Judge denies challenge from teenage defendant in deadly Modesto shooting

A judge on Friday rejected a defense motion challenging the constitutionality of charges against a teenage boy accused in the fatal shooting of 13-year-old Brisa Covarrubias. The girl was gunned down nearly five months ago while standing outside her west Modesto home.

Jeffrey Silva, 16, is one of five defendants charged with murder in Covarrubias’ death. He is the only one in the case who is a minor charged as an adult.

A special circumstance allegation means Silva could face a sentence of life in prison without parole if he is convicted. Doug Maner, Silva’s attorney, argued that life in prison for a teenage boy is cruel and unusual punishment, and that therefore the judge should remove the special circumstance allegation from his client’s charges.

Maner told the judge facing such punishment is not appropriate for his client, especially since he is not the accused shooter in the murder case. He said a life sentence doesn’t take into account the possibility of rehabilitation.

Deputy District Attorney Wendell Emerson argued that the special circumstance allegation is constitutional. The prosecutor also said a judge has the discretion at sentencing to considering mitigating factors before deciding whether a minor spends the rest of his life in prison.

Stanislaus Superior Court Judge Thomas Zeff said the defense motion was premature, since this is an issue that would be considered after a conviction during sentencing. It still has not been determined whether the defendants will stand trial.

The judge on Friday scheduled a preliminary hearing to begin Nov. 17 for the five defendants. At the conclusion of the hearing, estimated to last about five days, Zeff will determine whether there’s enough evidence for the defendants to stand trial.

The shooting occurred about 12:20 a.m. May 30 in the 1600 block of Pelton Avenue, a few blocks west of Sutter Avenue in west Modesto. The girl was outside with her brother and one of his friends.

The girl’s family has said a man who pulled up in a Chevrolet pickup asked the teens, “Do you bang?” – asking whether they were in a gang. The teens said no, but the man started shooting.

The defendants are charged with murder and attempted murder in the shooting of Covarrubias and her 15-year-old brother, who also was shot but survived.

Emilio Silva, 19, and Juan Carlos Cruz, 24, are being prosecuted separately, for now. Emerson said Friday that he is ready to file a motion to consolidate their case with the case against the other defendants, Angel Julian Cruz, 22, Cesar Israel Cruz, 21, and Jeffrey Silva.

That consolidation motion will be heard in court Nov. 17, shortly before the preliminary hearing begins.

The defendants also face enhancements for allegedly acting with premeditation, participating in an offense in which one of the suspects used a gun causing great bodily injury, and committing a crime for the benefit of the Sureños street gang, according to filed criminal complaints.

Jeffrey Silva and Angel Cruz on Friday morning pleaded not guilty to the charges and denied the enhancements. The other defendants had already been arraigned and pleaded not guilty.

The adult defendants in the murder case are eligible to face the death penalty if convicted. The prosecutors, however, have not informed the court whether they will seek capital murder charges against these defendants. Jeffrey Silva is not eligible for the death penalty because he is a minor.

This story was originally published October 14, 2016 at 3:09 PM with the headline "Judge denies challenge from teenage defendant in deadly Modesto shooting."