Filed 6/15/21 P. v. Silva CA2/5
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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.
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS AND PROCEDURAL HISTORY2
On the night of September 18, 2010, the victim was
working as a disc jockey and selling nitrous oxide balloons at
a rave party. He filled the balloons from a nitrous oxide
tank. When inhaled, nitrous oxide produces a very short
intoxicating effect. Silva approached the victim and asked
about the price for the balloons. The victim told Silva two
balloons cost $5. Silva said the price was too high, and
walked away. Silva returned 15 or 20 minutes later. Silva
again asked the victim about the price. The victim said he
had lowered the price to three balloons for $5. Silva said it
was still too expensive, and then said something else. In
response, the victim nodded or shook his head. Silva turned
as if to leave, then pulled out a gun and shot the victim.
Silva picked up the nitrous oxide tank and walked away.
Silva and the victim were standing face-to-face when Silva
shot the victim in the chest. The victim died as a result of
the gunshot wound.
As relevant here, the trial court instructed the jury on
first degree murder under the theories of premeditation and
felony murder (CALCRIM Nos. 520, 521, 540A). With
respect to the felony murder theory, it was alleged that Silva
personally committed the fatal act, and the jury was
instructed under CALCRIM No. 540A that it must find that
2 The facts are drawn from our prior unpublished opinion in
People v. Silva (Aug. 29, 2013, B243796) (Silva), of which we have
taken judicial notice.
3
“[w]hile committing . . . robbery, the defendant caused the
death of another person[,]” before it could find Silva guilty of
first degree murder under this theory.
The jury found Silva guilty of first degree murder
(§ 187, subd. (a)), and found true the allegation that he
personally and intentionally discharged a firearm causing
death or great bodily injury (§ 12022.53, subd. (d)). The trial
court sentenced Silva to a term of 25 years to life in prison.
On direct appeal, a different panel of this court
modified the award of presentence custody credit, and
otherwise affirmed the judgment. (Silva, supra, B243796.)
On April 23, 2020, Silva filed a section 1170.95 petition
seeking vacatur of his murder conviction. Section 1170.95
was enacted as part of Senate Bill 1437, which “amend[ed]
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015,
§ 1, subd. (f).)
In a minute order dated May 6, 2020, the trial court
vacated a previously set hearing date, considered the section
1170.95 petition, and denied it. The court found that Silva
was convicted of first degree murder, that he was the actual
killer, and that the jury was not instructed regarding the
natural and probable consequences doctrine.
Silva timely appealed.
4
DISCUSSION
The jury’s first degree murder verdict was necessarily
based on either the theory that the murder was
premeditated, or the theory that Silva personally killed the
victim in the commission of a robbery, or a combination
thereof. Section 189 still permits conviction of first degree
murder where the victim was killed in the commission of a
robbery, and the defendant was the actual killer. (§ 189,
subds. (a) & (e)(1).) Therefore, the amendments to the
murder statutes (§§ 188, 189) made by Senate Bill 1473
would not stand as a bar to his conviction for murder.
(§ 1170.95, subd. (a)(3); see also People v. Cornelius (2020) 44
Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18,
2020, S260410 [actual killer ineligible for relief as a matter
of law].) Because Silva was ineligible for relief as a matter of
law, the trial court had authority to deny his facially
sufficient petition—i.e. a petition that contained the basic
averments required by subdivision (b)(1)(A), (B) and (C)3—
without first appointing counsel. (See, e.g., People v. Smith
(2020) 49 Cal.App.5th 85, 92, review granted July 22, 2020,
3 Section 1170.95, subdivision (b)(1) provides: “The petition
shall include all of the following: [¶] (A) A declaration by the
petitioner that he or she is eligible for relief under this section,
based on all the requirements of subdivision (a). [¶] (B) The
superior court case number and year of the petitioner’s
conviction. [¶] (C) Whether the petitioner requests the
appointment of counsel.”
5
S262835; People v. Verdugo (2020) 44 Cal.App.5th 320, 332–
333, review granted Mar. 18, 2020, S260493; Cornelius,
supra, 44 Cal.App.5th at p. 58; see also Dillon v. United
States (2010) 560 U.S. 817, 828–829 [holding Sixth
Amendment inapplicable to sentence modification
proceedings]; People v. Anthony (2019) 32 Cal.App.5th 1102,
1156 [“[T]he retroactive relief . . . afforded by Senate Bill
1437 is not subject to Sixth Amendment analysis”]; In re
Clark (1993) 5 Cal.4th 750, 780 [constitutional due process
guarantees demand appointment of counsel in postconviction
proceedings “if a petition attacking the validity of a
judgment states a prima facie case leading to issuance of an
order to show cause”], italics added.)
DISPOSITION
The trial court’s order denying Silva’s section 1170.95
petition is affirmed.
MOOR, J.
We concur:
RUBIN, P. J. BAKER, J.
6