People v. Silva CA4/3

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G049584

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

GILBERTO CRUZ SILVA, OPINION

Defendant and Appellant.

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

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