THE PEOPLE, Plaintiff and Respondent, v. DARLENE RENEE FOUSE, Defendant and Appellant.
F085131
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 1/18/24
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 1063488)
OPINION
APPEAL from an order of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.
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INTRODUCTION
Defendant Darlene Renee Fouse appeals from the order following the grant of her
Because the jury convicted defendant of the target offenses of robbery, she argues the trial court erred in redesignating the attempted murders as assaults with a firearm on a peace officer (lesser included offenses) and in adding a conviction for evading a peace officer. Instead, she contends the resentencing procedure provided in
In reviewing the plain language of
Following a series of violent home invasion robberies, a jury convicted defendant in 2006 of three counts of first degree residential robbery in concert (
Our court affirmed defendant’s convictions but modified her sentence in the unpublished opinion, People v. Fouse (Mar. 13, 2009, F050427) [2009 Cal.App.Unpub. LEXIS 2102; 2009 WL 638777], which also details the facts underlying defendant’s convictions. The opinion includes a synopsis of the counts with which defendant was not charged, but with which her codefendants Anthony Lawrence Martinez, David Wayne Morrison, and David Anthony Silva were charged and convicted, in order to give context to some of the issues defendant raised. As to the charges against defendant, it provided in relevant part:
“Counts 32-35-September 10, 2003
“In September 2003, [H.G. Sr.] resided ... with his wife ..., 14-year-old daughter ..., and 23-year-old son [H.G. Jr.]. [H.G. Sr.], a farm manager, had an office at his residence, as well as one at his work site. An alarm system that was connected to a security company and the sheriff’s department had been installed at the house on September 9.
“At approximately 2:20 a.m. on September 10, [H.G. Sr.] got up to see his wife off to work and to check on some water he had running in his orchard. Everything seemed fine. Around 3:30 a.m., he was asleep when the alarm went off. Thinking there was a problem with the installation, he was hurrying to turn off the alarm, the control panel for which was by the front door, when three intruders entered the house by breaking open the dead-bolted front door. One held a shotgun to [H.G. Sr.]’s head and said that if he did not quickly turn off the alarm, the intruder would ‘blow [his] brains out.’ The intruder repeated this and banged [H.G. Sr.]’s head with the butt of the shotgun multiple times. [H.G. Sr.] was able to tell the intruders were wearing masks. He heard three male voices.
“[H.G. Sr.] managed to turn off the alarm. The intruders took him into the living room, where he was placed face down on the floor, his hands and ankles were restrained with black plastic ties, and his head was covered. As one of the intruders ran down the hallway toward the children’s rooms, another put his foot to [H.G. Sr.]’s neck, applied pressure, and asked him where the money was. The shoe felt heavy. The intruder told [H.G. Sr.] that his son was covered in blood, and that if he loved his son, he would tell the intruder where the money was. [H.G. Sr.] told him that there was money in his wallet in the laundry room. The intruder then asked where the ‘clavo’ was. In the Spanish culture, ‘clavo’ is a slang term that means ‘stash.’ [H.G. Sr.] understood it to mean money or jewelry, and he told the intruder that he did not know what he was talking about. The intruder then got angry and kicked [H.G. Sr.] in the side of the face. “Meanwhile, [H.G. Jr.] was awakened when his locked bedroom door was kicked in. What appeared to be a shotgun and a flashlight were pointed at him. He could hear the alarm in the background. It went off after 15 to 25 seconds. [H.G. Jr.] was told to lie face down on his stomach, and his wrists and ankles were restrained with black zip ties and a blanket was thrown over him. [H.G. Jr.] could hear three male voices. The intruders spoke in English, except that [H.G. Jr.], who understood Spanish, heard the term ‘ese’ four or five times when one intruder addressed another. The two intruders in his room used the term and seemed to have Hispanic accents.
“[H.G. Jr.] heard one of the intruders tell his sister to get up and then to get on the ground. He then heard what sounded like someone being struck. Although he did not hear his sister make any sound, he yelled out not to hurt her, that she was only 14. The intruders repeatedly asked [H.G. Jr.] where the money was; when he insisted there was no cash in the house, he was kicked a few times in the back of his head with something that felt sturdy, like a boot. At some point, [H.G. Jr.] could hear his father insisting that there was no money. When the intruders were asking [H.G. Jr.] where the money was, they said that if he was lying, his father was going to get hurt worse, and that [H.G. Jr.] should look at him, that he was bleeding all over. [H.G. Jr.] knew they were lying, because he could hear his father and had not heard him being struck or asking not to be hit.
“Eventually, one of the intruders asked [H.G. Sr.] how to turn off the front lights. [H.G. Sr.] told him the location of the switch, then heard a car nearby that sounded like its muffler was torn up. The car was leaving. The house was quiet then. [H.G. Jr.], who had been left alone in his room after it was searched and items were taken, managed to free himself and then his father and sister. They discovered the telephones were missing from the wall and their cell phones were in the toilet, so [H.G. Jr.] activated the panic button on the alarm to summon help.
“The incident lasted 40 to 50 minutes, during which the house was ransacked. The intruders took a number of items, including jewelry, money, and a video camera. Authorities recovered some of the items following the arrests in this case. [H.G. Sr.] suffered cuts and bruises to his head and face from being kicked and struck with the gun butt. He also had bloody marks on his ankles from having his feet tightly bound. [The daughter] sustained a facial abrasion and marks on her wrists and ankles. [H.G. Jr.] had marks on his wrists and ankles that were visible for about a month. None of the family sought medical attention. “Shoe prints were found between the residence and the road. Boots subsequently seized from Silva could not be excluded as the source of some of the impressions. Boots subsequently seized from Martinez could not be excluded as the source of other of the impressions. There were tire tracks in the orchard near the house that appeared to go from the road, into the orchard, and then out onto the road again. The shoe prints led toward the area where the tire prints were found.
“Counts 36-37-September 10, 2003
“Early on the morning of September 10, 2003, Stanislaus County Sheriff’s Detective Nuno was assigned to be part of the arrest team, if residential robbery suspects, who were under surveillance, committed a robbery. Sergeant Allen, who was the team supervisor, was with Nuno in one vehicle, while the rest of the SWAT team and a couple of other detectives were in other vehicles. Nuno and Allen were in an unmarked car that was equipped with lights and a siren. Nuno was driving.
“At approximately 4:30 a.m., Nuno and Allen were at the staging area ..., when they received information that the individuals were believed to have committed a residential robbery in the area. The surveillance team reported the suspects’ location; Nuno had previously been informed that the suspect vehicle was brownish or golden and had the words ‘Cold Pimp’n’ on the back.
“Nuno and Allen, who were in the lead vehicle, and the rest of the arrest team moved to intercept the suspects. Once the team was in position, Nuno activated his lights and siren. The suspect vehicle slowed down as if it was going to stop, but then accelerated. A pursuit ensued that covered seven to 10 miles and lasted approximately 10 minutes.
“Nuno followed the vehicle from a rural area into a residential neighborhood in Turlock. There, the car slowed down and began making turns. The rear doors opened a couple of times, then, near the intersection of
Angelus and Spruce, the vehicle slowed almost to a stop. Nuno slowed down as well, and pulled toward the driver’s side passenger area of the vehicle. The right rear door opened completely, and Martinez got out. He was wearing black clothing, a black beanie-type hat, black boots, and a bandolier, and had a shotgun in his hand. As he turned toward Nuno and Allen, the shotgun also turned in their direction. Allen opened his door, stepped half out of the car, which was still moving, and fired several shots at him. Because Allen was behind the door of the car and the window was not rolled down, he fired through the window, which shattered. The shots also damaged the vehicle’s outside mirror. The Cold Pimp’n vehicle was about 10 to 15 feet in front and to the right of his and Nuno’s position at that point. As Martinez ran toward a residence on the south side of Angelus, Allen reacquired the target, stood up, and fired again. He was standing behind the door of his and Nuno’s car, which was now slightly rolling away from him. “Immediately after Allen fired the second time, he and Nuno heard loud booms, which Allen believed to be gunfire. They were coming from the suspect vehicle, toward Allen. Allen had stepped out of the car in which he had been riding, and was standing right next to it. He was still somewhat in the doorway, with the car moving away from him. When he first heard the gunshots, Nuno’s car had not completely cleared his position. The suspect vehicle was still in front of Nuno’s car, approximately four to five car lengths away. The lower driver’s side portion of Nuno’s windshield broke, and he realized he was being shot at. Glass from the windshield cut his left cheek, and the bullet, which struck the driver’s side door frame, was probably inches from his face. Nuno heard several booms. Allen heard two or three shots. Nuno was not sure which shot hit the windshield, but it was neither the first nor the last.
“As this was going on, the suspect vehicle started to move. Nuno accelerated to catch up to it, and Allen followed Martinez. At the intersection of Angelus and Spruce, approximately 100 yards from where Martinez had exited the vehicle, the two passenger side doors opened. As the car was either completely stopped or moving slowly, Morrison got out of the rear passenger side. Nuno did not see anything in his hands. Silva got out of the front passenger side. He was dressed in dark clothing and holding a chrome-colored handgun.
“Because Silva was holding a firearm, Nuno positioned his car at an angle and began to shoot at him through the broken-out passenger window. He could not tell whether any of his shots struck Silva, who disappeared into the darkness, as did Morrison. Having lost sight of them, Nuno came around the driver’s side of the suspect vehicle, at which point he saw the driver exit. It was Fouse. Nuno gave chase as she ran into a yard across the street, then took her into custody without further resistance.
“Fouse was taken into custody around 4:45 a.m. A subsequent search of the vehicle revealed a number of items that the [H.G. Sr. family] later identified as belonging to them, as well as a black baseball cap and black ski mask. The ski mask had two eyeholes, and a mouth opening that had been closed by some means. A camouflage hood was found on the rear floorboard. A shotgun was found in the front yard of [a] residence [on] Angelus, where Martinez had jumped the fence into the backyard and fled from Allen. In the backyard was a bandolier with shotgun shells in it. “[Stanislaus County Sheriff’s Deputy] Ward assisted in taking Silva into custody about 5:30 or 6:00 a.m. Silva was hiding in the carport of [a residence on] South Orange Street. When apprehended, he had a cell phone in his hand. Eight black plastic zip ties, each individually secured in a loop, were found underneath the vehicle where Silva had been hiding. Although Silva only had a pocketknife on his person, two black nine-millimeter magazines for a semiautomatic weapon were found in the backyard of the residence, about 15 to 20 feet from the carport. One contained 10 rounds and the other contained nine. A black Browning High-Power semiautomatic handgun with a magazine in it was subsequently located in the backyard of [a neighboring residence on] Spruce. The two backyards were separated by a fence with a gap in it, and the two magazines were some six to 10 feet from the black handgun.
“Although the black handgun was photographed where found and Deputy Luck, then a Stanislaus County Sheriff’s Department trainee, was assigned to watch the evidence in the area, the gun was no longer there a couple of hours later when sheriff’s personnel returned to collect it, and Luck was no longer in the immediate area. A resident of the house agreed to assist Deputy Reed, Luck’s field training officer, in trying to recover the handgun. The following day, this person directed Reed to an apartment complex in Turlock and retrieved what appeared to be the gun. A check of the weapon’s serial number revealed it had been taken in the [Jimmy L.] robbery. Subsequent comparison revealed that one of the unfired cartridges in the magazines found in the backyard [of a residence on] South Orange most likely was cycled through this gun.
“A silver-colored Smith and Wesson .357-caliber revolver was found in an adjacent backyard [on] South Orange. The revolver, which was capable of holding six rounds, contained six empty shell casings.
“Nuno assisted in capturing David Michael Silva, who was hiding in a duplex laundry room on Spruce, near Angelus. David Michael Silva was taken into custody between 6:00 and 7:00 a.m.
“Just before 8:00 a.m., Stanislaus County Sheriff’s Detective Cook found Martinez hiding in the backyard of [a] residence at the corner of South Avenue and South Orange Street. A black zip tie and a loaded Mossberg 12 gauge shotgun (also known as a Moss) were recovered from the area in front of [a] residence [on] Angelus. A black strap containing 12 gauge shotgun rounds was found in the backyard of the residence. “Around 1:30 p.m., Morrison was taken into custody inside [a] residence [on] South Avenue.” (People v. Fouse, supra, F050427, fns. omitted.)
The jury was instructed in relevant part, in order to find defendant guilty of the crime of attempted murder as charged in counts 35 and 36, or lesser included offenses thereof, they must be satisfied beyond a reasonable doubt that: (1) “The crime of robbery was committed;” (2) “That the defendant aided and abetted that crime;” (3) “That a co-principal in that crime committed the crime of ... attempted murder, or lesser included offenses thereof;” and (4) “The crimes of ... attempted murder, or lesser included offenses thereof were a natural and probable consequence of the commission of the crime of robbery.”
Petition for Resentencing and Evidentiary Hearing
On January 4, 2022, defendant filed a petition for resentencing pursuant to
2022, the trial court concluded defendant could no longer be guilty of attempted murder under California law as amended by the changes to
At the evidentiary hearing Roy Pettit, who was with the Stanislaus County Sheriff’s Department in September 2003, testified regarding his involvement in an aerial surveillance team that was assisting the sheriff’s department in an investigation they were conducting regarding a series of robberies. He was an observer in an aircraft that was surveilling a car, a Buick with a big “Cold Pimp’n” insignia on the back window on September 10, 2003. The car was parked in an orchard across the street from a house and it was “blacked out,” meaning its lights were off. He turned on a video machine on the plane to start recording. The camera used forward looking infrared (FLIR) that records whatever the camera sees and interprets; the camera sees heat and light in a
Former Stanislaus County Sheriff’s Detective Marcelino Nuno testified regarding his encounter with the same Buick with the “Cold Pimp’n” insignia on the back window. He explained the Buick was involved in a high-speed pursuit on September 10, 2003. Nuno had information a home had been invaded immediately preceding the pursuit of the Buick.
Defendant was driving the Buick during the pursuit. Nuno was driving a law enforcement vehicle and Sergeant Lloyd Allen was in his car. Nuno explained he activated his emergency vehicle lights, believing the people they had been following the previous 30 days were in the Buick, namely, David Silva, David Morrison, and Anthony Martinez. The Buick ran through stoplights and stop signs. At some point shots were fired from the Buick. Nuno explained they got on Spruce and “people started exiting the car after one of the occupants[, identified as Martinez,] exited the vehicle. As it was taking off, shots were being fired from the vehicle.” Martinez ran towards a residence after exiting the vehicle. Allen fired shots at Martinez. Then, Silva fired four to five shots and one of the rounds hit Nuno’s front windshield, “[k]ind of directly in front of” Nuno; he was behind the steering wheel driving. The bullet ended up lodged in the doorframe of the driver’s side door. Nuno suffered a cut to his upper cheek but was not seriously injured. Allen was transitioning out of the car when the shots were fired. Allen also shot at the second passenger who exited the vehicle.
The car in front of Nuno continued forward to the T-intersection of Angelus and Spruce at a high rate of speed and eventually stopped. Nuno saw David Silva, the front passenger of the vehicle, get out next; he was holding a chrome handgun. The rear passenger, identified as Morrison, also got out of the same side of the vehicle. The car continued to move when they exited. Silva glanced in Nuno’s direction and was running. Nuno positioned his vehicle to the left side of the car, grabbed his rifle, placed it out the passenger side window, and shot a couple rounds toward Silva. Allen was back where Martinez had exited the vehicle. Seconds after Morrison, Martinez, and Silva got out of the Buick, the car stopped and defendant got out of the driver’s seat. Defendant ran in an easterly direction into a yard and Nuno followed her on foot. He eventually caught up to her and she stopped on his command. Nuno did not see anything in defendant’s hands and she did not make any aggressive moves toward him. Nuno was aware that Silva and Martinez abandoned their weapons prior to being arrested and Nuno testified he did not have information that anybody other than Silva fired on anyone at the scene.
Following the presentation of evidence at the evidentiary hearing, the court concluded it did not find that defendant would have been convicted of
Redesignation of Attempted Murder Convictions
In considering resentencing after the evidentiary hearing, the court stated People v. Silva (2021) 72 Cal.App.5th 505 held subdivision (e) of former section 1170.95, now section 1172.6, “appears to invest the superior court with considerable discretion in redesignating the petitioner’s murder convictions as underlying felonies and resentenc[ing] a petitioner to an appropriate term of years based on his or her individual capability [sic].” The court stated it did not recall if the jury was instructed on assault with a firearm as a lesser offense to the attempted murder, but the court thought it was “really what happened here.” That is, defendant “may have abetted in the assault on a peace officer with a firearm, and that does not require the specific intent to kill.”
Based on this conclusion, the court indicated it was inclined to sentence defendant to two lesser counts of assault with a firearm on a peace officer (
On September 30, 2022, the court held another hearing at which defendant’s counsel argued the attempted murders should not be redesignated as assaults with a firearm on a police officer. In support, counsel argued defendant had no firearm and the court must find sufficient evidence beyond a reasonable doubt under an aider and abettor theory. However, there was no evidence defendant had knowledge of Silva’s intentions or that defendant specifically intended to assist Silva. Additionally, there was no action on defendant’s part to do so. Defense counsel asserted defendant did “nothing other than what she had been doing the entire time, which is driving,” and the court made factual findings that defendant’s intent was to evade officers.
The court then ordered counts 36 and 37 be redesignated as assault on a peace officer using a firearm on an aiding and abetting theory and that defendant be sentenced to two years (one-third the midterm of six years) consecutive, as to each count. The court also added a violation of
DISCUSSION
I. Senate Bill No. 1437 and Senate Bill No. 775
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which became effective on January 1, 2019. Senate Bill 1437 “amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amended
Accordingly,
Additionally,
“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2 .”
The legislation also added
Pursuant to amended
If, at the hearing, the prosecution fails to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under
II. Analysis
Defendant contends the court erred in redesignating the attempted murder convictions as assaults on peace officers and evading police because the jury convicted her of “what was alleged to be the target offenses underlying the attempted murder convictions, which were robberies.” She asserts the jury was instructed under the natural and probable consequences doctrine that it could convict her of attempted murder upon a finding (1) a robbery was committed; (2) defendant aided and abetted the robbery; and (3) a coprincipal in the offense committed attempted murder. She argues, because she was convicted of the underlying and target offenses—robberies—the court erred in redesignating the attempted murders as nontarget offenses—two counts of assault with a firearm on a peace officer and one count of evading a peace officer. Accordingly, the convictions on those counts must be dismissed. Alternatively, she contends insufficient evidence supports a finding she aided and abetted the assaults with a firearm on the police officers (counts 36 and 37), relying in part on the trial court’s initial statements that there was no evidence she “encouraged the shooting or did anything to make the shooting easier” and that she did nothing but try to “get away rather than aiding or abetting or encouraging [Silva] to fire the weapon.”
The People concede “the target offense for purposes of the natural and probable consequences instruction read to her jury on the attempted murder counts was robbery.” They also agree with defendant’s contention “she was
We conclude the court erred in redesignating defendant’s attempted murder convictions as two counts of assault on a peace officer and felony evasion.
Initially, the issue before us turns on the interpretation of
In reviewing the plain language of
Said differently,
The authorities the People rely upon are inapposite. They all discuss the discretion afforded to a court in redesignating a conviction that is now invalid as a result of the changes to
In People v. Howard, supra, 50 Cal.App.5th 727 (Howard), the defendant and two of his codefendants were charged with the murder of a woman shot and killed during a burglary of her home in 2010. (Id. at pp. 729, 731–732.) The defendant was convicted of first degree murder with a felony-murder special circumstance, and the jury found he had been armed in the commission of the offense. (Id. at pp. 729–730, 732.) On direct appeal, the felony-murder special circumstance was reversed because the evidence was insufficient to show the defendant (who was not the actual killer) acted with reckless indifference to human life. (Id. at pp. 730, 733.) The defendant then moved to vacate his murder conviction and for resentencing pursuant to former section 1170.95, now section 1172.6. (Howard, at pp. 730, 733.) The parties agreed the defendant’s murder conviction should be vacated and that the underlying felony was burglary, but they disagreed on the degree of the offense. (Id. at pp. 730, 733–734.) The court vacated the defendant’s murder conviction and redesignated it as first degree burglary plus a one-year arming enhancement under
On appeal, the Howard court held “the court properly redesignated the underlying felony as first degree burglary pursuant to [former] section
In People v. Silva, supra, 72 Cal.App.5th 505 (Silva), the defendant was convicted in a jury trial with two codefendants of two counts of first degree murder arising out of a home invasion robbery. (Id. at pp. 509–513.) He successfully petitioned for resentencing under former section 1170.95, now section 1172.6. (Silva, at pp. 510, 513.) In redesignating the defendant’s convictions under former section 1170.95, subdivision (e), the court vacated the two murder convictions and resentenced the defendant on six home invasion robberies or attempted robberies based on the number of robbery victims alleged in the original information. (Silva, at pp. 510, 515.) On appeal, the defendant challenged his sentence, asserting it was constitutional error under the Fifth, Sixth, and Fourteenth Amendments to impose sentence upon him for six robbery offenses of which he was never found guilty by a jury. (Silva, at p. 517.) He also argued his murder convictions should have been redesignated as generic, second degree robberies rather than home invasion robberies in concert. (Id. at p. 518.)
The Silva court held, in part, there was “no statutory impediment to the imposition of sentence on more counts on resentencing under [former] section 1170.95, subdivision (e) than the number of murder convictions originally sustained.” (Silva, supra, 72 Cal.App.5th at p. 531.) The Silva court also concluded “the federal and state Constitutions pose no bar to the redesignation of additional counts, so long as the petitioner receives notice, an
The Silva court further rejected the defendant’s claim the court could not redesignate the vacated convictions to “past alleged crimes that remain unadjudicated” reasoning, “[i]n 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.” (Silva, supra, 72 Cal.App.5th at p. 530.) Accordingly, “[i]f 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.” (Ibid.)
The Silva court further rejected the defendant’s claim the court could not redesignate his murder convictions as first degree robberies (rather than generic second degree robberies), relying upon the conclusion in Howard, supra, 50 Cal.App.5th at pages 738–740, that “a resentencing court could redesignate a vacated murder conviction as a lesser offense commensurate with [the defendant’s] participation in the underlying felony, not just generically, but with the petitioner’s individual culpability in mind based on the evidence at trial.” (Silva, at p. 519.) The Silva court expanded, “[w]hat 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.” (Id. at p. 520.) The Silva court also agreed with the defendant 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 former section 1170.95 (now § 1172.6), reasoning in part the “subdivision (e) proceeding is not simply a resentencing, but also a redesignation of one or more criminal offenses which mimics a criminal conviction.” (Id. at p. 523; see id. at pp. 520–524.) It concluded the defendant was given the requisite notice and not deprived of the opportunity to be heard before he was resentenced. (Id. at pp. 525–526.)
In People v. Watson (2021) 64 Cal.App.5th 474 (Watson), the defendant was convicted by plea of second degree murder in
On appeal, the Watson court rejected the defendant’s argument the plain language of former “section 1170.95, subdivision (e) requires a court ‘to select one felony as the designated underlying offense, and sentence him only as to that one.’” (Watson, supra, 64 Cal.App.5th at p. 483Id. at p. 492.) The Watson court relied, in part, on section 7 to conclude the Legislature’s use of the singular form of the phrase “underlying felony” in subdivision (e) “was not necessarily intended to restrict courts to designating only one underlying felony under [former] section 1170.95, subdivision (e).” (Watson, at p. 485.) Rather, “[t]he plain language of the statute ... confirms that the Legislature did not intend to require courts to designate only one felony in all cases.” (Id. at p. 487.) Additionally, the “evidence establishes beyond a reasonable doubt that Watson aided and abetted both a burglary and a robbery prior to [the] killing.” (Id. at p. 486.) The Watson court further stated it “agree[d] with the Howard court’s reasoning that reading [former] section 1170.95, subdivisions (d)(3) and (e) together reflects a legislative intent to grant trial courts flexibility in designating the underlying offense for resentencing purposes.” (Id. at p. 488.) And, concluding “subdivision (e) requires a court to redesignate a vacated murder conviction as only one underlying felony—even when the evidence shows beyond dispute the commission of more than one underlying felony—would run directly contrary to this principle.” (Ibid.) The Watson court further held, the trial court calibrated the defendant’s punishment to his culpability for committing both of those crimes, and to prohibit it from doing so on the facts of the case “would run contrary to the express purposes of the statute.” (Id. at p. 492.)
Notably, these cases provide that the court has varying degrees of discretion in redesignating the invalid conviction(s) under section 1172.6, subdivision (e), where the target or underlying offense was not charged and the defendant was not convicted thereof. (See Silva, supra, 72 Cal.App.5th at p. 530 [“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”].) But, as discussed,
Accordingly, we conclude defendant’s first contention has merit and the trial court’s order must be reversed on that basis.
DISPOSITION
The order is reversed and the matter is remanded for resentencing consistent with this opinion.
PEÑA, J.
WE CONCUR:
LEVY, Acting P. J.
SNAUFFER, J.
23.