PEOPLE v. SILVA

No. A140320.

THE PEOPLE, Plaintiff and Respondent, v. DARREN JAMES SILVA, Defendant and Appellant.

Court of Appeals of California, First District, Division Four.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

STREETER, J.

This case arises out of a hit-and-run, but the evidence shows it was no accident. Darren James Silva was convicted of attempted willful, premeditated and deliberate murder (Pen. Code, §§ 187, subd. (a), 664),1 with personal infliction of great bodily injury (§ 12022.7, subd. (a)), after he ran over a pedestrian, Margaret Contreras, with his pickup truck and then departed the scene. He was sentenced to 15 years to life on the attempted murder, with three consecutive years for the great bodily injury enhancement.

Silva raises on appeal nine claims of error: (1) insufficiency of the evidence to support the finding of premeditation and deliberation; (2) refusal of his request for instruction on third party culpability (CALCRIM No. 373); (3) failure to instruct sua sponte on third party culpability; (4) the instructions' failure to relate the third party perpetrator defense to the prosecution's burden of proof; (5) erroneous admission into evidence of a residential surveillance video; (6) denial of Silva's posttrial motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (7) error in giving CALCRIM No. 357 on adoptive admissions; (8) cumulative error; and (9) an unauthorized sentence.

Except for the sentencing issue, his arguments are without merit. We therefore modify the sentence imposed for attempted murder and otherwise affirm.

I. BACKGROUND

In January 2013, Silva was friends with William "Billy Joe" Tindle, who was Contreras's boyfriend. Contreras, who was otherwise homeless, sometimes stayed at Tindle's house in Eureka, where he lived with his mother. Tindle's mother did not like Contreras and did not want her in their house, so Contreras often stayed in the garage. Silva lived at his father's house, but sometimes spent the night at Tindle's.

A few days before the hit-and-run, Tindle became angry because someone stole a gun from him that he had borrowed from his mother. He suspected the thief was Contreras, but he also questioned Silva about the missing gun. Tindle confronted both Silva and Contreras together about the gun within a few days before the hit-and-run. The testimony was inconsistent as to when and where this confrontation took place,2 but it appears intense emotions came out during and after the confrontation. Tindle became so angry with Contreras that he almost hit her with a 14-inch bolt, but he restrained himself. When Tindle went back into his house, Silva and Contreras got into an argument about the gun, each accusing the other of being the thief. According to Contreras, just the two of them were present and the argument took place before midnight in Tindle's garage about three or four days before she was hit by the truck. Contreras also testified she had more than one argument with Silva about the gun, including on the day before she was hit by the truck.

Gary Chadwell also witnessed a confrontation between Silva and Contreras concerning the gun. Chadwell was friends with Tindle, Silva, and Contreras. He had known Tindle and Silva since the three were in grade school together. All four friends used methamphetamine together at times. Chadwell testified he was at Tindle's house early one morning, about 4:30 or 5:00 a.m., when he heard Contreras and Silva arguing about the missing gun. Contreras began demanding to know why Silva had accused her of stealing Tindle's gun. Contreras became so enraged during the argument that she threatened to blow up Silva's 1939 Ford Coupe, kill Silva, and hurt his family. Chadwell testified Silva was more "composed" than Contreras during the confrontation, but he also told the prosecutor's investigator he had never seen Silva as agitated as he was on that occasion. Chadwell thought the argument he witnessed occurred a day or two before Contreras was injured. It was Chadwell's impression that Silva and Tindle had been "up for days using methamphetamine" before that confrontation.3

On the morning of January 11, 2013, while Silva was at Tindle's house, he discovered the tires on his white 1983 Toyota pickup truck had been slashed. He blamed Contreras. An acquaintance named Susan "Suzi" Nichols (Suzi)4 was in the neighborhood that morning to clean house for her ex-husband and their son, who lived across the street from Tindle. Suzi had also been friends with Contreras for 30 years. When Suzi arrived on foot about 10:45 a.m., she saw Silva with his truck jacked up and thought he was changing or repairing the tires. Chadwell was sitting in Tindle's driveway, talking with Silva. According to Suzi, Silva then yelled to her that Contreras had "popped [his] tires" and he was going to "kill that bitch."

Chadwell remembered a day when he was in Tindle's driveway with Silva and Suzi came by, but he did not remember hearing any interaction between Silva and Suzi. He thought this occurred a few days or maybe a week before Contreras was injured. He remembered only one such occasion involving Suzi.

About an hour after arriving, Suzi and her ex-husband, Jim Leach, prepared to leave Tindle's neighborhood together in Leach's car to go back to Suzi's house. As she was walking to Leach's car, Suzi heard Silva tell Leach that Contreras had popped his tires and he was going to kill her. Leach, who did not want to testify and frequently claimed a lack of memory, denied having had such a conversation with Silva.

As they were leaving, Suzi saw Silva get into his truck and pull onto G Street. Suzi and Leach ended up following behind Silva's white truck, as they were heading in the same direction. Silva was alone in his truck. As they were driving on Buhne Street, Suzi saw Contreras walking along Buhne Street between Summer Street and Pine Street. Silva's truck was about a block ahead of Leach's car, but Suzi saw Silva slow down and brake as he came up next to Contreras. He then turned on his blinker and turned onto Summer Street. Leach identified the truck as Silva's but could not say if Silva was driving, while Suzi confidently identified Silva as the driver.

Contreras had slept in Tindle's truck on the night of January 10, 2013. When she woke up on January 11, she heard Silva and Chadwell talking outside the truck. She got out of the truck and greeted the two men, then left and walked to her sister's house, which was about half an hour's walk away. After visiting with her sister for an hour or so, Contreras started walking to her daughter's house, where she planned to take a shower.

As she was walking along Buhne Street, Contreras saw Silva in his truck a block before she reached Pine Street. He stopped his truck and told her he was going to kill her. She did not take him seriously because she did not think Silva was still angry with her. Silva then just drove off and Contreras continued walking. This confrontation was also witnessed by a senior benefits unit field trainer in the neighborhood who said the truck was light-colored or white, and who identified a photo of Silva's truck as the same one he saw. Contreras did not recall anything else about that day and only remembered waking up in the hospital more than a month later.

Other evidence showed, as she continued walking along Buhne Street, Contreras was hit by a white pickup truck and run over near the corner of Buhne and Pine Streets. The first 911 call came in at 11:52 a.m. Contreras told a first-responder, Captain Michael Bakke of the Eureka Fire Department, she had been run over twice. She also told Bakke that Silva was the man who hit her. She told Bakke Silva was a friend of her boyfriend's and had tried to kill her, and she told Bakke where he lived. In an interview a few weeks later, Contreras, while sedated, also told Detective Ronald Harpham of the Eureka Police Department that Silva was the one who ran her over.

A neighbor who witnessed the incident, Larry Nichols, testified that a truck had run up onto the sidewalk at the corner of Pine and Buhne Streets, hit a fence in front of 210 West Buhne Street, then reentered the roadway onto Buhne Street and sped off. After the truck left, Nichols noticed a woman's body lying on the sidewalk in front of 210 West Buhne Street and called 911. Officer Tim Jones of the Eureka Police Department responded and conducted some of the early investigation on the case, including talking to Nichols. Based on his own observations at the scene and what witnesses told him, Jones believed this was not a simple motor vehicle accident.

Contreras's injuries were life-threatening, and she was taken to the hospital and put into a medically induced coma. She remained in the hospital for more than a month before she recovered consciousness. Her injuries required a pin to be inserted into her pelvis and a titanium plate into her chest. She continued to have difficulty walking at the time of trial (more than eight months later) due to pain.

Based on the information he had gathered, Officer Jones suspected a white or light-colored pickup truck was the vehicle that had hit Contreras. After conversations with Fire Captain Bakke and Detective Harpham, he also knew Contreras had accused Silva of running her down. A records check showed a 1983 Toyota pickup truck of the same description was registered to Silva at his father's address. The next morning, Jones and another officer went to Silva's father's house to conduct an interview with Silva. Jones told Silva they were investigating the theft of Tindle's gun. Silva told Jones he had gone from his father's house on January 11 to Tindle's house, then to Bear River Casino, and then to work around 2:00 or 3:00 p.m. He said he left Tindle's house for the casino. He also found occasion to tell the officer that Contreras had slashed his tires. After the interview, Jones photographed Silva's truck in front of his father's house.

A system of homeowner-installed video surveillance cameras at 210 West Buhne Street had captured footage on January 11 of a white pickup truck driving on the sidewalk, side-swiping the fence in front of the house, knocking it down, and then heading back onto Buhne Street and driving off. The truck is recognizable as Silva's due to various distinctive features.5 Both the still photos of Silva's truck and the video of the hit-and-run were admitted into evidence for the jury's comparison. Forensic evidence also showed a paint chip found in Contreras's clothing could have come from Silva's truck.

A surveillance camera at Bear River Casino caught images of Silva driving his white pickup truck into the parking lot at 12:15 p.m., 23 minutes after Contreras was run down. Detective Harpham determined it took 18 minutes to drive from the crime scene to Bear River Casino. The video showed Silva entering the casino at 12:18 p.m.

Much of the substance of Silva's appeal derives from the theory that it could have been Tindle who ran down Contreras. Though Silva's attorney called no witnesses on his behalf, he was able to establish a number of facts in support of such a theory by cross-examining prosecution witnesses. For instance, Tindle admitted he frequently drove Silva's truck and had access to a set of keys to it in Tindle's garage. Tindle and Contreras both testified on cross-examination that Tindle had held a gun to her head three days before the hit-and-run. Contreras minimized the event at trial, but told Harpham that Tindle had threatened to kill her during that incident. Tindle testified he pulled a gun on her because he caught her in his house in the middle of the night, the doors had been locked, and she was not welcome, as he had told her repeatedly. When Detective Harpham came to talk to Tindle about the hit-and-run, Tindle told him Contreras deserved to be run over, and if he had the chance he would run her over or otherwise kill her himself.

On October 2, 2013, the jury found Silva guilty of attempted murder and found true the allegation of willfulness, premeditation and deliberation. The jury also found true the allegation that Silva personally inflicted great bodily injury in committing the offense. On November 15, 2013, the trial judge sentenced Silva to 15 years to life on the attempted murder and three consecutive years on the great bodily injury finding (§ 12022.7, subd. (a)).

II. DISCUSSION

A. Sufficiency of the Evidence of Premeditation and Deliberation

Silva contends the evidence was insufficient to support the jury's finding that the attempted murder was premeditated and deliberated. We review this issue for substantial evidence, with the ultimate question being "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted; People v. Johnson (1980) 26 Cal.3d 557, 576-577.)

Silva argues that any inference of premeditation and deliberation drawn from the evidence was not "legally reasonable." He emphasizes that intent to kill must be shown for every attempted murder (§ 21a; CALCRIM No. 600; People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias)); hence, there must be a significantly greater showing to trigger the harsher penalty attached to the premeditation and deliberation finding.6 Silva argues, because he was angry when he committed the crime, he must have been acting rashly, not deliberately. The evidence, he claims, was more suggestive of "a rash impulse, hastily executed" than a premeditated, deliberate attempt to murder Contreras.

He further argues, because Contreras survived the hit-and-run, evidence of intent to kill was absent: "Whoever committed this act did so on a rash impulse." He also asks us to infer from the bare fact of her survival that the driver's only intent was to disable her, which would be insufficient for attempted murder. He draws the same inference from the fact that the truck was not driven directly over Contreras's head, which would have been a more effective way to kill her. These arguments go more to the question whether he was guilty of attempted murder at all, not whether the sentence-enhancing finding was supported by substantial evidence.

We reject the foregoing arguments as inviting us to reweigh evidence and redetermine facts. Adopting Silva's reasoning would take us far outside our proper role as an appellate court. Viewed in a light most favorable to the verdict (Covarrubias, supra, 1 Cal.5th at p. 890), we come to a far different conclusion as to how the evidence measures up to the due process (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15) and state "miscarriage of justice" standards (Cal. Const., art. VI, § 13).

Analytically, Silva contends evidence of premeditation and deliberation must fall into one of three general categories: planning, motive, and manner of the attempted killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); but see, People v. Streeter (2012) 54 Cal.4th 205, 242 (Streeter) [Anderson factors are not exclusive].) As we see it, there was considerable circumstantial evidence of premeditation and deliberation, including evidence in all three Anderson categories.

The evidence of an ongoing conflict between Contreras and Silva over the theft of the gun, the threats made on both sides, Contreras's having blocked his access to certain sources of methamphetamine, and the slashing of Silva's tires all provided Silva with a motive to kill Contreras and increased the likelihood the attack was premeditated and deliberated.

The premeditation and deliberation finding was also supported by evidence of Silva's conduct before the hit-and-run. An hour earlier, he was yelling about wanting to kill Contreras; he said more than once he was going to "kill that bitch." The threats show he was not just angry but contemplating murder. The time between the threat to kill Contreras and the actual deed added the prospect of his engaging in further deliberation about whether to go through with the killing. The jury could have inferred he was thinking about killing Contreras, weighing the pros and cons of killing her, as he drove along Buhne Street and spotted her. Perhaps most damning was Contreras's testimony about her confrontation with Silva in his truck in which he threatened to kill her, then apparently circled around the block and attempted to do just that.

John Larkin, a senior benefits field agent who was in the Buhne Street neighborhood to discuss a policy with a client, also observed Contreras having a confrontation with someone in a white or light-colored pickup truck in the middle of the street near the intersection of Buhne and Union Streets just prior to the hit-and-run. The truck was occupied by only one man. He pulled the truck up in front of Contreras and blocked her path. Larkin heard the man in the pickup, who had partially stepped out of his truck, say, "You will pay with your life you fucking bitch!" The argument was so heated Larkin feared it might escalate into something physical and prepared himself to intervene. Larkin thought the driver possibly was a Hispanic man with dark hair, but he identified someone other than Silva in a photo lineup. Also corroborating Contreras's account of the confrontation was the driving pattern Suzi observed when Silva stopped his truck near Contreras briefly, then drove off and turned the corner. It may be inferred he circled around the block to Pine Street and maneuvered his truck into position to run her over. All of this was evidence of planning in the Anderson paradigm.

The exact manner in which the hit-and-run was accomplished also suggested at least willfulness—veering off the roadway and onto the sidewalk at the intersection of Pine and Buhne Streets when no traffic or other external condition appeared to force the truck off the street—and it tends to suggest Silva acted in accordance with a preconceived plan. It may be inferred from the evidence Silva planned the attack as he was driving around the block, thereby lending support to the jury's finding of premeditation and deliberation. The truck was plunged onto the sidewalk just long enough to run over Contreras, then was driven off. Officer Jones testified that tire friction marks appeared in the street on Pine Street, leaving arching tire marks onto the sidewalk on West Buhne Street. This suggested the driver of the truck had purposely accelerated rapidly while still at the stop sign on Pine Street and then entered directly onto the sidewalk on West Buhne Street. All of this lends itself to an inference of a willful, premeditated, deliberated attempt to murder Contreras. Thus, there was substantial evidence to support the jury's finding of both willfulness for the attempted murder conviction and premeditation and deliberation for the enhanced penalty.

B. Third Party Culpability

Silva does not dispute that the white truck registered to him was the same truck that ran over Contreras. He claims, however, there was "no direct evidence" he was driving the truck at the time. Several of Silva's appellate issues derive from the theory that Tindle, not Silva, was driving the truck when it hit Contreras. Of course, it is a defense against criminal charges to show a third person, not the defendant, committed the crime charged. (People v. Hall (1986) 41 Cal.3d 826, 832.) "A criminal defendant may introduce evidence of third party culpability if such evidence raises a reasonable doubt as to his guilt, but the evidence must consist of direct or circumstantial evidence that links the third person to the crime. It is not enough that another person has the motive or opportunity to commit it." (People v. Abilez (2007) 41 Cal.4th 472, 517 (Abilez); accord, People v. Mackey (2015) 233 Cal.App.4th 32, 110-111 (Mackey).)

No evidentiary issue is raised here, as all of the evidence supporting Silva's theory came in either on direct examination by the prosecutor or through cross-examination without objection. Instead, Silva argues further instruction was required to make the third party culpability doctrine comprehensible to the jury. (Cf. People v. Henderson (2003) 110 Cal.App.4th 737, 741-744 (Henderson) [the defendant claiming third party committed the crime was entitled to attorney-drafted pinpoint instruction on flight of third party, but no sua sponte duty to so instruct].) Silva's specific contentions are: (1) the court erred in refusing Silva's request for instruction on third party culpability via CALCRIM No. 373; (2) the court erred in failing to instruct sua sponte on third party culpability; and (3) the court erred by failing in its instructions to relate the third party defense to the prosecution's burden of proof. We address those arguments in turn.

1. Refusal of Silva's request for CALCRIM No. 373

Silva requested and was denied CALCRIM No. 373, which he characterizes as a jury instruction on third party culpability. He contends the instruction should have been given because it bore directly on his only defense: that Tindle, not Silva, was the driver of Silva's truck at the time of the hit-and-run. CALCRIM No. 373 reads as follows: "The evidence shows that (another person/other persons) may have been involved in the commission of the crime[s] charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether (that other person has/those other persons have) been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crime[s] charged." Silva claims the failure to give this instruction violated his Fifth, Sixth, and Fourteenth Amendment rights under the federal Constitution. We review claims of instructional error de novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.)

The trial court voiced the concern that CALCRIM No. 373 was inappropriate to the circumstances: "I am not giving [CALCRIM No.] 373, which is other perpetrator, and the basis for that is I don't think it applies in this particular circumstance. More closely, that would be a situation where two co-defendants were severed, perhaps, or perhaps one has pled, showing an affirmative—affirmative evidence of another perpetrator. In this instance I think what the defense will argue, although I am not putting any words in anyone's mouth, is they think there is evidence to show that [Tindle] committed the offense. I don't think that applies factually in this instance. [CALCRIM No.] 373, so I am not giving that particular instruction."

We agree with the trial court's analysis. The Bench Notes to CALCRIM No. 373 describe it as an instruction on "unjoined co-participants." (Bench Notes to CALCRIM No. 373.) The wording of CALCRIM No. 373 strongly suggests it is an uncharged coparticipant instruction, not an alternative perpetrator instruction. It is designed to be given when a person who appears to have been an accomplice is not being prosecuted with the defendant. It is apparently intended to prevent the jury from becoming distracted by issues such as sympathy for the defendant because others equally guilty may appear to have escaped punishment, or bias against the defendant because no one else has yet paid for the crime. It essentially instructs the jurors not to consider such matters, rather than how to consider the evidence.

But in this case, there was no evidence of an aider and abettor. The testimony was uniform that only one person was in the truck. It was either Silva or Tindle. Telling the jury not to think about why Tindle was not being prosecuted would not have aided in Silva's defense or assisted the jury in its fact-finding. If a third party culpability instruction needed to be given, it at least needed to be one correct in law and helpful to the jury.

Substantively, an alternative perpetrator (or third party culpability) instruction would not tell jurors to ignore such evidence, as CALCRIM No. 373 does, but rather would instruct them to consider whether the evidence about that person's possible role in the crime raises a reasonable doubt about the defendant's guilt. (See, e.g., People v. Harris (2013) 57 Cal.4th 804, 853-854; People v. DePriest (2007) 42 Cal.4th 1, 51, fn. 17 (DePriest); Mackey, supra, 233 Cal.App.4th at p. 110.) CALCRIM No. 373 simply was not informative of how to handle evidence suggesting Tindle might also have wanted to kill Contreras and had access to Silva's truck. It does not fit the facts.

Though CALCRIM No. 373 could perhaps be modified to fit Silva's purpose, his attorney at trial suggested no such modification. Since he requested unmodified CALCRIM No. 373, there was no error in the court's refusing the request. (Henderson, supra, 110 Cal.App.4th at pp. 742-744 [no duty for court to modify pattern instruction sua sponte]; Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158 ["trial judge is not required to correct a requested instruction which is incomplete or erroneous"].)

2. Failure to instruct sua sponte on third party culpability

Silva further argues the court should have given a correct instruction sua sponte on third party culpability as an issue raised by the evidence. We agree, of course, "a trial court has a duty to instruct sua sponte `on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury's understanding of the case.'" (People v. Simon (2016) 1 Cal.5th 98, 143; People v. Gutierrez (2009) 45 Cal.4th 789, 824 [no sua sponte duty to give third party culpability instruction]; Abilez, supra, 41 Cal.4th at p. 517 [same].) But even up to this point in time, Silva has not proposed any specific instruction beyond CALCRIM No. 373. He continues to suggest CALCRIM No. 373 was a correct instruction in these circumstances. As we have indicated, it was not. Even if a sua sponte instruction would be called for in some cases where the defendant claimed third party culpability, the evidence here showed only motive and opportunity, which is insufficient to raise a reasonable doubt about defendant's guilt. (People v. Hartsch (2010) 49 Cal.4th 472, 496 (Hartsch); Mackey, supra, 233 Cal.App.4th at pp. 110-111.) No further instruction on the concept was required.

Furthermore, the court did give instructions on the general principles of law raised by the evidence when it instructed on the concept of reasonable doubt using CALCRIM No. 220. In addition, as part of its instruction on eyewitness identification, the court instructed: "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People . . . have not met this burden, you must find the defendant not guilty." These general principles conveyed everything the jury needed to know to decide whether it was Silva or Tindle who ran over Contreras. What Silva actually proposes is not instruction on a general principle of law, but rather a pinpoint instruction linking evidence of Tindle's animosity toward Contreras to the prosecution's burden of proof. We address this argument next.

3. Failure to relate the third party perpetrator defense to the prosecution's burden of proof

Silva suggests the trial court was obligated to craft a special instruction for his benefit that tied certain of the evidence to the reasonable doubt concept. He describes what is called in shorthand terms a "pinpoint" instruction. "A proper pinpoint instructs the jury on the defendant's theory of the case. An instruction is properly refused if it invites the jury to draw inferences favorable to one of the parties from specified items of evidence." (Mackey, supra, 233 Cal.App.4th at p. 111, italics omitted.) It is generally recognized that courts are not required to fashion pinpoint instructions for the parties. (Covarrubias, supra, 1 Cal.5th at p. 873; Abilez, supra, 41 Cal.4th at p. 517.) If parties desire such instruction it is up to counsel to draft proposed instructions. (See People v. Harris, supra, 57 Cal.4th at p. 853; People v. Gutierrez, supra, 45 Cal.4th at p. 824 [third party culpability instruction];Mackey, at p. 110; Henderson, supra, 110 Cal.App.4th at pp. 742-744; cf. DePriest, supra, 42 Cal.4th at pp. 51-52 [argument similar to Silva's rejected because other instructions covered the same ground].) Based on these and similar authorities, we reject out of hand Silva's suggestion that the court owed him a duty to draft a pinpoint instruction on third party culpability on his behalf.

4. Failure to instruct on third party culpability was harmless

In Hartsch, supra, 49 Cal.4th 472, the Supreme Court noted third party culpability "instructions add little to the standard instruction on reasonable doubt," and further, even if such instructions "properly pinpoint the theory of third party liability, their omission is not prejudicial because the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof." (Id. at p. 504.) "It is hardly a difficult concept for the jury to grasp that acquittal is required if there is a reasonable doubt as to whether someone else committed the charged crimes." (Ibid.; accord, Covarrubias, supra, 1 Cal.5th at pp. 907-908;Mackey, supra, 233 Cal.App.4th at p. 111.)

The same is true here. Indeed, defense counsel took full advantage of his opportunity to argue third party culpability to the jury. His opening remark in summation was: "Ladies and gentlemen, Darren Silva is not guilty of this crime. Do not convict the wrong man for what happened on that morning. Okay? He was not the person that was driving that truck, and I will explain to you why reasonable doubt exists regarding that question. And that fundamental question that you need to answer is, is there a reason for thinking someone else was driving that truck? And there is." It is virtually impossible this point was lost on the jury. There was no prejudice under any standard from the failure to instruct on third party culpability principles. (See part II.E.2, post.)

C. Admission into Evidence of Residential Surveillance Video

Next, Silva contends the court erred in admitting a video taken from a surveillance camera system positioned on the house at 210 West Buhne Street. His only objection, registered during a hearing under Evidence Code section 402, was lack of foundation. Silva contends on appeal the surveillance camera was not well maintained and the time stamp on the video was far from accurate so that the video was unreliable and its admission amounted to a due process violation. We review the evidentiary question for abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) On the due process issue our review is de novo. (In re Allison J. (2010) 190 Cal.App.4th 1106, 1112; People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7.)

1. Background

Silva's counsel requested an evidentiary hearing outside the jury's presence to determine admissibility of the video. At the conclusion of that hearing he objected on grounds that an insufficient foundation had been laid. The prosecution's witness, Benjamin Duhem, who owned the property at 210 West Buhne Street, authenticated the residential surveillance video in a hearing under Evidence Code section 402 outside the jury's presence. He had installed the video surveillance system himself in 2010 and it worked "fine," but the time stamp was approximately 30 minutes off from the actual time.7 Duhem provided other details about where the four cameras were mounted and which parts of the yard they depicted. Duhem testified the video, which was shown to the jury, was a depiction of his side and front yard areas and was a true and accurate copy of the flash drive of the surveillance video he gave the police.

We have viewed the video, which depicts the front and side yards of a home located at the corner of the intersection of two perpendicular streets (Buhne and Pine Streets). The video shows Silva's truck side-swiping and knocking down part of the fence in front of 210 West Buhne Street shortly after a woman walks by on the sidewalk in the opposite direction. The truck drives off without stopping or slowing down. Buhne Street is shown to be a two-lane, two-way street with moderate traffic and room for street parking. The video does not actually show the truck coming into contact with the woman, who was out of view of the camera by the time the truck came into view. The truck is clearly depicted, however.

A little more than three minutes before the crash, the same white pickup truck appears briefly, driving in the same direction on Buhne Street that it is seen driving three minutes later on the video. Just a few seconds before crashing into the fence, the same truck is seen driving up Pine Street towards Buhne. It may be inferred the truck made a right turn onto the sidewalk fronting on Buhne Street before striking the fence. It appears the truck is being driven normally while on Pine Street, and no obstacle, danger, or other reason appears why the driver would need to veer off the roadway onto the sidewalk and slam into the fence.

The trial court overruled the defense objection and admitted the evidence of Duhem's residential surveillance video as Exhibit No. 58, stating: "[T]his is a videotape which is a surveillance tape, Mr. Duhem is able to testify that it accurately depicts his front yard; that he is able to say that the time stamp is not accurate; and he is able to say that he has had no difficulty with the functioning of that surveillance equipment other than the time stamp. . . ."

2. Admissibility under state law

The court's ruling was not an abuse of discretion. Duhem's testimony provided sufficient authentication. (Evid. Code, §§ 250, 1400, subd. (a), 1401, subd. (a); Goldsmith, supra, 59 Cal.4th at p. 267 ["[A] . . . video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted."].) In addition, Evidence Code section 1553, subdivision (a), establishes a rebuttable presumption that "[a] printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent."

3. Due process

We also reject the due process argument. Silva contends the trial court's admission of Duhem's video violated his right to due process because it was unreliable. An evidentiary error violates due process only if it renders the defendant's trial arbitrary and fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 67, 70.) "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920, italics omitted; accord, People v. Fuiava (2012) 53 Cal.4th 622, 696-697; see, People v. Albarran, supra, 149 Cal.App.4th at pp. 230-232.)

Aside from the fact that Silva forfeited a due process challenge by limiting his objection to lack of foundation (Evid. Code, § 353; People v. Riggs (2008) 44 Cal.4th 248, 304; People v. Partida (2005) 37 Cal.4th 428, 433-438), there is no merit to his position. The Duhem video was relevant in multiple ways. It was not, as Silva calls it, a "reconstruction" of the hit-and-run; it was a visual recording of the crash itself. Beyond simply giving jurors a view of the crash as it happened so they could estimate speed, make judgments about the manner of driving, and identify the vehicle that ran over Contreras, additional inferences can logically be drawn from the video. First, because the truck was traveling in the same direction both times it appears on Buhne Street in the video, it must have doubled back. That it next appears coming up Pine Street suggests the truck in fact drove around the block to get back to Pine and Buhne. This tends to corroborate the testimony of Suzi, who saw Silva's truck turn onto Summer Street after it stopped initially near Contreras. Second, it is likely Contreras was facing the truck as it ran her down, as she was walking in the opposite direction from that in which the truck was traveling when it crashed into the fence. This tends to lend credence to her initial on-the-scene identification of Silva as the one who ran over her. Knowing both men well, she would have recognized whether it was Tindle or Silva behind the wheel.

The evidence in this case was not inflammatory compared with evidence deemed admissible in other cases. In Streeter, for instance, the Supreme Court held a trial court had properly admitted an audio tape which contained the screams of the victim, who had been set on fire by the defendant and eventually died of her injuries, while she was being transported by ambulance to the hospital. (Streeter, supra, 54 Cal.4th at pp. 236-238.) The video here, by comparison, was devoid of content tending to arouse the jury's passions or prejudices. It did not, for instance, depict the truck actually striking the victim and thus its emotional impact was minimal. What the court said in Streeter is equally applicable here: the evidence "`did no more than accurately portray the . . . nature of the crimes. The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors.'" (Id. at p. 238.)

In the present case, the only inaccuracy established by the evidence was the video's time stamp, and even on that point, Officer Jones testified the time stamp was 41 minutes fast, which left the video with clear relevance on the timing issue. There was additional evidence of the time the hit-and-run occurred based on the time of the 911 call, so no confusion on that issue was likely. Because the jury was informed of the time stamp problem and there was testimony estimating the discrepancy, any potential confusion or prejudice from the erroneous time stamp was averted, and in any event, was outweighed by the video's overall relevance.

In addition to providing the jury with a live action view of the crime scene, the tape served an additional important role by providing timing of images in relation to one another. Thus, knowing that it took roughly three minutes for Silva's truck to have the encounter with Contreras and circle back around the block, the jury could determine the likelihood that Silva switched places with Tindle as the driver during that time. No irregularity in the surveillance system's minute and second timer was shown.

It is certainly not true that the jury could draw no permissible inference from the video. As described above, the video was highly relevant to the identity of the pickup truck as the instrumentality of the crime, which was relevant to identity of the perpetrator, as well as the manner in which the crash occurred, which was relevant to intent. If the time stamp discrepancy was meaningful at all, it affected only one aspect of the video's probative value, and even on that point, the time stamp discrepancy went to the weight of the evidence, not its admissibility. (See People v. Goldsmith, supra, 59 Cal.4th at p. 267 ["`The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.'"]; accord, People v. Landry (2016) 2 Cal.5th 52, 87-88.) Therefore, the court properly allowed the jury to view the video and give it whatever weight it deserved. There was no due process violation.

D. Posttrial Marsden Motion

1. Background

After the verdict was returned, on October 22, 2013, Silva's counsel filed a motion requesting a new trial on grounds of ineffective assistance of counsel, and asking the trial court to appoint new counsel to assist Silva in filing and arguing a more fully developed new trial motion. In his motion, Silva claimed his trial counsel had performed inadequately at trial and a determination more favorable to him might have resulted in the absence of his attorney's errors.8 (See People v. Smith (1993) 6 Cal.4th 684, 696 (Smith); Marsden, supra, 2 Cal.3d at pp. 123-126; Stewart, supra, 171 Cal.App.3d at pp. 396-397.)

The trial court held an in camera hearing on November 1, 2013, and took the matter under submission, announcing its ruling six days later. At the hearing, Silva complained his counsel had rendered ineffective assistance by failing to: (1) ask Contreras impeaching questions about her drug use;9 (2) impeach prosecution witnesses Chadwell and Suzi; (3) explain to the jury the route Silva took from Tindle's house to the casino which would have shown it would take only 13 minutes, thereby allowing more time to switch drivers than the prosecution's timeline allowed; (4) subpoena as a witness a man Silva said borrowed his truck on January 11, 2013; and (5) subpoena Daniel and Peggy Silva, who would have provided him with an alibi.

In response to these criticisms, Silva's trial attorney told the judge he had tried to locate but was unable to find the man who borrowed Silva's truck on the day Contreras was run over. His explanation suggests he was unable to ascertain whether anyone by the name Silva gave him even existed. Upon further questioning by the court, Silva could not remember exactly what time the man had borrowed his truck. Silva's attorney argued to the jury that Tindle could have taken Silva's truck and run over Contreras while Silva went to the store in Tindle's mother's car to buy her a pack of cigarettes. It was a tight timeline, but he tried to convince the jury that it amounted to reasonable doubt. Introducing evidence that yet another uncharged person, about whom the jury knew nothing, could have been driving Silva's truck might well have diluted the impact of counsel's theory that Tindle was the driver. A scattershot approach is not always the best defense strategy. Silva has not shown professional negligence or incompetence.

Counsel's investigator did interview Daniel and Peggy Silva. Silva had stopped by their house on January 11, but Daniel Silva was in the shower and did not see him. By the time Peggy Silva answered the door, Silva was already departing in his truck. She did catch a glimpse of him driving away at about 11:30 or noon that day. Since she would have placed him in his truck during the time period when Contreras was run down, the jury could have inferred Silva stopped by their house on his way to Bear River Casino in an attempt to give himself an alibi. Counsel wisely decided, as a tactical matter, it was too risky to put Peggy Silva on the stand.

Chadwell was also interviewed by the defense investigator and made statements helpful to Silva's case. But later, when interviewed by the prosecution's investigator, he made statements helpful to the prosecution. Counsel decided not to call him, but rather to rely on cross-examining him. The court pointed out that Chadwell was not a cooperative prosecution witness and tried to help the defense, and the prosecution's case certainly did not "hang[] on" Chadwell's testimony.

Counsel also told the judge he believed he had impeached Suzi sufficiently at trial by bringing out inconsistencies as to when she had seen Silva at Tindle's house.

On the issue of Silva's driving route, defense counsel pointed out there was no way to put evidence of that route before the jury without putting Silva on the stand. Defense counsel recommended that Silva not take the stand because counsel had successfully carved out a small timeframe in which the jury could have believed that Tindle was driving Silva's truck. Defense counsel, however, made it clear to Silva that it was ultimately Silva's decision whether to testify. Silva deferred to his counsel's recommendation and did not testify.

In the court's opinion, the failure to call witnesses was the most viable claim of ineffective assistance, but it found defense counsel acted on tactical judgment. The court concluded further investigation into witnesses was not likely to be fruitful, and there was no basis for appointing new counsel to investigate the claims. With respect to Silva's claim that he took a different route to the casino, the trial court opined that the few minutes' difference in driving time was insignificant, especially since Silva was spotted in his truck a short time before and after Contreras was hit. The trial court called the evidence against Silva "overwhelming" and said his counsel had done a "good job of at least putting a crack into that evidence that a jury might be able to say there was a reasonable possibility that somebody else had done it." The points Silva made were "minor," it said, and ignored the "big picture." The court denied Silva's motion for a new trial and his request for appointment of counsel to evaluate his trial attorney's competence.

2. The court did not abuse its discretion in denying the new trial motion and Marsden motion based on ineffective assistance of counsel at trial

Silva contends substitute counsel should have been appointed to investigate his ineffective assistance of counsel claims further before his new trial motion was denied. We review denial of a Marsden motion for abuse of discretion. (Streeter, supra, 54 Cal.4th at p. 230; People v. Clark (2011) 52 Cal.4th 856, 912; Smith, supra, 6 Cal.4th at pp. 696-697.)

Silva identifies in his opening brief three general complaints about counsel's performance: (1) failure to subpoena witnesses who could establish an alibi or support his claim of third party use of the truck; (2) "failure to advise [Silva] that the only way evidence of the route taken could come [before the jury] was through his testimony, which meant no evidence of that route came in"; and (3) failure to impeach witnesses at trial with prior inconsistent statements and failure to cross-examine the victim about her drug abuse.

Although ineffective assistance of counsel is not a statutory ground for granting a new trial (§ 1181) courts have recognized a new trial may be granted on that ground. (See, e.g., Smith, supra, 6 Cal.4th at pp. 692-693, 695; People v. Stewart, supra, 171 Cal.App.3d at pp. 393-394; People v. Fosselman, supra, 33 Cal.3d at pp. 582-583.) When a defendant makes a posttrial request for the appointment of new counsel to prepare a motion for new trial on the ground of ineffective assistance of counsel, the court must hold a hearing to allow the defendant to explain his or her reasons for believing counsel was ineffective. (Stewart, at pp. 395-396.) Once the defendant has been given that opportunity, the decision whether to appoint new counsel lies within the trial court's discretion; we will reverse only if the court abused its discretion. (Streeter, supra, 54 Cal.4th at p. 230; People v. Clark, supra, 52 Cal.4th at p. 912.)

Procedurally, "[i]f the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant." (Smith, supra, 6 Cal.4th at p. 692.) On the other hand, if the errors occurred outside the courtroom, the trial court may exercise its discretion to appoint new counsel upon a proper showing.10 (People v. Bolin (1998) 18 Cal.4th 297, 346; People v. Hines (1997) 15 Cal.4th 997, 1026; see also, Marsden, supra, 2 Cal.3d at pp. 123-124 [insisting that courts hear a defendant's complaints about counsel's failings that do not occur "within the four corners of the courtroom"].)

Silva quotes language from Stewart and People v. Diaz (1992) 3 Cal.4th 495, suggesting that, insofar as his claims of ineffective assistance concerned matters that occurred outside the courtroom, he was required only to show a "colorable claim" of inadequacy of counsel before we may declare the trial court erred in failing to appoint new counsel to assist him in moving for a new trial. (Stewart, supra, 171 Cal.App.3d at p. 396; Diaz, at p. 574.) But the Supreme Court has held, in a postconviction context as well as pretrial, a defendant must show his right to counsel was "`substantially impair[ed].'" (Smith, supra, 6 Cal.4th at pp. 690-694; see also, People v. Sanchez (2011) 53 Cal.4th 80, 88-89.) To the extent Silva attempts to persuade us to apply a "colorable claim" standard less demanding than the substantial impairment standard under Marsden, his position was rejected long ago.11 (Smith, at pp. 691-694; People v. Bolin, supra, 18 Cal.4tth at p. 346 & fn. 16.)

Silva's contentions, insofar as they challenge the adequacy of impeachment, relate to claimed inadequacy in the courtroom. On such matters, the court was present and could evaluate counsel's performance. No appointment of substitute counsel was necessary. (Stewart, supra, 171 Cal.App.3d at p. 396.)

The trial court also did not abuse its discretion in concluding there was no need for a substitute attorney to reinterview witnesses in the hope of coming up with answers more favorable to Silva. Silva's attorney's failure to call certain defense witnesses (a decision made outside the courtroom) did not amount to a substantial impairment of the right to counsel because counsel did interview and consider calling those witnesses but elected for tactical reasons not to call them. Counsel's explanations made sense and the court credited them. In reviewing a Marsden ruling, we generally defer to the trial court on issues of credibility. (People v. Myles (2012) 53 Cal.4th 1181, 1207 [court "was entitled to credit counsel's representations"]; People v. Jones (2003) 29 Cal.4th 1229, 1245.) The court did not abuse its discretion in denying the motion. (Streeter, supra, 54 Cal.4th at p. 230.)

But Silva does raise one additional instance of out of court deficient performance relating to what we will call the "different route defense," namely, that he had taken a route to Bear River Casino from Tindle's house different from the one hypothesized by the prosecution as taking him from the crime scene to the casino. If the jury had been informed of the actual route Silva traveled, he argues, the outcome of the trial may have been different.

As we understand Silva's position in the trial court, as part of his theory that he was not the driver when his truck ran over Contreras, he claimed the route he took from Tindle's house to the casino would have required only 13 minutes, or five minutes less travel time than that hypothesized by the prosecution from the crime scene to the casino (i.e., 13 minutes instead of 18 minutes), thus leaving more time available to exchange possession of Silva's truck, perhaps as much as 10 minutes instead of five.12 In discussing the different route defense, trial counsel said he had advised Silva, when asked, that he should not testify, and Silva followed his attorney's advice.13 Of course, Silva had a right to testify if he so desired, even if his attorney opposed the idea. (People v. Robles (1970) 2 Cal.3d 205, 215.) Silva does not claim his attorney misled him as to that right.

Silva did not show his attorney's failure to present evidence of the different route defense resulted in a substantial impairment of the right to counsel. It seems to us the different route defense boiled down to a timing issue, and evidence on that point could have been presented through witnesses other than Silva, but counsel elected not to follow that course. The decision not to introduce available evidence was a tactical one as to which counsel was the "`captain of the ship.'" (People v. Jackson (2009) 45 Cal.4th 662, 688.) Trial counsel could easily have felt the additional evidence would unduly complicate the proof, confuse the jury, and would not materially advance the argument there was time enough for the truck to change hands before Silva arrived at the casino. "We do not find Marsden error where complaints of counsel's inadequacy involve tactical disagreements." (People v. Dickey (2005) 35 Cal.4th 884, 922; accord, Streeter, supra, 54 Cal.4th at pp. 230-231.)

As the trial court told Silva, the different route defense failed to take account of the fact that two witnesses who knew Silva (Contreras and Suzi) saw him driving on Buhne Street just before Contreras was run over.14 The trial court concluded any testimony about different routes and times was "not going to make a difference" to the jury's verdict. We agree with that assessment.15

We see no abuse of discretion in the denial of the Marsden motion.

3. Denial of the Marsden motion did not deprive Silva of his Sixth Amendment rights through an irreconcilable breakdown in the attorney-client relationship

Silva points out that erroneous denial of a Marsden motion violates a defendant's Sixth Amendment rights. We agree that when Marsden error is established, the appropriate standard of prejudice is that stated in Chapman v. California (1967) 386 U.S. 18. (People v. Loya (2016) 1 Cal.App.5th 932, 945.) He says little more than that under his Sixth Amendment heading, but he does seem to advance an argument not raised under his Marsden heading, namely that there was an irreconcilable breakdown in the attorney-client relationship, in addition to ineffective representation.

Contrary to Silva's claim, none of his complaints about his counsel's performance suggest there was an irreconcilable conflict between them. Silva's complaints constituted mere disagreements about trial tactics. This alone did not show Silva was unable to work with his counsel. (See People v. Myles, supra, 53 Cal.4th at p. 1207.) "Tactical disagreements between the defendant and his attorney do not by themselves constitute an `irreconcilable conflict.'" (People v. Jackson, supra, 45 Cal.4th at p. 688.) The record shows that although Silva did not always agree with his counsel's tactical decisions, he was able to work with him. Silva provided his counsel with investigative leads and the names of potential witnesses, and he was able to discuss important trial matters with his attorney, including whether to testify. Silva did not carry his burden of demonstrating an irreconcilable breakdown of the relationship, and the court did not abuse its discretion in denying the Marsden and new trial motions.

Even if we assume the court erred in failing to appoint new counsel to develop a stronger motion for a new trial, we are convinced any such error was harmless beyond a reasonable doubt. Indeed, if further development of these issues was possible, it is difficult to understand why appellate counsel has not filed a petition for writ of habeas corpus raising the ineffective assistance of counsel issues. (Cf. People v. Mack, supra, 38 Cal.App.4th at pp. 1487-1488.)

E. CALCRIM No. 357: Jury Instruction on Adoptive Admissions

1. Background

The court gave the jury an instruction on adoptive admissions based on statements made by Silva when he was being interviewed by Officer Jones at Tindle's house on the day after Contreras was run down. It was the second time that day Officer Jones interviewed Silva. We have already summarized what Silva told Jones during the first interview, an audio recording of which was received as Exhibit 59. Jones did not arrest Silva or read him his Miranda rights during that interview because the only evidence he had that Silva was the driver of the truck was Contreras's statement. (Miranda v. Arizona (1966) 384 U.S. 436.)

After he left the interview, Jones learned about Duhem's surveillance tape of the crash scene and went to view it. He immediately recognized the truck in the surveillance video as Silva's, even though he could not see the license plate or identify the driver. Jones then met with Detective Harpham and together they paid a second visit to Silva, finding him at Tindle's house. The following recorded colloquy was played for the jury:

"[Officer Jones:] Uh, yesterday, uh, [Contreras] got hit with your truck. [Silva:] Pardon me? [Officer Jones:] [Contreras] got hit with your truck. That's why I'm here. That's why I was at your house this morning. Um . . . [Silva:] [Contreras] hit my truck? [Officer Jones:] [Contreras] got hit by your truck yesterday and so I wanna give you an opportunity—I watched it on video just a little bit ago—about a half an hour ago I watched it on video from surveillance, um, and I wanna give you an opportunity to tell me about that. A— and now's the time to be honest and . . . [¶] . . . [¶] [Silva:] "I j— I just think that—not because I'm in trouble or did anything wrong but I think that if—if I—I don't wanna incriminate myself in any way or any f— form, fashion but I—I don't wanna—I won't speak with the—I wanna have a lawyer present before I do any (unintelligible). [Officer Jones:] Okay."

At the time of the recording, Silva still had not been Mirandized. Nevertheless, Silva claims his refusal to respond to Jones's questions was an exercise of his Miranda rights, and cannot rightly be understood as an adoptive admission.

The jury instruction given on adoptive admissions was CALCRIM No. 357: "If you conclude that someone made a statement outside of court that tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose." Silva contends this was both instructional and constitutional error.

Silva's counsel objected to the instruction, arguing the facts did not support it because the interaction between Jones and Silva did not amount to an adoptive admission. Calling the statement "ambiguous," the court opted to give CALCRIM No. 357, suggesting it would help the jury and give Silva "more protection."

2. Even if the instruction should not have been given, it was not prejudicial

Silva does not appear to argue on appeal the recording of the statement was improperly admitted. Nor could he, because his counsel did not object at trial. (Evid. Code, § 353.) Rather, he confines his argument to the court's giving of CALCRIM No. 357. Silva argues his statement logically did not amount to an adoptive admission because he refused to discuss the matter on the basis of his Fifth Amendment privilege. Thus, the instruction allowing the jury to draw an inference of admission from his interaction with Jones violated due process. (Cf. Doyle v. Ohio (1976) 426 U.S. 610, 616-620 (Doyle) [it violates due process to impeach a defendant at trial with his post-Miranda silence]; People v. Bowman (2012) 202 Cal.App.4th 353, 363-365 (Bowman) ["The California Supreme Court has extended the Doyle rule to prohibit the prosecution's use of a defendant's post-Miranda silence as evidence of guilt during the prosecution's case-in-chief."].)

The Bench Notes to CALCRIM No. 357 direct: "Do not give this instruction if the defendant's failure to reply was based on his or her invocation of the right to remain silent." Silva argues the failure to heed this cautionary remark gives rise to more than ordinary instructional error. Because the instruction attached a penalty to his exercise of Fifth Amendment rights, Silva contends it violated due process, citing Wainwright v. Greenfield (1986) 474 U.S. 284, 290 and Doyle, supra, 426 U.S. 610. Preliminarily we note he raised no constitutional objection at trial (Evid. Code, § 353, subd. (a)), but even addressing the merits on the assumption his substantial rights could have been affected (§ 1259), we conclude no constitutional violation occurred.

In Bowman, the court recognized that Doyle" does not prohibit the prosecution's use of a defendant's prearrest silence," citing Brecht v. Abrahamson (1993) 507 U.S. 619, 628, and "does not prohibit the prosecution's use of a defendant's postarrest silence if the defendant did not receive Miranda warnings," also in reliance on Brecht. (Bowman, supra, 202 Cal.App.4th at p. 363.) Here, Silva was not under arrest and had not been Mirandized at the time of the recorded interchange with Jones. Thus, there was no constitutional error in giving the instruction, and the only question is whether it was called for by the evidence.

But we need not decide that issue, for we can dispose of Silva's argument based on lack of prejudice. (People v. Earp (1999) 20 Cal.4th 826, 886.) Even assuming the instruction should not have been given, we conclude it did not affect the outcome of the trial. Notably, the statement Silva declined to answer charged only that his truck had hit Contreras, not that he had been driving it at the time. Therefore, the instruction allowed the jury to consider Silva's silence as an admission of nothing more than what had been established as true by independent evidence: his truck was involved in the hit-and-run.

The totality of the evidence, far from being thin and dependent on credibility assessment, as Silva suggests, overwhelmingly supported the jury's verdict and was not dependent solely or even predominantly on witness credibility. The prosecution's evidence that Silva's truck ran down Contreras was practically airtight. From the matching paint chip on Contreras's clothing to the Duhem surveillance video showing Silva's distinctive-looking truck committing the act, there could be no reasonable doubt Silva's truck was involved in running Contreras down, even disregarding all the witnesses' testimony.

And all signs pointed to Silva as the driver. He was heard by Suzi an hour before the hit-and-run yelling he was going to "kill" Contreras. Silva was more agitated than his lifelong friend Chadwell had ever seen him before. There was also the recent history of run-ins between Silva and Contreras, culminating in the slashing of his tires. There was Contreras's recounting of Silva's threat to kill her as he confronted her in his pickup truck on Buhne Street just before her memory blanks out, a threat corroborated by Larkin. Both Larkin and Suzi testified the driver was alone in his truck, so it cannot be hypothesized Silva was a passenger. Suzi had actually seen Silva get into his truck at Tindle's house and drive to the point where the confrontation occurred. And, of course, there was Contreras's contemporaneous identification of Silva as the driver immediately after the hit-and-run, as recounted by Fire Captain Bakke.

Independently of any witness's testimony, the two videos, filmed 23 minutes apart, combined with the 18-minute driving time to the casino, showed Silva had enough time to run over Contreras and still get to the casino when the casino's surveillance video shows he got there. In fact, the videos cornered Silva into a tight timeline with only five minutes in which the car could have changed hands between the crime scene and the casino. Nothing in the evidence rebutted the prosecution's timeline.

Because Silva was seen by Suzi and Contreras (both of whom knew him) driving on Buhne Street just before the hit-and-run, Silva and Tindle would have had to change possession of the truck twice: once between the confrontation on Buhne Street and the actual hit-and-run, which Duhem's surveillance video shows was an interval of less than three minutes, and again between the crime scene and Silva's arrival at the casino, which left only five minutes to transfer possession of the truck a second time. Tindle, of course, denied he had run over Contreras. The evidence truly was, as the trial judge said, "overwhelming." Any arguable misinstruction on adoptive admissions was harmless beyond a reasonable doubt.16 The same harmless error analysis applies to the claimed instructional omissions relating to third party culpability. (See part II.B.4, ante.)

F. Cumulative Error

Having found no errors, we have no occasion to consider cumulative effect.

G. Unauthorized Sentence

Finally, Silva claims the sentence imposed on him for attempted murder—15 years to life—was unauthorized. The Attorney General agrees that a straight life sentence with the possibility of parole (and with no minimum term) is the only sentence available for attempted willful, deliberate, and premeditated murder. (§ 664, subd. (a).) The sentencing court appears to have relied upon section 664, subdivision (f), which applies only when the attempt is on a peace officer or firefighter (id., subds. (e), (f)). On a life sentence, Silva will be eligible for parole after seven years, rather than 15 years. (§ 3046, subd. (a).) Silva asks us to modify the judgment accordingly, and the Attorney General concurs. We agree the judgment must be modified and a new abstract of judgment prepared.

III. DISPOSITION

The judgment is modified on count 1 (attempted willful, deliberate and premeditated murder) to impose a life term with the possibility of parole, in accordance with section 664, subdivision (a), instead of 15 years to life. A new abstract of judgment shall be prepared accordingly. Except as modified, the judgment is affirmed. A copy of the amended abstract of judgment shall be sent to the California Department of Corrections and Rehabilitation.

Reardon, Acting P.J. and Rivera, J., concurs.

FootNotes


1. Statutory references are to the Penal Code unless otherwise indicated.
2. According to Tindle, there was only one such confrontation. Tindle testified it took place about 9:00 a.m. on Huntoon Street on the sidewalk in front of his house on the day he discovered the gun was missing.
3. Contreras testified she had recently cut Silva off from his supply of methamphetamine because he had been using too much. At trial, Contreras denied being under the influence of drugs at the time of the hit-and-run, but tests done when she was taken to the hospital showed she had marijuana, amphetamines, opiates, and ecstasy in her system.
4. There were two trial witnesses with the last name "Nichols." To distinguish them, we refer to Susan Nichols by her nickname "Suzi," as she was called at trial. No disrespect is intended.
5. These features included a prerunner bumper, nerve bars, a large decal on the side of the truck, and a toolbox in the back, along with various recognizable items in the bed of the truck that were still there the following day.
6. The penalty for attempted murder is a determinate term of five, seven, or nine years. (§ 664, subd. (a).) With the added finding of willfulness, premeditation and deliberation, the term is life with the possibility of parole. (Ibid.; People v. Dominguez (1992) 4 Cal.App.4th 516, 521.)
7. Detective Harpham testified at trial that the time stamp on the video was actually 41 minutes faster than the correct time.
8. The motion is also referred to in the record as a Stewart or Fosselman motion. (People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart); People v. Fosselman (1983) 33 Cal.3d 572.) We shall refer to it simply as a Marsden motion. Under Marsden, a defendant represented by appointed counsel may obtain a new appointed attorney if he or she can show defense counsel's acts or omissions "substantially impaired" his or her right to counsel due to ineffective assistance or irreconcilable conflict. (Marsden, supra, 2 Cal.3d at p. 123.)
9. Defense counsel did cross-examine Contreras about her use of methamphetamine. In denying the Marsden motion, the trial court found there had been plenty of evidence in the trial regarding Contreras's drug use, so the jury was well aware of it.
10. The Supreme Court has approved the alternative of requiring claimed errors of counsel to be raised by petition for writ of habeas corpus rather than in a posttrial motion, at least where the alleged ineffective assistance "rested primarily upon matters other than what the trial court could have observed during trial" and the new trial motion would require substantial preparation time. (People v. Cornwell (2005) 37 Cal.4th 50, 101, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
11. In the years since Smith was decided, some courts have continued to quote the Stewart "colorable claim" language (e.g., People v. Mack (1995) 38 Cal.App.4th 1484, 1487), but Smith makes clear the substantial impairment standard applies. (See, People v. Reed (2010) 183 Cal.App.4th 1137, 1144-1145 & fn. 14.)
12. Appellate counsel argues that Silva's claimed route would have taken seven minutes longer than the prosecution's timeline would have accounted for. Our review of the record suggests this was not the argument made by Silva at the hearing on the Marsden motion.
13. To the extent Silva claims his lawyer's advice not to testify was bad advice, we disagree. Viewed objectively, his attorney's advice was sound. We need not rehash the evidence to make the point that Silva could have been subjected to devastating cross-examination.
14. Silva's explanation does not account for the travel time from the crime scene to Tindle's house. Thus, even if the evidence had been introduced, it still would have allowed less than 10 minutes for a change of drivers.
15. As counsel on appeal frames the issue, trial counsel "fail[ed] to advise [Silva] that the only way evidence of the route taken could come [before the jury] was through his testimony, which meant no evidence of that route came in." This argument invites us into the attorney-client relationship more intimately than necessary to resolve the Marsden issue.
16. The error claimed here would be reversible only if it met the state standard of prejudice. (People v. Chism (2014) 58 Cal.4th 1266, 1298-1299; People v. Watson (1956) 46 Cal.2d 818, 836.) Even if we assume it violated due process to give the instruction, it would justify reversal only if it was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Earp, supra, 20 Cal.4th at pp. 856-858.) Any assumed error was harmless under either standard.

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