People v. Silva CA3

California Court of Appeal Feb 14, 2023 No. C095978Unpublished

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Holding. The court affirmed the defendant's murder conviction and the denial of his resentencing petition, holding that a defendant convicted of Watson murder is ineligible for relief under Penal Code section 1172.6 as a matter of law. The court also held that CALCRIM No. 362 is constitutional and remanded the case solely for the ministerial correction of the abstract of judgment regarding the degree of murder and the specification of fines and fees.

Issues

Whether a defendant convicted of Watson murder is eligible for resentencing under Penal Code section 1172.6.
Whether CALCRIM No. 362 violates a defendant's constitutional rights to due process and a fair trial.
Whether the abstract of judgment requires correction to reflect the degree of murder and specify fines and fees.

Disposition. Affirmed and remanded

Quotations verified verbatim against the opinion

“A defendant convicted of Watson murder is ineligible for relief under section 1172.6.”

“Accordingly, CALCRIM No. 362 did not violate defendant’s rights to due process or a fair trial.”

“The trial court, however, is directed to correct the abstract of judgment to reflect defendant’s conviction as one for second degree murder”

Filed 2/14/23 P. v. Silva CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Nevada) ----

THE PEOPLE, C093875, C095978

Plaintiff and Respondent, (Super. Ct. No. F18000078)

ALBERT JORGE SILVA,

Defendant and Appellant.

In March 2018, the People charged defendant Albert Jorge Silva with murder. On January 28, 2021, a jury found defendant guilty as charged, and the trial court sentenced him to an indeterminate term of 15 years to life in state prison. Defendant appealed from that conviction on March 19, 2021. He contends the trial court erred by instructing the jury with CALCRIM No. 362. We find no error. Defendant also notes errors in the abstract of judgment, which the People agree should be corrected. We will remand the matter for the limited purpose of allowing the trial court to correct the errors in the abstract of judgment and otherwise affirm the judgment.

On February 24, 2022, while the direct appeal was pending, defendant filed a petition for resentencing in the trial court, pursuant to Penal Code section 1172.6.1 The court denied the petition without appointing counsel. Defendant appealed the trial court’s denial of his petition, and the appeal was consolidated with his direct appeal. His appointed counsel asked this court for an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant was informed of his right to file a supplemental brief but did not file one. Exercising our discretion to independently review the record under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we affirm. I. BACKGROUND Between May 2006 and May 2014, defendant was convicted three times for driving under the influence. Each time he was convicted, defendant signed a “Watson” advisement: “[B]eing under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.” (See People v. Watson (1981) 30 Cal.3d 290, 296.) In May 2014, at his sentencing hearing, the trial court spoke directly to defendant: “ ‘[Y]ou also have probably been advised of this in the past. You understand that if you drive under the influence of alcohol and somebody’s killed, you can and probably will be charged with murder. Do you understand that?

People v. Silva CA3

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THE PEOPLE, C093875, C095978

ALBERT JORGE SILVA,

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