P. v. Silveira
Filed 5/19/06 P. v. Silveira CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. JOHN JEROME SILVEIRA III, Defendant and Appellant. |
A108797
(Mendocino County Super. Ct. No. SCUK-CRCR-04- 60546-02)
|
Appellant contends there was insufficient evidence to support the jury's verdict and finding regarding gang activity and that the failure to plead the aggravating sentencing factors violated his right to due process. We affirm.
PROCEDURAL HISTORY
Defendant was charged with two felony counts arising from the same incident: (1) assault (Pen. Code[1], § 245, subd. (a)(1)) with a gang enhancement (§ 186.22, subd. (b)(1)), and (2) participating in a criminal street gang (§ 186.22, subd. (a)). The jury found him guilty of both counts and found the enhancement true. The same jury then returned separate findings as to aggravating sentencing factors. Specifically, the jury found that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1))[2] and that defendant had engaged in violent conduct which indicates a danger to society (rule 4.421(b)(1)). The jury also found that the victim
was not particularly vulnerable (rule 4.421(a)(3)) and that defendant had not induced others to participate in the crime nor had he occupied a position of leadership or dominance in the crime (rule 4.421(a)(4)).
At sentencing, the court imposed the aggravated term of four years for the first count (§ 245, subd. (a)(1)), a consecutive aggravated term of four years for the gang enhancement (§ 186.22, subd. (b)(1)), and a consecutive eight months, or one-third the midterm, for the second count (§ 186.22, subd. (a)), for a total of eight years eight months in prison.
FACTS
The victim, Aaron Rodriguez, is a former member of a Sureno street gang who has had his gang tattoos surgically removed. On June 9, 2004, Rodriguez had just returned home from work when he noticed â€
