on foot, and the shooter was in a black Silverado. When asked if he lived in Corona,
defendant said he was homeless. His speech was “rapid,” in addition to mumbling and
breathing heavily. He told the officers that he felt dizzy and numb, and he soon became
unresponsive. While defendant was treated at the hospital, he told one of the nurses that
he had used methamphetamine. He slept at the hospital, during which time his heart rate
was monitored and recorded: At 2:30 a.m., it was 145 beats per minute; at 3:15 a.m., it
was 120 beats per minute; at 3:40 a.m., it was 122 beat per minute. Defendant’s blood
was drawn at 4:04 a.m. While he was asleep, his eyelids fluttered and his pupils were
dilated. Gunshot residue was found on defendant’s right hand.
The victim was pronounced dead at the hospital at 1:37 a.m. She died from the
gunshot wound, which caused her to “[bleed] to death internally and externally.” The
bullet’s trajectory was “pretty much . . . straight on front to back, very minimally slightly
downward.” The coroner who performed the victim’s autopsy agreed that the wound was
consistent with two people standing and one shooting the other in the chest. The bullet
trajectory’s “[v]ery, very slight downward angle” could have resulted from a “slight bend

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at the waist, at the hip.” Even normal posture could give the bullet a slight downward
angle. The coroner further explained that the victim’s wound was “potentially life-
threatening,” but that “if medical intervention is provided in a timely fashion, the
expected outcome is most people, the majority will survive this particular type of injury.”
The next morning, another of defendant’s housemates, Aaron, went into the garage
and saw a handgun with a laser attachment lying on the workbench. He picked up the
gun and put it in defendant’s car, on the front passenger seat. Mariela, yet another of
defendant’s housemates, told Aaron that they should “get the ‘fuck out of [the house].’”
Later that morning, Aaron saw Mariela in defendant’s car, which was still in the garage.
She was sitting in the driver’s seat, wearing blue gloves, and talking on the phone.
Mariela was looking for money and the gun. Once she found the gun, she put it in her
bag. The bag and gun were later retrieved from inside her car. There was no bullet
chambered in the gun, but it had a magazine with nine unspent rounds in it.
The owner of the gun used to kill the victim testified that it had been stolen from
her home on March 20, 2013. She kept the gun loaded with a 10-round magazine, but
she did not put a round in the chamber so that it was ready to shoot.
Defendant tested positive for methamphetamine in his system when he was
arrested, and he exhibited symptoms of being under the influence. The prosecution’s
expert witness testified that methamphetamine is a “central nervous system stimulant,
which means that it works on the brain and the body by speeding everything up.” The
drug also causes involuntary physical responses, including muscle tremors or rigidity and
uncontrollable, unsteady, fidgety movements. Mentally, the drug increases “risk-taking

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behavior, [in that] a person may engage and make decisions that [he] wouldn’t normally
have done if [he] were not under the influence of the drug.” Other symptoms include a
sustained elevated pulse rate, rapid speech, and dilated pupils. Continued use of
methamphetamine after the body has already been stimulated by prior use may result in
someone being in the “crash phase” in which signs of both stimulation and slowing down
are present.
The gun used by defendant was a semiautomatic handgun. The prosecution’s
expert, a forensic firearms examiner, testified that the gun can hold a maximum of 11
rounds, 10 in the loaded magazine and one round in the chamber. The gun was found
with a mounted laser sight. The expert stated that its “loaded chamber indicator” shows
whether “there is a cartridge inside the chamber ready to fire.” If a cartridge is loaded,
“you can see the silver of the cartridge”; if there is no cartridge, “it’s just empty, it’s just
black.” Further, the gun has several safety mechanisms: a trigger safety, which prevents
the gun from firing unless the bottom half of the trigger is pulled; a magazine safety,
which requires a magazine be loaded whether or not a bullet is in the chamber; and an
internal firing pin safety, which requires the trigger be pulled in order to fire. All safeties
were working properly on the gun.
Defendant testified that he was working in the garage on the day of the shooting
when an acquaintance he knew only as “Bones” approached him, offering to sell him a
gun. When she showed him the gun, she removed the loaded magazine. He purchased
the gun from her, including its magazine. He then put the gun away, assuming it was not

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loaded. Defendant admitted that he had smoked methamphetamine at 5:00 or 6:00 p.m.
that day.
Later that night, defendant and the victim were in the garage, working on his car.
The victim occasionally left the garage to get them a drink. At one point, defendant told
the victim to “go inside, wash up” so they could go out to eat. Once she left the garage,
defendant turned off the main lights, leaving on the light at the work bench. Using that
light, he picked up the gun and attached the laser. He held the gun upside down in his
left hand, with his hand partially on the slide of the gun. As he was attaching the laser to
the gun with his right hand, two of his fingers “came off the caliper buttons, overrode the
trigger guard . . . hit the trigger,” and the gun fired. The gun then “kicked out” of
defendant’s hand. He noticed the victim standing in the garage. She looked at him with
one of her hands over the wound. Defendant opened the garage door, picked her up, and
ran outside to the driveway. He noticed Josh in his car and ran toward it. Jumping into
the backseat with the victim, defendant told Josh and Jeanette to take them to the
hospital. When they arrived at the hospital, Jeanette helped defendant take the victim out
of the car. Josh drove off and Jeanette ran after him. Defendant realized Josh had
dropped them off near the main lobby doors (not the emergency room) and called 911. A
security guard soon approached him and called for help. Two medical teams arrived and
worked on the victim.
Defendant admitted that he lied to the security guard and the police about how the
victim was shot. He acknowledged there was no spent casing found and there was no
evidence (other than his testimony) as to where the shooting occurred. He testified that

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he did not intentionally shoot the victim and that he had never taken a course on firearm
safety. He also explained that he did not know there was a round in the chamber. He
assumed the gun was not loaded. He stated that he did not know he was endangering
someone’s life when he was attaching the laser to the gun. When asked whether he
thought it was a good idea to handle a gun while under the influence of a drug, defendant
said, “[N]o, it’s not, I would say.” He also agreed that guns can be dangerous, guns are
deadly weapons, and “guns and drugs don’t mix.” Defendant could not remember where
the victim was standing after he shot her, but he knew she was in the garage before the
gun went off.
Witnesses testified as to defendant’s repeated use and possession of guns.
Defendant testified that he used a gun in 1989 when he fired at a car with people in it. In
January 1991, he admitted to a police officer that the semiautomatic handgun in the car
he was in belonged to him. In November 1991, defendant had a rifle and a
semiautomatic pistol in his possession and told a police officer that he needed them for
protection. In August 1992, defendant was convicted of being a felon in possession of a
firearm. In June 1998, defendant owned a shotgun and a box of shotgun rounds. His
girlfriend at the time owned an “SK 47,” and 120 rounds of ammunition. In April 2008,
police found an “AR 15 rifle” and a semiautomatic handgun, both of which were loaded,
in defendant’s home. The loaded semiautomatic handgun was in his bedroom.
Defendant also had a loaded semiautomatic pistol in his car. Defendant admitted that all
the guns found in his possession were loaded “pretty much every time.” The day after he
shot the victim, March 21, 2013, police found various types of ammunition in his

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bedroom. In addition, defendant admitted going to and shooting at gun ranges. He also
admitted knowing how a semiautomatic handgun works and how to load it.
When defendant was attaching the laser, he did not check its chamber, nor did he
pull out the magazine or check to see if there were bullets in the magazine. He believed
the gun was unloaded because he had not seen Bones load it or put a bullet in the
chamber, and the last time he looked there was no bullet in the chamber. Defendant did
not look at the loaded chamber indicator on the slide of the gun, claiming he did not
know there was one. He admitted he knew that shooting people with a gun could kill
them.
During the prosecution’s rebuttal, the prosecution’s expert responded to a
hypothetical in which the prosecutor described a person holding a gun in a way similar to
that described by defendant, i.e., upside down while attaching the laser. The expert
testified that a person who grabbed a semiautomatic firearm such as that “upsidedown,”
with his hand partially on and partially off the slide, would injure his hand if the gun fired
and flew out of his hand. He explained that “the bottom of the slide has a sharp edge,”
such that if the gun flew out of the person’s hand, it would tear his hand. There was no
evidence that defendant’s hand was injured as a result of shooting the victim.
II. DISCUSSION
A. Substantial Evidence Shows Defendant Acted with Implied Malice.
Defendant claims his second degree murder conviction must be reversed because
there is insufficient evidence he acted with implied malice. Specifically, he argues that

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the evidence fails to show that he knew and disregarded the fact that his conduct
endangered human life. We disagree.
1. Standard of review.
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.]’” (People v. D’Arcy (2010) 48 Cal.4th 257, 293.)
2. Applicable legal principles.
Second degree murder is an unlawful killing with malice aforethought, but without
the willfulness, premeditation, and deliberation necessary for first degree murder.
(§§ 187, subd. (a), 189; People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690,
697.) By contrast, involuntary manslaughter is an unlawful killing without malice “in the
commission of an unlawful act, not amounting to a felony; or in the commission of a
lawful act which might produce death, in an unlawful manner, or without due caution and
circumspection.” (§ 192, subd. (b); see People v. Ferguson (2011) 194 Cal.App.4th
1070, 1082.) For purposes of the general murder statutes (§§ 187-189), malice may be
express or implied (§ 188). “Malice is implied when the killing is proximately caused by
‘“an act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers the life of

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another and who acts with conscious disregard for life.”’ [Citation.]” (People v. Knoller
(2007) 41 Cal.4th 139, 143.)
An accidental shooting can be second degree murder or involuntary manslaughter
depending on the defendant’s knowledge. (See People v. Thomas (2012) 53 Cal.4th 771,
814-815 [conviction for second degree murder for a claimed accidental shooting during
an argument]; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1141-1142.) The
mental state for involuntary manslaughter differs from the mental state for implied malice
murder. “‘Implied malice contemplates a subjective awareness of a higher degree of risk
than does gross [(i.e., criminal)] negligence, and involves an element of wantonness
which is absent in gross negligence. [Citations.]’ [Citation.] ‘A finding of gross
negligence is made by applying an objective test: if a reasonable person in defendant’s
position would have been aware of the risk involved, then defendant is presumed to have
had such an awareness. [Citation.] However, a finding of implied malice depends upon a
determination that the defendant actually appreciated the risk involved, i.e., a subjective
standard. [Citation.]’ [Citation.]” (Id. at p. 1142; People v. McNally (2015) 236
Cal.App.4th 1419, 1426 [“‘the state of mind of a person who acts with conscious
disregard for life [(i.e., implied malice)] is, “I know my conduct is dangerous to others,
but I don’t care if someone is hurt or killed.”’”].)
3. Analysis.
Substantial evidence shows that defendant was aware that handling a loaded gun
while under the influence of methamphetamine, in the presence of others, was dangerous
but he consciously disregarded the risk. According to the testimony, several people,

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including the victim, were going in and out of the garage. At the time defendant was
handling the gun, he was awaiting the victim’s return so they could go get something to
eat. He was under the influence of methamphetamine; nonetheless, he turned off the
main lights, picked up the gun with the loaded magazine, and attached the laser using
only the light from the workbench. He was aware the victim had returned to the garage
but he continued handling the gun. The forensic firearms examiner testified that the gun
had a chamber indicator, which shows that a bullet was in the chamber and ready to be
fired. Defendant did not unload the weapon while attaching the laser, or check to see if it
was loaded. Rather, he claimed that he assumed it was not. However, defendant
admitted that all the guns found in his possession were loaded “[p]retty much every
time.” After shooting the victim, defendant had Jeannette and Josh drive them the
hospital instead of calling 911. At the hospital, defendant lied about how and where the
victim was shot, and claimed that he was homeless. A reasonable jury could reject
defendant’s claim of ignorance about the gun being loaded, given his actions and lies
after shooting the victim. Based on the record, substantial evidence supports the jury’s
conclusion that defendant was aware of but disregarded the risk he posed to the victim
when he knowingly handled a loaded gun while on drugs.
Distinguishing several cases, defendant contends that no reasonable trier of fact
could have found beyond a reasonable doubt that he acted with implied malice at the time
of the shooting, because the evidence fails to show that he was subjectively aware he was
endangering the victim’s life when he was attaching the laser to the gun while under the
influence of methamphetamine. He makes several assertions: he did not know the gun

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was loaded; he had no prior training in firearm safety; his failure to check and make
certain that the gun was unloaded establishes criminal negligence only; he thought he was
alone in the garage when he was handling the gun; there was no conflict between him and
the victim; and he demonstrated concern for her after she was shot.
Defendant’s assertions of fact, even if we assume them to be supported by the
evidence, are not enough to establish that reversal is required. “‘“Although it is the duty
of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other innocence [citations], it is
the jury, not the appellate court which must be convinced of the defendant’s guilt beyond
a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.”’
[Citations.]” [Citation.]’ [Citations.]” (People v. Cravens (2012) 53 Cal.4th 500, 507-
508.) Because the jury could reasonably find that defendant was aware of, but
disregarded, the risk he posed to the victim when he knowingly handled the loaded gun
while on drugs, substantial evidence supports the judgment. Defendant’s lack of gun
safety training and his attempt to help the victim after the shooting are “‘merely
circumstances to be considered in evaluating [his] culpability.’” (People v. Ortiz (2003)
109 Cal.App.4th 104, 115 [evidence of a defendant’s experience and actions provide the
knowledge component of implied malice].) That he had previously engaged in this same
dangerous activity numerous times without incident is irrelevant because the fact that

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nothing serious happened may be attributed to sheer luck, which is insufficient to excuse
his behavior.
The jury found that defendant acted with implied malice. Substantial evidence
supports the jury’s finding.
B. Substantial Evidence Supports Defendant’s Personal Use of a Gun
Enhancement.
Defendant contends the evidence is insufficient to show that he personally used a
firearm within the meaning of section 12022.53, subdivision (b). We disagree.
1. Standard of review.
We review the entire record to determine whether it contains substantial evidence
from which the jury could find defendant guilty beyond a reasonable doubt. (People v.
D’Arcy, supra, 48 Cal.4th at p. 293.)
2. Applicable legal principles.
“Section 12022.53 is part of the so-called 10-20-life law enacted in 1997 to
enhance penalties for firearm use in the commission of certain felonies [citation].”
(People v. Grandy (2006) 144 Cal.App.4th 33, 42.) The section recognizes different
degrees of culpability and imposes three gradations of punishment based on increasingly
serious types and consequences of firearm use in the commission of designated felonies.
(People v. Martinez (1999) 76 Cal.App.4th 489, 495.) “[S]ection 12022.53, subdivisions
(b) and (c), require that the defendant personally use or discharge a firearm in the
commission of the underlying felony.” (People v. Carrasco (2006) 137 Cal.App.4th
1050, 1058.) Murder is a specified felony. (§ 12022.53, subd. (a)(1).) The phrase “uses

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a firearm,” as found in section 12022.53, subdivision (b), encompasses the display of an
unloaded or inoperable firearm. “[A] defendant ‘uses’ a firearm by intentionally
displaying it in a menacing manner, firing it, or striking or hitting a human being with it.
[Citation.]” (People v. Grandy, supra, at p. 42.)
3. Analysis.
Substantial evidence exists to support the jury’s true finding of personal use of a
firearm enhancement. Prior to attaching the laser to his new gun, defendant turned off
the main lights in the garage, using the only the light by the workbench. When the victim
returned to the garage, defendant was in handling a loaded gun with the laser attached in
a darkened garage. According to the coroner, the bullet that killed the victim had an
essentially straight trajectory with only a “[v]ery, very slight downward angle.” Its path
could have resulted from a person standing in a normal posture and shooting her in the
chest. Although defendant testified that the shooting was an accident, the jury could have
chosen to disbelieve his testimony, given his extensive experience with guns, his actions
and repeated lies at the hospital, Mariela’s attempt to remove the gun from the residence,
and the absence of any spent casing in the garage. Instead, it was reasonable for the jury
to find that defendant wanted to try out his gun using the laser, and so he darkened the
garage, used the laser to aim the gun at the victim, and pulled the trigger. Even if
defendant believed the weapon was not loaded, this scenario supports a finding he

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intentionally displayed the gun in a menacing manner. (People v. Grandy, supra, 144
Cal.App.4th at p. 42.)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
SLOUGH
J.

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