50 Cal.App.5th 727
Cal. Ct. App.2020Background
- In 2010 an 80‑year‑old woman (June Pavon) was shot and killed during a home burglary; Patterson was the shooter, Harris and Howard were accomplices (Howard denied being inside the house).
- In 2015 Howard was convicted of first‑degree murder with a felony‑murder special circumstance and an arming finding; sentenced to life without parole.
- This court (Howard I) reversed the felony‑murder special circumstance for insufficient evidence of reckless indifference and modified the sentence.
- After §1170.95 (petition‑and‑resentencing relief for certain felony‑murder defendants) was enacted, Howard petitioned; the trial court vacated the murder conviction and—relying on the trial record—redesignated the underlying felony as first‑degree (residential) burglary, imposed the aggravated 6‑year term, a violent‑felony designation, and a 1‑year arming enhancement.
- Howard appealed, arguing §1170.95(e), Penal Code §1157, and federal constitutional principles barred the court from redesignating or imposing improvements not charged or found by a jury; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (AG) | Defendant's Argument (Howard) | Held |
|---|---|---|---|
| Whether the court may redesignate the vacated murder conviction as first‑degree (residential) burglary under §1170.95(e) when that degree was not charged or submitted to the jury | §1170.95(e) permits the court to redesignate the underlying felony; trial evidence undisputedly established the building was a residence so first‑degree burglary is the correct underlying felony | The court cannot substitute or impose a greater (or different) crime degree that was not charged, instructed, or decided by a jury | Affirmed: court may redesignate as first‑degree burglary because the trial evidence conclusively showed a residential burglary and §1170.95(e) does not restrict the court to the degree the prosecution charged |
| Whether Penal Code §1157 required the court to fix degree at second degree because jury did not find degree | AG: §1157 doesn’t apply because Howard was not convicted of a degree‑graded burglary at trial; redesignation is not an increase of punishment | Howard: §1157 mandates the lesser degree where degree was not determined by jury | Rejected: §1157 protects against post‑conviction degree increases where a defendant was convicted of a degree‑graded crime; here murder vacated and redesignation is not an increase but a resentencing under ameliorative statute |
| Whether redesignation to residential burglary violated federal jury‑trial (Apprendi/Alleyne) or due process rights | AG: §1170.95 relief is an act of legislative lenity and redesignation does not increase the sentence or implicate Sixth Amendment rights | Howard: redesignation and factual findings increasing punishment elements should be submitted to a jury beyond a reasonable doubt | Rejected: redesignation under §1170.95 does not implicate Sixth Amendment (it is lenitive and did not increase sentence); no Apprendi violation; due process claim fails |
| Whether the court could impose a violent‑felony designation (§667.5(c)(21)) and the arming enhancement (§12022(a)(1)) at resentencing when those were not charged/found as to burglary | AG: enhancements and designations can be imposed if supported by the record and proved at the §1170.95 hearing; trial record established a person present and that Patterson was armed | Howard: enhancements attached to the vacated murder conviction should also be vacated and cannot be reapplied absent charging/proof for burglary | Affirmed: enhancements attached to the vacated murder conviction were vacated, but the court could impose enhancements relative to the redesignated burglary if supported by evidence (the trial record here supported person‑present and arming findings); new sentence did not exceed original sentence |
Key Cases Cited
- People v. Clark, 63 Cal.4th 522 (describing the statutory definition of first‑degree felony murder)
- People v. Mendoza, 23 Cal.4th 896 (statutory construction principles; purpose of §1157 and avoiding absurd results)
- People v. Perez, 4 Cal.5th 1055 (retroactive application of ameliorative statutes as legislative lenity)
- People v. Anthony, 32 Cal.App.5th 1102 (characterizing §1170.95 relief as an act of lenity)
- People v. Martinez, 31 Cal.App.5th 719 (purpose and scope of §1170.95)
- People v. Flores, 44 Cal.App.5th 985 (refusing to expand §1170.95 beyond its text)
- People v. Blackburn, 61 Cal.4th 1113 (standard of review on statutory interpretation in sentencing context)