EL MONTE, Calif. —  The family of a former Lincoln Middle School student who was struck by a car and killed last year is calling for a harsher punishment for the suspected driver, who may get a 19-year sentence under the terms of a plea agreement.

Tina Marie Silva, 29 of Hacienda Heights, Calif. is facing time for the death of Maximillion Petrakos, a 13-year-old Santa Monica resident who was outside of the family Toyota Corolla with his mother Mary Hively when a car slammed into them, killing Petrakos and severely injuring Hively and his younger brother, Alex Petrakos.

The family had pulled over to the side of Highway 60 at 12:40 a.m. on June 6 on the way back from a Los Angeles Angels baseball game — because of her injuries, Hively no longer remembers why — when Silva allegedly hit them and drove off.

Silva was charged with murder, gross vehicular manslaughter while intoxicated and leaving the scene of an accident.

Silva has a court date in March for sentencing, at which point she will have the option to accept a plea bargain for 19 years in prison, according to Hively, who is familiar with the agreement.

Familiar, but unhappy.

“I’m appalled that the (district attorney) would offer a 19-year plea bargain,” Hively said.

If found guilty, this would be Silva’s second conviction of driving under the influence, although she was not found to have exceeded the legal maximum of .08 blood alcohol content in the 2009 offense.

The District Attorney’s Office would not comment on the plea bargain until after it comes out in court.

Hively and her sister, Brenda Petrakos, started a petition on the activism website Change.org calling on officials in California government to support a harsher sentence for the crime.

The petition already has 426 signatures.

The matter should go to court, Hively said.

“I feel it’s very unfair,” Hively said. “We were told that they were going for life, then something happened and they negotiated a plea bargain like this.”

 

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Making the deal

 

Depending who you ask, between 95 and 98 percent of cases that go through the American court system end with plea bargains.

That’s a matter of necessity, said Scott Burns, executive director with the National District Attorneys Association.

“The reality is that there are between 15 and 20 million non-misdemeanor cases prosecuted in America every year,” Burns said. “If each of those, or frankly half or a third of those, went to trial, we would need a much, much larger criminal justice system.”

Instead, attorneys forge plea bargains, agreements that offer a potentially lighter sentence in exchange for a guilty or no-contest plea.

They also offer security, said Tracy Green, a private defense attorney based in Los Angeles.

Whereas plea deals are negotiated between the attorneys involved, jury trials rely on a body of 12 unknowns, making the process a roll of the dice for both sides.

“I hate to tell people it’s like going to Las Vegas, but justice can come at a price,” Green said.

In a plea bargain, the prosecution weighs its options based on the strength of the case and whether or not they believe the defendant is a danger to society. The prosecutor can also factor in the interests of the victim or the victim’s family, Burns said.

Defense attorneys also look at the merits of the case, but also determine if it’s a financial possibility for their client to go through the expensive trial process and if they’re capable of serving time, even a reduced amount, Green said.

“What are the client’s goals? Can they risk, handle or afford emotionally or lifestyle-wise any threat of incarceration, or having a conviction of what’s been charged?” she asked.

“What’s the downside risk if you go to trial and lose?”

While neither attorney believes that the system is broken, Burns was more apt to defend it than Green, who felt that defendants risk getting a harsher sentence if they go for a trial and lose.

A recent U.S. Supreme Court decision altered the playing field a bit on plea bargains when the justices held in a 5 to 4 decision that defendants have the right to good lawyering when it comes to plea bargains.

If a lawyer acts unethically or gives really bad legal counsel, the defendant may even get a second shot at the plea, the court held.

 

 

ashley@smdp.com