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SB 1437: Notice Regarding Resentencing, Redesignation
The Gist of this Article: When resentencing a defendant under Senate Bill 1437 (codified at Penal Code § 1172.6 (originally at § 1170.95)), defendant must have notice of the charges he faces resentencing on, which can be satisfied if defendant faced such charges in the original complaint, although later amended, in the underlying case.
In 2014, Joseph Silva, Joseph Tabron and Joseph Castro were each convicted in Alameda County in 2014 of two counts of first degree murder arising over a home-invasion robbery to settle a drug debt.
The murders took place in an Oakland house at about 3:00 a.m. Joseph Tabron, a drug dealer who lived around the corner from the Oakland house, masterminded the robbery. The two murder victims, Trisha Forde and Noe Garcia, did not live in the house. Forde entered the house while the robbery was taking place and was promptly led outside the house just as Garcia was arriving at the house as well.
Silva did not participate in the robbery from the start. He testified at trial that he had bought an “eight ball” of meth from Tabron earlier and went over to Tabron’s house to pay him. However, Tabron was not there. Tabron’s brother, however, was there and asked Silva to help him load up some TV’s into a truck from a house around the corner, which was where the robbery was taking place.
Silva, not knowing any better, went over the robbery location and as he testified, “red flags went up” and he knew “something was goin’ down.” In a police interview, he said he went into the house and saw six people laying face down in a bedroom with a man standing over them, holding a gun. He then helped Tabron’s brother load up a TV. It was unclear from his testimony and his interview with police whether he was there when Forde and Garcia were shot.
The jury found all three defendants guilty of both murders. It did not find that Castro or Silva was armed with a firearm, but it did find that Tabron was. The judge then sentenced each defendant to 50 years to life in prison.
In October 2019, after Senate Bill 1437 was passed, Silva filed a petition for resentencing as a non-killer under Penal Code § 1170.95. The judge vacated the two murder convictions and resentenced him to a prison term of sixteen years, computed as follows: a nine-year principal upper term on count 3 for in-concert home-invasion robbery of Forde; then consecutive two-year terms for first-degree home-invasion robbery on counts 4, 5 and 6; a consecutive one-year term for attempted home-invasion robbery of another home resident in count 7 and a concurrent six-year term on count 8 for first-degree-home invasion robbery on one last home resident.
Court of Appeal First Appellate District San FranciscoSilva appealed the sentence, contending that his new sentence was unauthorized under Penal Code § 1170.95(e) because it involved terms on charges the jury were not asked to consider, let alone find him guilty of committing. This violated his fundamental due process rights to notice under the Fifth and Fourteenth Amendments. He should have been afforded notice and an opportunity to be heard on such charges, which he did not know he faced sentencing on.
The First Appellate District agreed in part and disagreed in part. The appellate court agreed in general that petitioners resentenced under SB 1437 should be aware of the offenses for which they may be resentenced because their liberty interests are at stake and it would allow them to make informed decisions. Therefore, as a matter of procedural due process, Silva was entitled to know, reasonably in advance, which crimes the prosecution sought to have redesignated as underlying felonies, the length of the sentence the prosecution proposed and how that recommended sentence was calculated.
However, in Silva’s case, the prosecution pointed out on appeal and the appellate court found true that after a resentencing hearing was set, the prosecution did provide its sentencing memorandum and Silva’s attorney even filed a response to it, so Silva really could not claim he was unaware or had no notice of the charges that he might be sentenced on.
Moreover, it was an overstatement by Silva to say he had not notice that he might be sentenced on such charges because the original complaint and the information alleged first degree home-invasion robbery as to each home resident. The prosecution filed an amended information just before trial, narrowing the charges to just first degree murder premised on the first degree home-invasion robbery, but Silva had defended against such charges all along up to that point.
Nonetheless, the appellate court struck the six-year consecutive term on count eight, but this did not reduce Silva’s sentence because the term was consecutive.
The citation for the First Appellate District Court ruling discussed above is People v. Joseph Silva (1st App. Dist., 2021) 72 Cal. App. 5th 505, 287 Cal. Rptr. 3d 376.
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