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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PATRICK JOHN SILVA,

Defendant and Appellant.

F084982

(Super. Ct. No. F16901495)

OPINION

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.
2.

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), 
3.

committed assault by means likely to produce great bodily injury (§ 245, subd. (a)(4);

count 9), and exhibited a deadly weapon (§ 417, subd. (a)(1); count 10). Additionally, it 

was alleged defendant had three prison priors (§ 667.5, former subd. (b)) and was 

previously convicted of a serious felony (§ 667, subd. (a)(1)) that qualified as a strike 

offense under section 667, subdivisions (b)–(i) and 1170.12, subdivisions (a)–(d).

Defendant pled guilty to two counts of second degree robbery (§ 211; counts 1 &

7) and admitted the section 12022, subdivision (b)(1) enhancement allegations as to those 

counts. He also admitted he suffered a prior strike conviction that also qualified as a 

serious felony under section 667, subdivision (a)(1). Defendant entered his plea with the 

understanding he would be sentenced to no more than 14 years and his sentence on the 

section 12022, subdivision (b)(1) enhancement as to count 7 would be stayed.

The court sentenced defendant to a total aggregate term of 14 years: the midterm 

of three years on count 1 (§ 211), doubled to six years, plus an additional term of five 

years for the section 667, subdivision (a) enhancement and an additional year for the 

section 12022, subdivision (b)(1) enhancement, and a consecutive term of one-third the 

midterm of three years (one year), doubled to two years on count 7. The court imposed a 

one-year term for the section 12022, subdivision (b)(1) enhancement as to count 7 but

stayed it. The remaining counts were dismissed.

In a letter dated May 11, 2022 (filed with the superior court Aug. 31, 2022), the 

Office of the Secretary of the CDCR provided the superior court with the authority to 

resentence defendant pursuant to former section 1170.03, subdivision (a)(1), now section 

1172.1, based upon a change in the sentencing law. Specifically, the letter stated, 

effective January 1, 2019, the court gained discretion, which it previously lacked, to 

strike the section 667, subdivision (a)(1) enhancement or the related punishment pursuant 

to section 1385. The letter explained defendant’s “case factors have been compiled and 

thoroughly reviewed by the Director of Adult Institutions,” and the Secretary of CDCR 
4.

recommended defendant’s sentence “be recalled and that he be resentenced in accordance 

with PC Section 1170.03, Subdivision (a)(1).”

A September 6, 2022, minute order states the court read and considered the 

request from the CDCR and concluded any request for recall and resentencing under 

former section 1170.03, subdivision (a)(1) (now section 1172.1) was denied. The court 

also sent the Secretary of the CDCR a letter dated September 6, 2022, in which it stated it 

denied the request. In the letter, the court stated it believed that “‘in the interest of 

justice’ the sentence of Judge Peterson (now retired) should not be modified or changed.” 

The court noted it had reviewed the probation report, change of plea form, transcript of 

the actual sentencing hearing, and transcript of the change of plea in rendering its 

decision. It detailed the sentence imposed and again stated, “That sentence should not 

change, recognizing the 5 year prior and the ‘strike’ are the same prior conviction. This 

court recognizes it has discretion to dismiss the 5 year prior enhancement, but elects not

to do so.” It noted, “defendant robbed or attempted to rob multiple victims at four 

different massage parlors on four different dates, threatening multiple victims with a 

knife and injuring more than one victim.” The court concluded: “Fourteen years as a 

total sentence is fair and this court deems it appropriate. The maximum for what the 

defendant pled to, not counting the numerous dismissed felonies, was 19 years. [¶] A 

hearing is unnecessary and will not be granted.”

DISCUSSION

I. Recall and Resentencing Proceedings Under Section 1172.1

Section 1172.1 (former § 1170.03) provides a procedure by which a court may “at 

any time upon the recommendation of the secretary or the Board of Parole Hearings in 

the case of a defendant incarcerated in state prison, ... recall the sentence and 

commitment previously ordered and resentence the defendant in the same manner as if 

they had not previously been sentenced, whether or not the defendant is still in custody, 
5.

and provided the new sentence, if any, is no greater than the initial sentence.” (§ 1172.1, 

subd. (a).) “The CDCR recommendation furnishes the court with jurisdiction it would 

not otherwise have to recall and resentence and is ‘an invitation to the court to exercise its 

equitable jurisdiction.’” (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040.)

Assembly Bill No. 1540 (2021–2022 Reg. Sess.) moved the recall and 

resentencing provisions of former section 1170, subdivision (d)(1) to section 1170.03, 

effective January 1, 2022. (Stats. 2021, ch. 719, §§ 1–7.) It also clarified many of the 

required procedures under this section. (See People v. McMurray, supra, 76 Cal.App.5th 

at p. 1041 [“[T]he Legislature repeatedly indicated that Assembly Bill 1540 was intended 

to ‘make clarifying changes’ to former section 1170(d)(1), including specifying the 

required procedure and guidelines when the CDCR recommends recall and 

resentencing”].) These changes took effect before CDCR’s letter was sent in this case, 

and the trial court considered the recommendation. Assembly Bill No. 200 (2021–2022 

Reg. Sess.) renumbered section 1170.03 to section 1172.1, effective June 30, 2022, but 

made no substantive changes. (Stats. 2022, ch. 58, § 9.)

As a result of these changes, section 1172.1 provides “[w]here, as here, the CDCR 

recommends recall and resentencing, the court is also now required to hold a hearing

(unless the parties otherwise stipulate), state on the record its reasons for its decision, 

provide notice to the defendant, and appoint counsel for the defendant.” (People v. 

McMurray, supra, 76 Cal.App.5th at p. 1040; accord, § 1172.1, subds. (a)(6)–(8), (b)(1).) 

The statute further provides that resentencing may be granted without a hearing upon 

stipulation by the parties. (§ 1172.1, subd. (a)(7).) Section 1172.1, subdivision (a)(8) 

expressly states: “Resentencing shall not be denied, nor a stipulation rejected, without a 

hearing where the parties have an opportunity to address the basis for the intended denial 

or rejection.” Additionally, when recalling and resentencing pursuant to its provisions, 

the court “shall ... apply any changes in law that reduce sentences or provide for judicial 

discretion.” (§ 1172.1, subd. (a)(2); see People v. McMurray, supra, at p. 1040; People v. 
6.

Pierce (2023) 88 Cal.App.5th 1074, 1078.) And, where a resentencing request is made, 

there is now a presumption in favor of recall and resentencing of the defendant, “‘which 

may only be overcome if a court finds the defendant is an unreasonable risk of danger to 

public safety,’” as defined in subdivision (c) of section 1170.18. (People v. McMurray, 

at p. 1040; accord, § 1172.1, subd. (b)(2).)

II. Analysis

Defendant argues, and the People agree, the trial court did not follow the 

procedural requirements set forth in section 1172.1, in part, by failing to appoint 

defendant counsel and failing to hold a hearing at which the parties had an opportunity to 

be heard. Defendant also contends the court’s failure to appoint him counsel and hold a 

hearing violated his federal constitutional rights to due process and to the assistance of 

counsel. He argues the matter must be remanded for the trial court to comply with

section 1172.1’s procedures.

We agree with the parties the court erred in failing to provide defendant with 

notice and set a status conference, to appoint him counsel, and to hold a hearing at which 

the parties would have had the opportunity to address the basis for the intended denial or 

rejection. (See § 1172.1, subds. (a)(6)–(8), (b).) Accordingly, its order must be reversed 

and the matter remanded for the court to comply with the procedural requirements of 

section 1172.1. (See People v. Pierce, supra, 88 Cal.App.5th at p. 1079 [“‘Under the 

circumstances, the appropriate remedy is to reverse and remand the matter, so that the 

trial court can consider the CDCR’s recommendation to recall and resentence defendant 

under the ... procedure and guidelines of section 117[2.1]’”]; accord, People v. 

McMurray, supra, 76 Cal.App.5th at p. 1041 [same].) Because we are reversing the 

court’s order and remanding on other grounds, we need not reach defendant’s 

constitutional arguments.
7.

DISPOSITION

The court’s order declining to recall and resentence defendant is reversed and the 

matter is remanded with directions to comply with the procedural requirements of section 

1172.1.