People v. Silveira CA3

Filed 3/27/23 P. v. Silveira CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sutter) ----

THE PEOPLE, C096074

Plaintiff and Respondent, (Super. Ct. No. CRF19-0003109) v.

MARK ANTHONY SILVEIRA, JR.,

Defendant and Appellant.

Defendant Mark Anthony Silveira, Jr., appeals from a postjudgment order denying his petition for resentencing filed under Penal Code section 1172.6. 1 2 His appointed

1 Undesignated statutory references are to the Penal Code. 2 Defendant filed his petition under former section 1170.95. The Legislature amended section 1170.95 effective January 1, 2022, under Senate Bill No. 775 (2021- 2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2). Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 with no substantive change in the text of

1

counsel filed a brief asking this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) While we are not required to independently review the record in these circumstances (People v. Delgadillo (2022) 14 Cal.5th 216, 231 (Delgadillo)), our discretionary review of the record reveals no meritorious issues. We therefore affirm. BACKGROUND We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.) Defendant entered the victim’s home intending to steal personal property. Defendant shot the victim with a shotgun, hitting the victim in the groin and legs. Defendant pleaded no contest to attempted murder (§§ 664, 187, subd. (a)) and first degree burglary. (§ 459.) Defendant admitted that he shot the victim with malice aforethought, but without premeditation and deliberation. Defendant further admitted he personally and intentionally used the shotgun (§ 12022.53, subd. (b)) to commit attempted murder and the victim was present in the residence during the commission of the burglary. (§ 667.5, subd. (c)(21).) Defendant agreed to a stipulated sentence of 15 years in state prison in return for the prosecution agreeing to dismiss the remaining counts and enhancements. The trial court sentenced defendant to the lower term of five years in prison for attempted murder, plus a consecutive term of 10 years in prison for the firearm enhancement. For burglary, the court sentenced defendant to a concurrent upper term of six years in prison. Defendant later filed a petition for resentencing pursuant to section 1172.6. The prosecution filed a response arguing defendant was not entitled to relief because (1) defendant is not “[a] person convicted of . . . attempted murder under the natural and