People v. Silva CA2/5

Filed 6/15/21 P. v. Silva CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B306507

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA380566) v.

FRANK SILVA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, John S. Fisher, Judge. Affirmed. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,

Senior Assistant Attorney General, Idan Ivri and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________

A jury convicted defendant and appellant Frank Silva of first degree murder (Pen. Code, § 187, subd. (a)),1 and found true an allegation that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). After enactment of Senate Bill No. 1437 (Senate Bill 1437), Silva filed a petition for resentencing pursuant to section 1170.95. The trial court denied his petition without appointing counsel. Silva contends that he was entitled to appointment of counsel because he filed a facially sufficient petition for resentencing. We reject this argument, and affirm the trial court’s order. Filing a facially sufficient petition does not entitle a petitioner to appointment of counsel. Moreover, the jury’s verdict of first degree murder, whether based upon either a theory of premeditation or felony murder where Silva was the actual killer, renders Silva ineligible for section 1170.95 relief as a matter of law.