People v. Silva CA5

Filed 11/20/23 P. v. Silva CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F084982 Plaintiff and Respondent, (Super. Ct. No. F16901495) v.

PATRICK JOHN SILVA, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Michael G. Idiart, Judge.

Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Peña, Acting P. J., Meehan, J. and Snauffer, J.

INTRODUCTION In 2016, defendant Patrick John Silva pled guilty to two counts of second degree robbery (Pen. Code, § 211; counts 1 & 7) and admitted section 12022, subdivision (b)(1) enhancement allegations as to those counts. (Undesignated statutory references are to the Penal Code.) He also admitted he suffered a prior strike conviction that also qualified as a serious felony under section 667, subdivision (a)(1). The court sentenced defendant to an aggregate term of 14 years, which included a five-year sentence for the prior serious felony enhancement (§ 667, subd. (a)(1)). In August 2022, a letter from the Secretary of the California Department of Corrections and Rehabilitation (CDCR) was filed with the superior court, providing the court with jurisdiction to consider striking the section 667, subdivision (a)(1) enhancement and recommending recall and resentencing in accordance with section 1170.03, subdivision (a)(1), now section 1172.1. The court issued a minute order stating it had read and considered the request, and the request was denied. It also sent a letter to CDCR indicating its reasons for the denial and stated a hearing on the matter was “unnecessary.” In this appeal, the parties agree the trial court erred in concluding defendant was not eligible for resentencing without following the procedures required under section 1172.1. We agree the court’s order should be reversed and conclude the matter must be remanded for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY In 2016, a complaint was filed against defendant alleging six counts of second degree robbery (§ 211; counts 1, 2, 3, 6, 7 & 8) and one count of attempted second degree robbery (§§ 664, 211; count 5) with allegations that during the commission and attempted commission of the offenses defendant used a deadly and dangerous weapon, to wit, a knife, within the meaning of section 12022, subdivision (b)(1). It further alleged defendant committed assault with a deadly weapon (§ 245, subd. (a)(1); count 4),