1

Filed 12/8/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH SILVA,

Defendant and Appellant.

A160827

(Alameda County Super. Ct.

No. 172865D)

In 2014, Joseph Silva was convicted in a jury trial with two 

codefendants of two counts of first degree murder arising out of a homeinvasion robbery and sentenced to 50 years to life in prison. In October 2019, 

Silva filed a petition for resentencing as a non-killer under Penal Code 

section 1170.95,1 through which he succeeded in having his two murder 

convictions vacated and was resentenced to a prison term of 16 years. The 

judge sentenced him not just based on two in-concert home-invasion robberies

in lieu of the two murders, but on a total of six home-invasion robberies or 

attempted robberies based on the number of robbery victims alleged in the 

original information. He was never tried or convicted of any of these 

robberies, nor did the jury make findings against him as to any of them.

1 Undesignated statutory references are to the Penal Code. 

Subdivisions cited without reference to a statute are the subdivisions of 

section 1170.95.
2

On appeal, Silva argues that it was constitutional error under the 

Fifth, Sixth, and Fourteenth Amendments to impose sentence upon him for 

offenses of which he was never found guilty by a jury, and that as a result, we 

must reverse and remand with directions that he be resentenced to a shorter 

term for only two second degree robberies. For his part, the Attorney General 

also requests a remand, but he contends Silva should have been sentenced to 

a longer term than the one the court imposed. We agree with Silva that due 

process requires notice and an opportunity to be heard on any request by the 

prosecution to designate an unadjudicated offense for resentencing under 

subdivision (e) of section 1170.95, but on the record presented here we believe 

that bedrock standard was met. Save for this procedural due process aspect 

of the position Silva takes here on appeal, we reject his various claims of 

constitutional error and conclude that the remand requested by each party is 

unnecessary. Instead, we shall strike one of the robberies (count 8) and 

otherwise affirm.

I. BACKGROUND

A. The Underlying Crimes

This court is well acquainted with the crimes underlying this appeal, 

having filed four previous opinions in the direct appeal in its various 

incarnations in docket number A144079.

2 At Silva’s request, we have taken 

judicial notice of the entire appellate record in A144079. Three of our four

prior opinions are contained in the clerk’s transcript of Silva’s current appeal.

(See fn. 2, ante.)

2 People v. Tabron (Nov. 28, 2017, A144079) (nonpub. opn.) is not 

contained in the resentencing record; the other three opinions are: People v. 

Tabron (Dec. 7, 2018, A144079) (nonpub. opn.); People v. Tabron (Aug. 26, 

2019, A144079) (nonpub. opn.); People v. Tabron (Feb. 11, 2020, A144079) 

(nonpub. opn.).
3

The two murders occurred during a 3:00 a.m. home-invasion robbery at 

the Gonzalez house in Oakland in March 2013, undertaken to settle a drug 

debt owed by Esteban Gonzalez, Jr. (Junior) to Joseph Tabron, one of Silva’s 

codefendants. Junior lived with his parents and others3in the Gonzalez

house. Tabron, a drug dealer who lived around the corner, masterminded the 

robbery. Tabron’s uncle, Joseph Castro, a longtime methamphetamine addict 

who lived with Tabron, participated in the robbery and was the third 

codefendant at trial. Another robber, called “Taco” during the home invasion, 

was involved but was never identified.

Guns drawn, Tabron and Taco corralled everyone in the house into a 

back bedroom, took their cell phones and money, and looted the place of 

computers, televisions, collectibles, and other valuables. Tabron then ordered 

the victims to lie face-down on the floor just before the robbers left, telling 

them not to call the police or he would come back and kill them all.

The two murder victims, Trisha Forde and Noe Garcia, did not live in 

the Gonzalez house. Forde entered the back bedroom while the robbery was 

in progress, apparently to buy drugs, and was planning to meet up with 

Garcia afterwards. After taking her money, Tabron and Taco forced Forde at 

gunpoint to go outside with them, where gunshots soon erupted. Garcia, who 

was apparently coming to meet Forde, may have been involved in the 

gunplay, but Forde and Garcia were shot and killed with two different guns 

within a minute or two after she was forced from the house. Both were shot 

mostly from behind, including in the back of the head at close range. After 

the gunfire, witnesses heard the screeching of tires.

3 The residents of the Gonzalez house were Junior, his parents, 

Esteban and Dana Gonzalez, Esteban’s brother, Raul Gonzalez, Jose 

Mendoza, and Martin Ascencio. Esteban and Junior were drug dealers.
4

B. Silva’s Role

Silva’s involvement came after the robbery was underway. He testified 

at trial that he had bought an “eight ball,” or an eighth ounce of

methamphetamine, from Tabron earlier in the evening and sold half to a 

friend. Silva went to Tabron’s house to pay him for the drugs after 3:00 a.m. 

but found no one at home. Tabron’s brother, Jeffrey Tabron (Jeffrey),

4

just 

then drove up in his car and asked Silva to help load a flat-screen TV, some 

laptops, and other items from Jeffrey’s car into Silva’s truck. Silva obliged, 

and Jeffrey then asked Silva to come around the corner to load another TV

into his truck.

Once at the Gonzalez house, as Silva helped load a second TV into his 

truck, “red flags went up” and he knew “somethin’ was goin’ down,” but he 

continued helping load more items into his truck. Silva, testifying at trial,

denied entering the Gonzalez house that night. In a police interview in 

September 2013, however, he said he went inside and saw several people 

lying face-down on the floor in a back bedroom, with a masked man standing 

over them holding a gun. When Silva went into the house a second time, he 

saw a man pushing a woman out of the door but could not see his face 

because he was wearing a hood. Silva told the police he saw Tabron and 

Jeffrey with guns that night and saw Tabron fire his weapon. Silva

acknowledged in his police interview that he knew a “home invasion” was 

underway.

Silva testified he left the Gonzalez house with the two TV’s shortly 

after loading the second one into his truck, around 4:05 a.m., but the 

4 Jeffrey was also charged with the murders and other crimes in the 

original information and with the murders in the amended information. The

trial court granted Jeffrey’s motion to sever his case from his codefendants’.
5

Shotspotter gunshot detection system registered the shots at 3:54 a.m. Silva 

testified he never saw Garcia’s or Forde’s bodies, but he told the police he saw 

a body on the ground.

C. The Charges and the Trial

In the original information, the codefendants were charged in count 1 

with Garcia’s murder (§ 187) and in count 2 with Forde’s murder (§ 187). 

Those charges were combined with six robbery charges (§§ 211, 213, 

subd. (a)(1)(A)), one for each robbery victim in the Gonzalez house at the time 

of the home invasion,

5 and four counts of kidnapping to commit another crime

(§ 209, subd. (b)(1)), the alleged victims being Raul Gonzalez, Junior, Forde 

and Mendoza.6 By the time of trial, however, the district attorney had 

amended the information to allege only the two murders against all three

codefendants and a felon-in-possession-of-a-firearm charge against Tabron

(§ 29800, subd. (a)(1)), together with arming enhancements against all 

defendants (§ 12022, subd. (a)), two prison priors against Tabron, ten prison 

priors against Castro, and one prison prior against Silva (§ 667.5, subd. (b)).

The amended information charged Tabron with the special circumstance of 

robbery for both murders (§ 190.2, subd. (a)(17)(A)), and kidnapping (§ 190.2, 

subd. (a)(17)(B)) and multiple murders (§ 190.2, subd. (a)(3)) for Forde’s 

5 The robbery victims were named as Trisha Forde (count 3), Jose 

Mendoza (count 4), Raul Gonzalez (count 5), Dana Gonzalez (count 6), Junior

(attempted robbery) (count 7), and Jose Hernandez (count 8). The Attorney 

General contends there were nearly a dozen people present in the Gonzalez 

house when the crimes took place, which is why he urges us to remand for 

resentencing in part so the superior court might redesignate more felonies in 

lieu of the two murder counts and might impose a longer sentence on remand.

6 The kidnapping counts were dismissed at the prosecution’s request

before the amended information was filed.
6

murder. No robberies were charged, but the jury was instructed on robbery, 

burglary and kidnapping, and on felony murder and aiding and abetting.

The jury found all three codefendants guilty of both murders and 

Tabron guilty on count three, the felon-in-possession-of-a-firearm charge. 

There were no jury findings specifying any felony it found true on the basis of 

the felony-murder instruction. It found the robbery and kidnapping special 

circumstance allegations true for Tabron but did not reach a finding on the 

multiple murders special circumstance. It found true that Tabron was armed 

with a firearm during the commission of the offenses but did not find that 

Castro or Silva was armed.

After a bifurcated trial on the prior conviction allegations, Judge Allan 

Hymer sentenced Tabron to two consecutive terms of life in prison without 

possibility of parole, plus four years. He sentenced both Castro and Silva to 

50 years to life in prison after dismissing their prior convictions in the 

interests of justice. (§ 1385.)

D. The Proceedings Under Section 1170.95

After his convictions were affirmed but his plea for relief on direct 

appeal under Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437)

was rejected (People v. Tabron, supra, A144079 [Aug. 26, 2019]; see People v. 

Gentile (2020) 10 Cal.5th 830, 839 (Gentile)), Silva filed a petition for 

resentencing in Alameda County Superior Court under section 1170.95. 

Judge Morris Jacobson, who had presided over the preliminary examination 

in the underlying case, ordered the prosecution to respond to the petition and 

appointed counsel for Silva. (See People v. Lewis (2021) 11 Cal.5th 952, 960–

970 (Lewis).)

In its response, the prosecution conceded that Silva had made a prima 

facie showing of eligibility for relief in that he could not be convicted of the 

two murders under current law due to statutory revisions enacted by Senate 
7

Bill 1437. (§§ 188, 189, subd. (e)(2) & (3), 1170.95, subd. (d)(2).) The 

prosecution specifically conceded there was “no evidence he either harbored 

an intent to kill or was a major participant in the underlying crime and acted 

with reckless indifference to human life.” Given the People’s concessions, 

Judge Jacobson conducted no evidentiary hearing under subdivision (d)(3), 

but he took briefing, received letters from interested third parties, and heard 

argument on the legal and factual aspects of resentencing under 

subdivision (e).

On July 30, 2020, the People filed a resentencing memorandum that 

summarized aggravating and mitigating factors for sentencing under 

California Rules of Court, rules 4.421 and 4.423 based on Silva’s history and 

his role in the crimes underlying his murder convictions. The memorandum 

did not make a specific resentencing recommendation.

At the judge’s request, on August 4, 2020, the prosecution filed an 

updated resentencing memorandum that attached the presentence probation 

report prepared in 2015 describing the crimes and excerpts from statements 

made by Silva in his police interviews. The updated resentencing 

memorandum also said the prosecution intended to ask for a 24-year 

sentence, calculated as follows: “For the home invasion robbery of Trisha 

Forde, impose the aggravated term of 9 years. (Penal Code §§ 211, 213(a)(1).)

[¶] For each of the four other home invasion robbery victims, impose onethird the midterm of home invasion robbery, for a total of 8 years. (Penal 

Code §§ 211, 213(a)(1); [o]ne-third the middle term of the triad for homeinvasion robbery, 3-6-9.) [¶] For the one victim of attempted home-invasion 

robbery, impose one-half of one-third of the midterm for a total of 1 year. [¶]

For each of the six crimes, impose a 1-year arming clause enhancement

pursuant to Penal Code section 12022(a)(1) for a total of 6 years.”
8

Thus, the district attorney proposed that the court revive the arming 

enhancements rejected by the jury, arguing that the jury misunderstood the 

instruction and incorrectly found the enhancements not true for Silva and 

Castro. (See § 12022, subd. (a) [defendant guilty of enhancement if principal 

armed with a firearm].) The Attorney General does not renew this argument 

on appeal. The updated resentencing memorandum was the first written 

notice to Silva that he was potentially subject to resentencing for the multiple 

robberies alleged in the original information.

The next day, Silva’s attorney filed “defendant’s 1170.95 subdivision (e) 

memorandum,” in which he proposed the “legally correct sentence is 

redesignation of Mr. Silva’s two murder convictions as two residential 

robberies sentenced consecutively.” Although defense counsel referred to the 

redesignated offenses as “residential robberies,” he appears to have actually 

had in mind home-invasion robberies in concert based on the sentencing triad 

he quoted (3-6-9 years) and the statute he cited (§ 213, subd. (a)(1)(A)). 

Under his calculation, if the upper term of nine years were imposed for the 

Forde robbery in lieu of the Forde murder and two years consecutive (onethird the middle term) for a second in-concert home-invasion robbery in lieu 

of the Garcia murder, that would produce an 11-year sentence, which is what 

he advocated. This amounted to an implicit concession that the murders 

could be redesignated as home-invasion robberies in concert. Defense 

counsel, at the redesignation and resentencing hearing, withdrew that 

concession and urged the court to redesignate the murders as second degree 

robberies (2-3-5 triad), which would have produced a maximum sentence of 

six years (§ 213, subd. (a)(2)).

E. Redesignation and Resentencing Under Subdivision (e)

On August 13, 2020, the court held a redesignation and resentencing 

hearing, entertained argument from both sides, and granted Silva’s petition 
9

under section 1170.95. Judge Jacobson vacated the two murder convictions, 

recalled those sentences, and imposed no sentences on those counts. The 

court agreed with the defense that it could not impose the arming 

enhancements the jury had found not true, while rejecting the defense 

position that it was limited to resentencing on two robbery counts 

corresponding to two redesignated murder convictions. Although Judge 

Jacobson thought the evidence also supported a kidnapping conviction, he did 

not “wish to go outside the information” and declared the underlying felony in 

the murders to be a home-invasion robbery in concert. He also ruled he could 

impose terms for all robbery counts included in the original information, even 

though those counts were dropped from the amended information and were 

not determined at trial.

Judge Jacobson declared the underlying felonies for the two murders to 

be five home-invasion robberies in concert (counts 3 through 6 and 8) and one 

attempted home-invasion robbery in concert (count 7). The original 

information charged each robbery as a “home-invasion robbery in concert”;

none was charged as generic second degree robbery or even as simple 

residential robbery. He took this course because subdivision (e) implicitly 

provides for factfinding by the judge presiding over the section 1170.95 

proceedings in redesignating the conviction as one for the underlying felony 

or felonies and imposing the appropriate sentence. (See People v. Howard

(2020) 50 Cal.App.5th 727, 736–738 (Howard); cf. People v. Fortman (2021) 

64 Cal.App.5th 217, 223–226 [subd. (d)(3)], review granted July 21, 2021, 

S269228 (Fortman).)

Judge Jacobson imposed a total prison term of 16 years, computed as 

follows: a nine-year principal upper term on count 3 for in-concert homeinvasion robbery of Forde; consecutive two-year subordinate terms (§ 1170.1, 
10

subd. (a)) on counts 4, 5 and 6 for first degree home-invasion robbery in 

concert of Jose Mendoza, Raul Gonzalez and Dana Gonzalez; a consecutive 

one-year term on count 7 for in-concert home-invasion attempted robbery of 

Junior; and a concurrent six-year term on count 8 for first degree homeinvasion in-concert robbery of Jose Hernandez.

The judge called Silva a “full and voluntary participant in the home 

invasion robbery.” He found three aggravating circumstances with respect to 

the crime and no mitigating circumstances. He found the only mitigating 

circumstance relating to Silva personally that “arguably applies” was his 

early admission of wrongdoing, while all the aggravating factors applied.

Silva timely appealed, contending his new sentence was unauthorized 

under section 1170.95, subdivision (e) and violated his fundamental 

constitutional guarantees because the judge imposed sentences on six alleged 

robbery and attempt offenses that had never been tried to the jury and of 

which he had not been convicted. He claims the sentence imposed was 

erroneous as a matter of law, and not just an abuse of discretion. At least in 

this circumstance, the judgment is appealable. (See Couzens et al.,

Sentencing Cal. Crimes (The Rutter Group 2021) § 23.51(M), pp. 23-198 to 

23-199 (rev. 9/2021) (Couzens).)

II. DISCUSSION

A. Senate Bill 1437 and Section 1170.95

Under the felony-murder rule in effect at the time of Silva’s crimes, any 

killing “committed in the perpetration of, or attempt to perpetrate” certain 

specified crimes, including robbery, even for a non-killer participant in the 

felony, was “murder of the first degree. All other kinds of murders [were] of 

the second degree.” (Former § 189; see Fortman, supra, 64 Cal.App.5th at 

p. 222, fn. 4, review granted.) Senate Bill 1437, which enacted various Penal 

Code amendments that became effective January 1, 2019, significantly 
11

altered liability for murder under the theories of felony murder and the 

natural and probable consequences doctrine. (See Lewis, supra, 11 Cal.5th at 

p. 957; Gentile, supra, 10 Cal.5th at pp. 846–848.) “In the introductory 

legislative ‘findings’ of Senate Bill 1437, our Legislature declared that its 

purpose was to more closely align the punishment for murder with one’s ‘own 

level of individual culpability.’ (Stats. 2018, ch. 1015, § 1(d); see Gentile, at 

pp. 845–846 [so noting].)” (Fortman, at p. 225; see Howard, supra, 

50 Cal.App.5th at pp. 735, 742.)

By adding section 1170.95, Senate Bill 1437 also set forth a procedure 

by which non-killers convicted under the old law could have their convictions 

vacated and could be resentenced under the new law. (Lewis, supra, 

11 Cal.5th at p. 957.) As a non-killer, Silva can now avail himself of 

section 189, subdivision (e), which makes a non-killer liable for murder only if 

he or she, with the intent to kill, assisted the actual killer in a first degree 

murder, or was a “major participant” in the underlying felony who acted

“with reckless indifference to human life.” (§ 189, subd. (e)(2) & (3).) The 

prosecution conceded Silva was not a major participant in the underlying 

felonies and had no intent to kill.

Typically, once a petitioner makes a prima facie showing of eligibility

for relief, the judge issues an order to show cause, and an evidentiary hearing 

is held in which the prosecution has the burden of proof beyond a reasonable 

doubt that the petitioner is ineligible for relief under the statute. (§ 1170.95, 

subd. (d)(3).) At the eligibility hearing, both the prosecution and the defense 

may rely on the record of conviction or may introduce new evidence or both. 

(Ibid.; Fortman, supra, 64 Cal.App.5th at p. 223, review granted.) A leading 

commentator has suggested the evidence at a subdivision (d)(3) hearing “can 

include the abstract of judgment, the section 969b prison packet, the charging 
12

document and plea form, transcripts of the petitioner’s plea, the factual basis 

given for the plea, preliminary hearing and trial transcripts, and appellate

opinions.” (Couzens, supra, § 23.51 (J)(2), pp. 23-184 to 23-185; see People v. 

Myles (2021) 69 Cal.App.5th 688, 697–703 [parole comprehensive risk 

assessment report and transcript of parole suitability hearing admissible as 

“ ‘new evidence’ ” under subdivision (d)(3)].)

The parties may waive the eligibility hearing and proceed directly to 

resentencing if the prosecution concedes the petitioner’s eligibility for relief

(§ 1170.95, subd. (d)(2)), as it did here. Once the petitioner is determined to 

be entitled to relief, “the prior conviction, and any allegations and 

enhancements attached to the conviction, shall be vacated and the petitioner 

shall be resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3).)

But the statutory scheme specifically contemplates circumstances in which a 

petitioner may be resentenced for a “target offense” or an “underlying felony” 

that was not originally charged. Under section 1170.95, subdivision (e)—the 

provision at issue in this case—“[i]f . . . murder was charged generically, and 

the target offense was not charged, the petitioner’s conviction shall be 

redesignated as the target offense or underlying felony for resentencing 

purposes. Any applicable statute of limitations shall not be a bar to the

court’s redesignation of the offense for this purpose.” (§ 1170.95, subd. (e).)

Compared with subdivision (d)(3), subdivision (e) contains little detail as to 

how the redesignation and resentencing process is to be conducted. To 

address Silva’s arguments on appeal, we will explore that subject in some 

depth.

B. The Parties’ Positions

Silva contends under the foregoing provisions he could only be 

sentenced for two redesignated second degree robberies in lieu of his two first

degree murder convictions. He contends his rights to notice and an 
13

opportunity to defend under the Fifth and Fourteenth Amendments, and jury 

trial, confrontation, and counsel under the Sixth Amendment, were violated 

by the redesignation procedure. Redesignating two murders as six robbery 

offenses of which he was never convicted, he argues, is inconsistent with the 

legislative intent and violates his fundamental constitutional rights.

The Attorney General takes the position that (1) the murder of Forde 

was properly redesignated a first degree home-invasion robbery in concert; 

(2) the murder of Garcia should have been redesignated a first degree homeinvasion robbery in concert; (3) the court acted within its discretion under 

section 1170.95 in imposing a sentence including punishment for first degree 

in-concert home-invasion robbery and attempted robbery on counts 4 through 

7 of the original information; and (4) Silva is correct that there was 

insufficient evidence to support a redesignation on count 8 and thus should 

not have been sentenced on that count.

As a result, both parties agree the matter should be remanded for 

resentencing. Notwithstanding their agreement, we conclude a remand 

would be an idle act; we shall strike count 8 and affirm the remaining counts.

C. Sentencing Silva Based on In-concert Home-invasion Robberies

Before we decide whether Silva could be resentenced for six robbery 

and attempt offenses or only two, we must consider whether the judge erred 

in redesignating Forde’s murder as a first degree home-invasion robbery in 

concert. The parties agree the underlying felony was robbery, but disagree 

whether it could be redesignated as an aggravated form of robbery. It makes 

a difference in sentencing because the robbery statutes, then and now, define 

as first degree robbery, among other things, “every robbery which is 

perpetrated in an inhabited dwelling house.” (§ 212.5, subd. (a).) Most other 

forms of robbery are of the second degree. (§ 212.5, subd. (c).) But there is 

yet another aspect of this case that affects resentencing under section
14

1170.95. Second degree robbery is punishable by two, three, or five years in 

state prison (§ 213, subd. (a)(2)); residential robbery is ordinarily punishable 

by three, four, or six years (§ 213, subd. (a)(1)(B)), but in the specific 

circumstance where the “defendant, voluntarily acting in concert with two or 

more other persons, commits the robbery within an inhabited dwelling 

house,” it is punishable by imprisonment for three, six, or nine years (§ 213, 

subd. (a)(1)(A)).

In the redesignation and resentencing hearing, defense counsel initially 

argued Silva should be sentenced to two consecutive home-invasion robberies 

in concert, for a total of 11 years in prison (3-6-9 triad), but he later withdrew 

his concession on this point and argued only generic, second degree robberies 

should be redesignated. Under his theory that an in-concert home-invasion 

robbery redesignation was not allowed under the statute—which remains 

Silva’s theory on appeal—Silva would be subject to a maximum sentence of 

six years in prison (2-3-5 triad) for two second degree robberies sentenced 

consecutively. (§§ 213, subd. (a)(2), 1170.1, subd. (a).)

Silva’s contention has no merit. More than a year ago, in Howard, 

supra, 50 Cal.App.5th 727, Division Five of this court rejected the same 

argument by a petitioner under section 1170.95 whose murder conviction was 

based on a nighttime residential burglary with a codefendant who shot and 

killed an elderly woman during the robbery. At trial, the court “instructed 

the jury on aiding and abetting, felony murder, and general burglary . . . . 

The jury convicted Howard of first degree murder . . . with a felony-murder 

special circumstance, finding Howard was engaged in the commission of the 

crime of burglary . . . .” (Howard, supra, at p. 732, citations omitted.) In an 

initial appeal, Howard obtained vacatur of the special circumstance finding, 
15

but his murder conviction was otherwise affirmed. (Id. at p. 733.)7 Then, on 

remand, following the passage of Senate Bill 1437, Howard filed a 

resentencing petition seeking vacatur of his murder conviction. (Howard, at 

p. 733.) Under section 1170.95, subdivision (d)(2), the prosecution conceded 

eligibility for resentencing, and as in this case, the court proceeded directly to 

resentencing under section 1170.95, subdivision (e). (Howard, at p. 733.)

Howard made no attempt to argue he could not be resentenced for 

committing a burglary, the sole offense for which he was ultimately 

resentenced. The only dispute was over the degree of burglary that could be 

used as the “underlying felony” under section 1170.95, subdivision (e). 

Howard argued for a sentencing triad based on general burglary, but the 

court chose to resentence him for first degree burglary, with its higher 

sentencing triad, since the undisputed facts at trial showed that the offense 

took place in a residence. (Howard, supra, 50 Cal.App.5th at p. 738.) The

court also designated Howard’s burglary conviction a violent felony (§ 667.5, 

subd. (c)(21)) and reimposed an arming enhancement (§ 12022, subd. (a)(1)) 

that had earlier been vacated along with the murder conviction as part of the 

relief Howard was entitled to under section 1170.95. (Howard, at pp. 740–

741.) On appeal, Howard found all these sentencing decisions were within 

the resentencing court’s discretion. (Id. at p. 742.)

Howard, like Silva, claimed a generic murder conviction based on 

felony murder, with no underlying felony charged, could only be redesignated

7 The basis of the reversal was that “the evidence did not establish 

Howard acted with reckless indifference to human life” (Howard, supra,

50 Cal.App.5th at p. 733), not that there was any deficiency in the evidence 

that the murder took place in the course of a burglary.
16

as a second degree felony, not an aggravated form of the felony.8 (Howard,

supra, 50 Cal.App.5th at p. 738.) The Court of Appeal rejected that argument 

on both statutory construction and constitutional grounds, holding a 

resentencing court could redesignate a vacated murder conviction as a lesser 

offense commensurate with his participation in the underlying felony, not 

just generically, but with the petitioner’s individual culpability in mind based 

on the evidence at trial. (Howard, supra, 50 Cal.App.5th at pp. 738–740, 742; 

see People v. Gonzales (2021) 65 Cal.App.5th 1167, 1174–1175 (Gonzales).) 

What Howard did not say explicitly, but what it authorized in practice, was 

factfinding by the resentencing judge, something we believe is implicit in the 

redesignation process. (Cf. Fortman, supra, 64 Cal.App.5th at pp. 224–225

[judge is “independent trier of fact” in hearing under subd. (d)(3)], review 

granted.)

D. Sixth Amendment Right to Jury Trial and Other Trial Rights

The question whether such factfinding by the judge offends the federal 

Constitution was also answered by Howard, supra, 50 Cal.App.5th at page

740. Silva contends his Sixth Amendment right to jury trial was violated by 

the proceedings below because he was sentenced on charges never proved to a 

jury. The Sixth Amendment applies “[i]n all criminal prosecutions.” (U.S. 

Const., 6th Amend.) A petition under section 1170.95 is not a criminal 

prosecution, and the Legislature has very clearly placed in the judge’s hands 

8 Silva also claims his sentence violated section 1157, which specifies

that when the degree of the crime is not indicated by the fact finder, it “shall 

be deemed to be of the lesser degree.” Silva claims the robberies therefore 

must be sentenced as second degree. Howard rejected that argument, too. 

(Howard, supra, 50 Cal.App.5th at pp. 739–740.) We agree the argument is 

meritless.
17

the decision about redesignation. Howard held there is no Sixth Amendment 

bar to its doing so.

“The retroactive relief provided by section 1170.95 reflects an act of 

lenity by the Legislature ‘that does not implicate defendants’ Sixth 

Amendment rights.’ [Citations.] [¶] Here, the process by which a trial court 

redesignates the underlying felony pursuant to section 1170.95, 

subdivision (e) does not implicate Howard’s constitutional jury trial right 

under Apprendi v. New Jersey (2000) 530 U.S. 466 or Alleyne v. United States

(2013) 570 U.S. 99. The redesignation does not increase Howard’s sentence.

We reject Howard’s argument that the residential burglary designation 

violated his constitutional due process rights.” (Howard, supra, 

50 Cal.App.5th at p. 740.)

Though Silva tries to convince us that Howard was wrongly decided, 

this Division recently joined several other intermediate appellate courts that 

have agreed with Howard’s Sixth Amendment analysis. (People v. James

(2021) 63 Cal.App.5th 604, 610–611.) Hence, we reject Silva’s argument that 

his new sentence violates the Sixth Amendment. (See People v. Perez (2018) 

4 Cal.5th 1055, 1063–1064 [retroactive application of Proposition 36, the 

Three Strikes Reform Act of 2012, is a legislative act of lenity that does not 

implicate Sixth Amendment rights].)

E. Due Process

1. A petitioner under section 1170.95, subdivision(e) is entitled 

to notice and an opportunity to be heard

While the Sixth Amendment has no application to a section 1170.95 

resentencing proceeding, those who seek section 1170.95 relief do not 

sacrifice their rights to due process under the Fifth and Fourteenth

Amendments. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15.) 

Silva raises the due process issue, but briefly, and relying on cases involving
18

original criminal prosecutions. He cites a selection of cases dealing with the 

pleading and sentencing rights to which a defendant is entitled in a criminal 

prosecution. (People v. Anderson (2020) 9 Cal.5th 946, 953 [underlying the 

statutory pleading requirements are constitutional rights to notice and an 

opportunity to be heard at trial]; People v. Mancebo (2002) 27 Cal.4th 735, 

740–750 [court violated due process by imposing sentence on multiple victim

circumstance under the one-strike law (§ 667.61, subd. (e)(5)) that had not 

been pleaded and proved]; People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12 

[conviction or sentence may not be imposed upon an uncharged 

enhancement]; People v. Davis (2002) 102 Cal.App.4th 377, 385 [section 290 

registrant could not be convicted of failing to notify one sheriff’s department 

of his move out of the county when the information had charged failure to 

notify a different county’s sheriff’s department of a different move]; cf.

Presnell v. Georgia (1978) 439 U.S. 14, 16 [“fundamental principles of 

procedural fairness apply with no less force at the penalty phase of a trial in 

a capital case”].)

Though these cited cases establish broad notice and sentencing rights 

in criminal prosecutions, we do not find them controlling in proceedings 

under section 1170.95. Silva cannot legitimately claim the robbery offenses

the court chose to include in its resentencing package were “uncharged”; they 

were charged in the original information. Thus, it is an overstatement to say 

he had no notice whatsoever, at any point, that he might once again be put in 

jeopardy of conviction for them. The factual basis for Silva’s lack of notice 

complaint appears to be that the amended information not only gave him no 

notice he might eventually be sentenced for five robberies and an attempted 

robbery, but it led him to believe he would not be resentenced for anything 

other than a lesser offense to murder or a charge supported by sentencing 
19

enhancement findings returned against him at trial. While we reject any 

claim that the amended information constrained the court to selecting 

redesignated offenses that were charged and actually litigated at trial—

section 1170.95, subdivision (e) on its face refutes that notion (see pt. II.F.,

post)—we think a section 1170.95 petitioner is entitled to explicit notice of 

any offense the court or prosecutor proposes to redesignate as an underlying 

felony or target offense under subdivision (e) in lieu of a murder conviction. 

Though subdivision (e) is silent on the procedure to be employed when the 

parties waive an evidentiary hearing under section 1170.95, 

subdivision (d)(2), we believe such notice reasonably in advance of the 

subdivision (e) determination is required as a matter of fundamental 

fairness. The Attorney General disagrees that due process is implicated here, 

but his only authority is Howard, supra, 50 Cal.App.5th at page 740, where 

there was no question the petitioner knew he might be resentenced to some 

form of the single burglary at issue, since that offense provided the basis of 

the special circumstance finding against him at trial (Id. at p. 732). In this 

case, by contrast, Silva was never called upon in the original prosecution to 

meet and prepare a defense to the individual robbery offenses for which he 

was resentenced.

We have found no California case describing any due process 

protections to which a petitioner may be entitled in the redesignation and 

resentencing process under subdivision (e) of section 1170.95, though it is an 

issue of widespread importance upon which trial courts sorely need guidance. 

We begin our analysis by acknowledging that a resentencing proceeding

under subdivision (e) does not require all the same due process protections of 

a criminal trial. At sentencing, “ ‘ “ ‘[d]ue process does not require a judge to 

draw sentencing information through the narrow net of courtroom evidence 
20

rules . . .[. S]entencing judges are given virtually unlimited discretion as to 

the kind of information they can consider and the source . . . whence it 

comes.’ ” ’ ” (People v. Prosser (2007) 157 Cal.App.4th 682, 692.) Still, we are 

convinced that whenever a court engages in criminal sentencing, the liberty 

of the party subject to such sentencing hangs in the balance, and he or she 

has a right to due process. (See Betterman v. Montana (2016) 578 U.S. ___ 

[136 S.Ct. 1609, 1618] [“After conviction, a defendant’s due process right to 

liberty, while diminished, is still present. He retains an interest in a 

sentencing proceeding that is fundamentally fair.”]; People v. Peterson (1973) 

9 Cal.3d 717, 726 [hearing violates due process if it is fundamentally unfair];

People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 [material factual 

inaccuracies in sentencing documents rendered sentencing fundamentally 

unfair].)

Even in the context of a court’s determination of restitution, a convicted 

defendant retains certain fundamental due process rights. “The scope of a 

criminal defendant’s due process rights at a hearing to determine the amount 

of restitution is very limited: ‘ “A defendant’s due process rights are 

protected when the probation report gives notice of the amount of restitution 

claimed . . . , and the defendant has an opportunity to challenge the figures in 

the probation report at the sentencing hearing.” ’ ” (People v. Cain (2000) 

82 Cal.App.4th 81, 86, italics added.) Thus, where a defendant was assessed 

some $8,000 in travel expenses for his victims as restitution, without notice 

that those expenses would be determined at the hearing, the proceeding was 

fundamentally unfair in that respect and violated due process. (People v. 

Marrero (2021) 60 Cal.App.5th 896, 913–914.)

By the same token, we conclude a redesignation and resentencing 

procedure that abandons the most basic tenets of notice and an opportunity 
21

to be heard would be fundamentally unfair and would violate due process, 

and we refuse to so construe section 1170.95. Under section 1170.95, the 

resentencing judge retains much discretion to impose a range of possible 

sentencing choices, and his or her discretionary choices have a direct impact 

on the petitioner’s liberty interests, depending on the choice of redesignated 

crime(s) and the structure of the sentence imposed. In this case, for instance, 

the parties have proposed resentencing Silva to somewhere between six and 

24 years in prison, and though any sentence in that range would be a 

reduction from his former sentence, the vast range available implicates the 

petitioner’s liberty interest. We conclude, as in any sentencing proceeding, 

the protections for “life, liberty, or property” embodied in the due process 

clauses of the Fifth and Fourteenth Amendments demand fundamental 

fairness in a section 1170.95 resentencing.

Moreover, the subdivision (e) proceeding is not simply a resentencing, 

but also a redesignation of one or more criminal offenses which mimics a

criminal conviction. This form of process, so far as we know unknown in 

criminal procedure before section 1170.95 created it, calls into play the same 

bedrock entitlement to notice and opportunity to be heard that we would 

recognize in advance of an actual conviction. In light of the liberty interest at 

stake, a petitioner facing resentencing under section 1170.95, subdivision (e),

should not be left in the dark as to what uncharged “target offense” or 

“underlying felony” the court may be contemplating. To make an informed 

decision under section 1170.95, subdivision (d)(2) about waiving an 

evidentiary hearing and proceeding directly to resentencing, section 1170.95 

petitioners are entitled to notice of the offenses for which they may be 

resentenced so that they may consider whether they wish to put on evidence 

relevant to the court’s factfinding.
22

Notice and an opportunity to be heard are the fundamental hallmarks 

of due process whenever “life, liberty, or property” is put in jeopardy. (U.S. 

Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7 & 15.) “Many 

controversies have raged about the cryptic and abstract words of the Due 

Process Clause but there can be no doubt that at a minimum they require 

that deprivation of life, liberty or property by adjudication be preceded by 

notice and opportunity for hearing appropriate to the nature of the case.” 

(Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 (Mullane).)

What we hold here, specifically, is that as a matter of procedural due process 

Silva was entitled to know, reasonably in advance of the court resentencing 

him, which crimes the prosecution sought to have redesignated as underlying 

felonies, the length of sentence the prosecution proposed, and how that 

recommended sentence was calculated. Unless we assume the Legislature 

intended to enact a scheme forcing the petitioner to guess what redesignated 

offense he faces, his right to avail himself of the opportunity to offer “new or 

additional evidence” at a subdivision (d)(3) hearing—should he chose to do 

so—is meaningless absent some form of notice. Notice is required so he may 

prepare to meet the arguments and evidence presented by the prosecution 

and to argue that a different crime was the underlying felony or target 

offense. If the prosecution makes no resentencing recommendation, the court 

must notify the petitioner in advance of its proposal for redesignation and 

resentencing and must give him or her an opportunity to respond.

Gonzales, supra, 65 Cal.App.5th 1167, from the Second District, 

Division Four, does not hold to the contrary. That case dealt with an 

uncharged prior offense in a context raising an ex post facto issue. (Gonzales, 

at p. 1170.) At age 16 in 1998, petitioner Gonzales had engaged in a fistfight 

with a rival gang member, which led to a shooting death and a first degree 
23

murder conviction on a natural and probable consequences theory. (Id. at 

p. 1171.) He was sentenced to a term of 25 years to life in prison, plus 25 

years to life for an arming enhancement. His conviction was later reduced to 

second degree murder (15 years to life) under People v. Chiu (2014) 

59 Cal.4th 155. (Gonzales, at p. 1171.) His conviction was vacated under 

section 1170.95 and redesignated under subdivision (e) as the uncharged 

target offense: battery (§ 242). (Gonzales, at p. 1170.) Although battery 

ordinarily is a misdemeanor offense carrying a maximum sentence of six 

months in county jail, the court sentenced Gonzales under section 186.22, 

subdivision (d), which had not yet been enacted at the time Gonzales 

committed his crime. (Gonzales, at p. 1170.)

In affirming the judgment, Gonzales noted that Senate Bill 1437 

“specifically provides that if relief is granted and the petitioner’s murder 

conviction is vacated, he or she will be resentenced on the remaining charges 

and/or, in some circumstances, on the previously uncharged target offense or 

underlying felony, so long as the new sentence is based upon the record of 

conviction and is not greater than the initial sentence. (§ 1170.95, 

subds. (d)(1), (d)(3), (e).)” (Gonzales, supra, 65 Cal.App.5th at p. 1174.) 

“Thus,” the court held, “Senate Bill 1437, in granting leniency to certain 

individuals who have been convicted of murder, gives notice that the 

individual may be resentenced on criminal offenses that were not charged but 

are supported by the record, with the limitation that the new sentence cannot 

exceed the original sentence.” (Ibid., italics added.) Although the court casts 

its holding in both ex post facto and due process terms, the notice issue 

addressed in that case arose in the context of a due process challenge made 

under the ex post facto clause. (Gonzales, at p. 1173, citing Weaver v.
24

Graham (1981) 450 U.S. 24, 30, and People v. Sandoval (2007) 41 Cal.4th 

825, 857.) There is no ex post facto issue in this case.

2. Notice was given

We require specificity with respect to notice of the intended

redesignated felonies, but we still find no due process violation in Silva’s case. 

Through the updated resentencing memorandum, Silva received notice on 

August 4, 2020, of the People’s resentencing proposal, including the 

recommendations for redesignation and the calculation of the requested

24-year sentence. The court’s redesignation decision was made on August 13, 

2020. Thus, Silva was notified nine days in advance that the prosecution 

would seek redesignation of all originally charged robbery and attempted 

robbery offenses. That was constitutionally sufficient notice in the 

circumstances.

While in some cases nine days’ notice might be considered inadequate 

to prepare for a hearing, there is no basis to believe it was inadequate in 

Silva’s case. All parties understood the judge would vacate the murder 

convictions and redesignate them as the underlying felonies. Silva’s counsel 

was able to file a written response to the proposed redesignation and 

resentencing on the very next day. Silva never requested an evidentiary 

hearing on the robberies and never requested more time to prepare for the 

redesignation and resentencing hearing, even after learning of the 

prosecution’s 24-year resentencing recommendation. He never indicated he 

intended to mount a defense to any of the robbery charges, either by putting 

on new evidence or by reference to evidence already in the record of 

conviction.

Silva’s attorney, who had also been his trial attorney, objected to the 

resentencing based on the number of counts to which he was sentenced and 

preserved various legal objections, but we see no indication in the record that 
25

Silva had a defense to any of the robbery charges but was thwarted in 

presenting it by a lack of notice. We conclude Silva received sufficient notice, 

and even assuming there was a notice violation that was preserved for 

appeal, it was harmless beyond a reasonable doubt. (Chapman v. California

(1967) 386 U.S. 18, 24.) Except on count 8, the evidence against Silva as a 

participant in the underlying robberies was overwhelming, including by his 

own admissions. There is no reason to believe greater notice of the 

redesignated robberies would have led to a different outcome.

3. Silva made no request for an evidentiary hearing on 

redesignation and resentencing and therefore was not 

deprived of an opportunity to be heard

“ ‘The fundamental requisite of due process of law is the opportunity to 

be heard.’ [Citation.] This right to be heard has little reality or worth unless 

one is informed that the matter is pending and can choose for himself 

whether to appear or default, acquiesce or contest.” (Mullane, supra,

339 U.S. at p. 314.) Thus, “notice and an opportunity to be heard” has 

become the definitional watchword for due process, and those rights are 

protected under the Fifth and Fourteenth Amendments regardless of whether 

Sixth Amendment protections apply.

Silva did not receive an evidentiary hearing on the redesignation of his 

murder convictions, nor does the statutory language suggest such a hearing 

is always anticipated, since the statute expressly contemplates that it may be 

waived (§ 1170.95, subd. (d)(2)), as occurred in this case. Whether an 

evidentiary hearing must be afforded upon request is an issue we need not 

and do not reach. Silva made no such request. Indeed, whether an in-court 

hearing of any kind is required is not spelled out in the statute. Again, we 

take no position on whether a paper review by the judge, including briefing 
26

by the petitioner, would be an adequate opportunity to be heard, for more 

was provided in this case.

We believe the type of hearing afforded to Silva gave him a meaningful

opportunity to be heard appropriate to the circumstances. Before the 

hearing, Silva’s attorney filed “defendant’s 1170.95 subdivision (e) 

memorandum.” At the hearing, his attorney argued his legal interpretation 

of the requirements of subdivision (e), his objections to the prosecution’s 

proposed 24-year sentence, and the mitigating and aggravating factors under 

the Rules of Court. He made his own proposal for a sentence of 11 years. He 

did not argue, though he could have, that the evidence was insufficient on 

count 8. Given the procedural setting, this was a timely and meaningful 

opportunity to respond to the prosecution’s updated resentencing 

memorandum, which served as a postconviction equivalent of a charging 

instrument. There was no denial of Silva’s right to be heard.

4. The record of conviction supports the court’s determination 

that Silva was guilty of five of the six originally charged 

robbery and attempt offenses

a. Burden of proof and standard of proof

Silva challenges the sufficiency of the evidence on some of the robbery 

and attempt charges, specifically counts 4, 7, and 8. As a threshold matter, 

his sufficiency of the evidence attack raises burden of proof and related 

standard of proof issues.

The burden of proof was on the prosecution to prove any redesignated 

crimes because designation of a new crime in lieu of a murder conviction is 

analogous to a criminal conviction. (See People v. Aranda (2012) 55 Cal.4th 

342, 356 [“Under the due process clauses of the Fifth and Fourteenth 

Amendments, the prosecution must prove a defendant’s guilt of a criminal 

offense beyond a reasonable doubt”]; cf. § 1170.95, subd. (d)(3); Fortman, 
27

supra, 64 Cal.App.5th at p. 223 [subd. (d)(3) hearing], review granted.) But 

we need not decide the applicable standard of proof. Howard held the 

resentencing court in that case did not err in considering “uncontroverted” 

evidence in the record and “redesignating Howard’s conviction as first degree 

burglary, because the evidence at trial demonstrated beyond any dispute the 

building was a residence.” (Howard, supra, 50 Cal.App.5th at p. 738, italics 

added.) Because the parties have not addressed the burden of proof issue, we 

follow the approach taken in Howard and hold that on any standard—

preponderance of the evidence, clear and convincing proof, or proof beyond a 

reasonable doubt—the prosecution met its burden since the proof here was in 

fact “beyond any dispute.” (Ibid.)

b. The record of conviction

The courts construing section 1170.95 have also held that, unlike

subdivision (d)(3), which allows parties to introduce “ ‘new evidence’ ” (People 

v. Myles, supra, 69 Cal.App.5th at pp. 698–703), the prosecution’s proof of the 

underlying felony or target offense under subdivision (e) must be found 

exclusively in the record of conviction. (In re I.A. (2020) 48 Cal.App.5th 767,

774–776; Gonzales, supra, 65 Cal.App.5th at p. 1174.) The record of 

conviction in Silva’s case included full trial transcripts, preliminary hearing 

transcripts, and the appellate opinions in the case, all of which may be used 

in the resentencing process. (Lewis, supra, 11 Cal.5th at p. 972 [appellate 

opinion is part of the record of conviction under subd. (c), but “the probative 

value of an appellate opinion is case-specific”]; People v. Harris (2021) 

60 Cal.App.5th 939, 959, fn. 13, review granted Apr. 28, 2021, S267802

[appellate opinion admissible and probative in subd. (d)(3) hearing]; People v. 

Clements (2021) 60 Cal.App.5th 597, 603, review granted Apr. 28, 2021,

S267624) [appellate opinion admissible in subd. (d)(3) hearing]; People v. 

Williams (2020) 57 Cal.App.5th 652, 661–663 [same]; see People v. Woodell
28

(1998) 17 Cal.4th 448, 455–457 [appellate opinion part of the record of 

conviction and admissible, subject to hearsay exclusions]; People v. Reed

(1996) 13 Cal.4th 217, 223–226 [preliminary hearing transcript part of the 

record of conviction and admissible].) Silva’s attorney also stipulated to the 

judge’s use of the statement of the facts of the crime from the presentence 

probation report attached to the district attorney’s updated resentencing 

memorandum.

In Silva’s case, the trial transcripts unquestionably contain evidence 

supporting “beyond any dispute” (Howard, supra, 50 Cal.App.5th at p. 738)

Judge Jacobson’s finding that the felony underlying both murder convictions

was a middle-of-the-night home-invasion robbery involving four other 

participants and multiple victims, including Forde. The robberies all 

occurred as part of one continuous transaction during which both killings 

transpired, so the robberies were collectively the underlying felonies for both

murders of which Silva stood convicted. Because Tabron and Taco had not 

arrived at a place of temporary safety before Garcia arrived at the Gonzalez 

house and was killed, the robberies were ongoing and were properly 

redesignated as the felonies underlying both murders. (See People v. Wilkins

(2013) 56 Cal.4th 333, 344–345, 348, fn. 4; People v. Cavitt (2004) 33 Cal.4th 

187, 203–204, 206–209.)

The same basic facts were proved at the preliminary examination, over 

which Judge Jacobson presided for nine days. Accordingly, Judge Jacobson, 

while not the trial judge, was familiar with the evidence underlying the 

convictions and was in a good position to make the necessary factual findings. 

Based upon the evidence available to him, the judge was required to

determine, and we think had ample support in the record to determine, that 
29

Silva was “concerned in the commission of” the underlying robbery and 

attempt offenses. (Pen. Code, § 31; Evid. Code, § 664.)

c. There was substantial evidence from which the court could have 

found Silva guilty of counts 4 and 7, but not count 8

Preliminarily, for purposes of resentencing, defense counsel consented 

on Silva’s behalf to the court’s reliance on the description of the underlying 

crimes in the probation report, which was attached to the district attorney’s 

updated resentencing memorandum. Silva’s challenges to the sufficiency of 

the evidence implicitly assume the judge was limited to reviewing the facts as 

stated in the probation report. The judge was not so restricted merely 

because defense counsel stipulated to the court’s use of that document. 

Contrary to Silva’s argument, the resentencing court could also rely on the 

entire record of conviction, which provided substantial evidence under 

Jackson v. Virginia (1979) 443 U.S. 307, 318–319 to support its redesignation 

on those counts, except count 8. The judge did not specify, nor was he 

required to specify, precisely which items of evidence he relied on in making 

his redesignation findings. He said he arrived at his resentencing decision 

“based on all the evidence in this case.”

The parties agree that no sentence should have been imposed on 

count 8. Jose Hernandez, the named victim in count 8, was a neighbor who 

called 911 when he heard the gunshots. There was no evidence he was a 

robbery victim. We shall strike the redesignated offense and the sentence on 

count 8.

Substantial evidence supported the redesignated convictions for the 

robbery of Mendoza (count 4) and the attempted robbery of Junior (count 7). 

(Jackson v. Virginia, supra, 443 U.S. at pp. 318–319.) The evidence at trial 

showed that Taco pointed a gun at Mendoza and Junior, who were playing 

dice in the basement, and ordered them upstairs. Mendoza testified the 
30

perpetrators committed a home-invasion robbery. The robbers took his 

Mongoose mountain bike. After Tabron corralled all the victims, including 

Mendoza and Junior, in the back bedroom, he asked everyone for their money 

and phones. Mendoza, like the others, turned over his wallet. These facts, 

without more, constitute substantial evidence for the redesignation of Forde’s 

or Garcia’s murders as, among other things, a conviction for robbing 

Mendoza. (People v. Zamudio (2008) 43 Cal.4th 327, 356–357.)

Junior, too, was moved upstairs at gunpoint. Tabron specifically 

demanded Junior’s money and cell phone. And while there was no testimony 

about what Junior might have turned over, the charge and verdict were for 

attempted robbery. The evidence easily supported that charge as one of the 

underlying felonies. (People v. Zamudio, supra, 43 Cal.4th at pp. 356–357.)

d. The court did not fail to redesignate underlying felonies for 

Garcia’s murder

The court did not err in redesignating the murders of Forde and Garcia 

as a series of home-invasion robberies in concert. The Attorney General 

suggests the judge considered all six robbery offenses as substitutes for the 

Forde murder conviction (count 2) and did not redesignate the murder of 

Garcia (count 1) at all because he was “not a robbery victim.” He argues the 

felony underlying the killing of Garcia was also a home-invasion robbery in 

concert and should have been so redesignated and resentenced. The 

sentencing colloquy is not without ambiguity, but as we understand the 

record, the judge redesignated the two murders as five home-invasion 

robbery offenses and one attempt without specifying which offenses 

substituted for which murder. We will therefore not address the Attorney 

General’s argument that Garcia’s murder should have been redesignated and 

resentenced as a home-invasion robbery in concert; we believe it was.
31

F. Sentencing Silva for More Than Two Underlying Robberies

We turn now to the heart of Silva’s appeal, namely that the court 

illegally resentenced him to prison on more counts of robbery than the 

number of murder convictions he had sustained, given that he had never 

been convicted by the jury of any robbery counts. We have already addressed 

his claim to a constitutional right to a jury determination. (See pt. II.D.,

ante.) As a matter of statutory construction, we reject Silva’s claim that a 

redesignation cannot be made of past alleged crimes that remain 

unadjudicated. In cases in which the underlying felony or target offense was 

never charged, the resentencing judge necessarily must identify the 

appropriate redesignated offense and make factual findings on the 

petitioner’s guilt. (§ 1170.95, subd. (e).) If a judge may redesignate a murder 

as a crime that was never charged, as is implicit in subdivision (e), we see no 

reason why he or she cannot redesignate a murder as a charge once made but 

dropped in circumstances where the dismissal was not for lack of evidence, 

but in reliance on the felony-murder rule then in effect.

The Legislature’s provision that the statute of limitations “shall not be 

a bar” to the redesignation decision (§ 1170.95, subd. (e)) implicitly empowers 

the court to reach back to long-past conduct, including counts in the original 

charging documents, for purposes of redesignation. That the prosecutor 

dropped the robbery charges from the amended information does not at this 

stage in the proceedings protect Silva from adjudication of the allegations as 

the underlying felonies of the two murders. In cases such as Silva’s, in which 

additional counts of the underlying felony have once been charged but no 

verdict has been rendered, the judge must make factual findings of guilt just 

as if the underlying felony had never been charged.
32

1. People v. Watson (2021) 64 Cal.App.5th 474

The decision in People v. Watson (2021) 64 Cal.App.5th 474 (Watson)

significantly undercuts Silva’s argument by allowing the court to redesignate 

more than one underlying felony in lieu of a murder conviction. There, the 

defendant was sentenced to 15 years to life in prison after pleading guilty to 

one count of second degree murder in 1988. The victim had admitted the 

defendant into his hotel room, unaware that he and two accomplices had a

preexisting “specific intent to grab him and steal his money from him.” 

(Watson, at p. 486.) Watson grabbed the victim from behind so his two 

accomplices could enter the room. In the ensuing struggle, the victim fought 

back, and one of Watson’s accomplices suddenly started wildly stabbing the 

victim, who died. (Id. at p. 479.)

Watson, still in prison in 2019, petitioned for resentencing, and his 

murder conviction was vacated. (Watson, supra, 64 Cal.App.5th at p. 477.) 

The resentencing court concluded Watson had committed both first degree 

burglary and first degree residential robbery as felonies underlying his 

second degree murder conviction. (Id. at p. 480.) It sentenced Watson on 

both underlying felonies, staying execution of the robbery sentence under 

section 654 and, with 32 years’ credit for time served (§ 1170.95, subd. (g)),

ordered him immediately released from prison.

9

(Watson, at pp. 477, 481.)

In affirming that resentencing decision, Division Three of this court 

held the Legislature’s use of the definite article in “the . . . underlying felony” 

in subdivision (e) and its use of the singular noun did not mean a single 

felony must be redesignated in lieu of each murder conviction that has been 

9 The Watson case started out as a People’s appeal, and Watson filed a 

cross-appeal. (Watson, supra, 64 Cal.App.5th at p. 481.) When the People 

later abandoned their appeal, the court decided just the remaining crossappeal by Watson. (Ibid.)
33

vacated under section 1170.95. (§ 1170.95, subd. (e); Watson, supra, 

64 Cal.App.5th at p. 485.) The phrase “ ‘underlying felony’ is susceptible of 

either singular or plural meaning depending on context. Viewed in this way, 

the Legislature’s use of the singular form was not necessarily intended to 

restrict courts to designating only one underlying felony under 

section 1170.95, subdivision (e).” (Watson, supra, at p. 485; see Pen. Code, 

§ 7; Evid. Code, § 10.)

2. Silva could legally be resentenced for five home-invasion 

robberies in concert and one attempted robbery in lieu of 

two murder convictions

Applying Watson’s reasoning to the issue before us, there appears to be

no statutory impediment to the imposition of sentence on more counts on 

resentencing under subdivision (e) than the number of murder convictions 

originally sustained. But even under Watson’s holding, we find a distinction

worth noting.

In Watson, the resentencing court found the defendant guilty of two 

redesignated felonies, but the sentence on one count was stayed, and in any 

event, both felonies were committed against the same victim who was 

murdered. (Watson, supra, 64 Cal.App.5th at pp. 478, 481.) Here, we are 

asked whether the resentencing court could properly find Silva guilty of six 

counts of robbery or attempted robbery, all except one victimizing individuals

other than the murder victims, and could sentence him consecutively on 

those counts in lieu of only two counts of murder of Forde and Garcia.

Silva contends this was a violation of due process, the right to jury 

trial, confrontation, and the right to counsel.10 (U.S. Const., 5th, 6th & 14th

10 As we have already explained, the Sixth Amendment did not apply to 

Silva’s resentencing. (See pt. II.D., ante.) Moreover, Silva was represented 

by appointed counsel throughout the section 1170.95 proceedings beginning 
34

Amends.) The Attorney General contends the resentencing judge had 

discretion under subdivision (e) to redesignate more offenses than one in lieu 

of each of Silva’s murder convictions in order to more closely approximate the 

gravity of his conduct. In our view, the Attorney General’s position more 

faithfully reflects the legislative intent. We conclude the federal and state 

Constitutions pose no bar to the redesignation of additional counts, so long as 

the petitioner receives notice, an opportunity to be heard, and the prosecution 

bears its burden of proving guilt on the redesignated counts.

Subdivision (e) of section 1170.95 appears to invest the superior court 

with considerable discretion in redesignating the petitioner’s murder 

convictions as underlying felonies and resentencing a petitioner to an 

appropriate term of years based on his or her individual culpability. We 

believe the court may consider the full extent of the petitioner’s criminal 

conduct, and the redesignation may reflect, among other things, the number 

of crime victims, not just the number of murder charges on which the 

petitioner was convicted. (See Howard, supra, 50 Cal.App.5th at p. 742 [“the 

purpose of section 1170.95 is to punish a defendant commensurate with his 

individual culpability”].) The focus is on achieving a just sentence—not 

making sure the redesignated offenses line up numerically with the vacated 

murder convictions. (See § 1170.95, subd. (e) [court redesignates murder 

conviction “for resentencing purposes”].) “When a court resentences a 

defendant pursuant to section 1170.95, the only limitation is the new 

sentence cannot be greater than the original sentence. (§ 1170.95, 

subd. (d)(1).)” (Howard, at p. 742.)

just days after he filed his petition. (§ 1170.95, subd. (c).) (See Lewis, supra, 

11 Cal.5th at p. 957].)
35

Except for the redesignation of count 8, the judge did not violate 

section 1170.95 or the federal or state Constitutions in resentencing Silva, 

nor did he abuse his discretion in selecting a term of 16 years. We shall 

strike count 8 for lack of supporting evidence, but because count 8 was 

sentenced concurrently, striking it does not alter the length of Silva’s 

aggregate sentence.

3. There is no need to remand for resentencing

Both parties request a remand for resentencing. Although a remand 

could possibly lead to clarification of the court’s reasoning in some respects, it 

is highly unlikely to result in a shorter sentence, as we did not find any error 

by the court that contributed to the length of the sentence. Moreover, the 

record demonstrates that Judge Jacobson would not impose a longer 

sentence, even if it were available. He believed he had the option of imposing 

a longer sentence by sentencing count 8 consecutively, but he deliberately 

rejected that alternative and sentenced count 8 concurrently. “I’m finding 

that 16 years appears to me, based on all the evidence in this case, to be 

appropriate based on Mr. Silva’s history, his behavior in this case, and the 

damage and harm that was done in this case.” For this reason, even if a 

longer sentence could be calculated on remand, we think it clear the court 

would not impose a longer sentence. Remanding the case for resentencing 

would be an idle act and a waste of judicial resources.
36

III. DISPOSITION

The redesignated offense and sentence on count 8 are ordered stricken 

for lack of evidence. The judgment is otherwise affirmed. The superior court 

shall prepare an amended abstract of judgment omitting count 8 and shall 

forward it to the Department of Corrections and Rehabilitation.

STREETER, J.

WE CONCUR:

POLLAK, P. J.

ROSS, J.*

* Judge of the Superior Court of California, City and County of San 

Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.
1

STREETER, J., Concurring.

Although we conclude that the burden of proof question is unnecessary 

to our disposition, the question of what burden must be met when a 

resentencing court selects one or more uncharged “target offense[s]” or 

“underlying felon[ies]” under Penal Code section 1170.95, subdivision (e)—

preponderance of the evidence, clear and convincing proof, or proof beyond a 

reasonable doubt—is not only closely related to the issues of notice and 

opportunity to be heard that we decide here, but is a pressing matter in its 

own right. I would have preferred to see us go further and decide it along 

with these other issues of fundamental fairness. To me, we must bear in 

mind the applicable burden of proof when we evaluate the sufficiency of the 

evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1000–1007.)

“ ‘[T]he degree of proof required in a particular type of proceeding “is 

the kind of question which has traditionally been left to the judiciary to 

resolve.” [Citation.] [Fn. omitted.] “In cases involving individual rights, 

whether criminal or civil, ‘[t]he standard of proof [at a minimum] reflects the 

value society places on individual liberty.’ ” [Citations.]’ ‘The standard of 

proof must satisfy “ ‘the constitutional minimum of “fundamental 

fairness.” ’ ” ’ [Citations.] ‘The function of a standard of proof is to instruct 

the fact finder concerning the degree of confidence our society deems 

necessary in the correctness of factual conclusions for a particular type of 

adjudication, to allocate the risk of error between the litigants, and to 

indicate the relative importance attached to the ultimate decision.’

[Citation.])” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1344–1345

(conc. opn. of Raye, P. J.).)

Had we reached the issue, I would have concluded that the prosecution 

bears the burden of proving any redesignated offense under Penal Code 
2

section 1170.95, subdivision (e), beyond a reasonable doubt. (Cf. People v.

Frierson (2017) 4 Cal.5th 225 [prosecution bears burden of proving Prop. 36 

petitioner’s ineligibility for resentencing under Three Strikes Reform Act of 

2012 beyond a reasonable doubt].) I think that is not only constitutionally 

compelled as a matter of due process (In re Winship (1970) 397 U.S. 358, 

362), but also as a matter of statutory interpretation. When the entirety of 

the statutory scheme is read as a whole, I see no reason why the Legislature 

would have intended to place a beyond a reasonable doubt burden on the 

prosecution at a section 1170.95, subdivision (d)(3) hearing, but some lesser 

burden at a section 1170.95, subdivision (e) hearing where the parties choose 

to proceed solely on the record of conviction. Accordingly, whether viewed as 

a matter of statutory interpretation as in Frierson, or as a matter of due 

process as in Winship, I think the burden of proof here is beyond a reasonable 

doubt.

STREETER, J.
A160827 People v. Silva

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Morris Jacobson

Counsel: Law Offices of Joseph C. Shipp and Joseph C. Shipp, by 

appointment of the Court of Appeal under the First District 

Appellate Project, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, 

Lance E. Winters, Chief Assistant Attorney General,

Jeffrey M. Laurence, Senior Assistant Attorney General, 

René A. Chacón and David M. Baskind, Deputy Attorneys 

General, for Plaintiff and Respondent.