THE PEOPLE, Plaintiff and Respondent, v. DONALD ALEXANDER WATSON, Defendant and Appellant.
A159284 (Solano County Super. Ct. No. FC23784)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 5/20/21
In 1988, defendant Donald Watson was convicted by plea of second degree murder (
natural and probable consequences doctrine by modifying the mens rea element for murder under those theories. (Stats. 2018, ch. 1015, § 1, subds. (f), (g).) The legislation also created a procedure by which a defendant previously convicted of murder under either of those theories can file a petition for resentencing. (
As pertinent here, the statute provides that where murder was charged generically and the underlying felony was not charged, the trial court redesignates the vacated murder conviction as the “underlying felony for resentencing purposes.” (
The trial court found Watson was entitled to relief under
Watson appeals. He argues the plain language of
Watson further challenges, primarily on constitutional grounds, the imposition of the restitution and parole revocation restitution fines.
In the published portion of the opinion, we conclude the trial court properly redesignated the murder conviction as both burglary and robbery. In the unpublished portion of the opinion (discussion parts III–V, post), we remand to permit the court to specify the duration of Watson’s parole period, to modify the judgment to show the restitution fine is satisfied in full, and to strike the parole revocation fine. We reject Watson’s remaining challenges.
FACTUAL AND PROCEDURAL BACKGROUND
I. Murder Conviction and Initial Sentence
In 1987, Watson was charged with the murder of Alan (Jon) Aaron Castle (
II. Section 1170.95 Petition
On January 14, 2019, after the enactment of Senate Bill No. 1437, Watson filed a petition to vacate his murder conviction and obtain resentencing pursuant to
Based on these facts, Watson contended he was entitled to relief under
On May 13, 2019, the People filed an opposition to the petition on the grounds that Senate Bill No. 1437 is unconstitutional. The People did not address Watson’s eligibility for relief under
On October 15, 2019, the court conducted a hearing on Watson’s petition. Watson testified about the night of the incident in detail as follows. Watson met with James, who rented a hotel room that he would share with Watson. Watson met Castle in the hotel parking lot. Castle stated to Watson he wanted to buy drugs. Based on this, Watson assumed Castle had some money. However, Castle later changed his mind and told Watson he no longer wanted to buy drugs.
Subsequently, James devised a plan to rob Castle and Watson agreed to the plan. Specifically, they agreed to go to Castle’s hotel room and take his money. Watson and James left their hotel room and headed to Castle’s room. While on the way, Watson saw Garland, with whom James discussed the plan to rob Castle.
When Watson reached Castle’s hotel room, he knocked on the door and Castle let him in. Watson walked into the room, grabbed Castle from behind, and held him in order “[t]o subdue him . . . .” Garland and James then entered the room, at which point Castle started kicking and attempting to fight back. Garland began punching Castle. Watson then saw some blood shoot out, realized something was wrong, and let Castle go.
Watson testified Garland then started “swinging his arm at [Castle] crazy.” Watson realized Garland had a knife. Watson saw that Castle was still alive and tried to prop him up, but he just collapsed. Garland then rushed back toward Castle and stabbed him in the throat and chest. Watson, Garland, and James then left the room. James had Castle’s wallet after the incident.
The next morning, Watson went to a bail bonds company and told its staff he had “witnessed a murder” and “somebody get stabbed,” as well as the person “who did it.” Watson also called the hotel and “told them that someone was in the room.”
In addition to taking Watson’s testimony, the court admitted into evidence a transcript of a June 26, 2013 parole consideration hearing that contained similar testimony from Watson and was attached to his petition.
After hearing Watson’s testimony, the court heard the parties’ arguments whether Watson was entitled to relief under
On October 23, 2019, the court conducted another hearing on Watson’s petition. The court found that while Watson “was a major participant in the crime,” “he was not acting with knowing and reckless indifference to human life.” Accordingly, the court granted the petition.
The court then determined Watson’s new sentence. It stated, “My belief was that subject to these crimes—and I’m supposed to figure out what he would’ve been convicted for is robbery.” In response, the prosecutor stated, “I can make an argument to maybe a first-degree burg[lary].” The court then stated, “That’s a fair point. I hadn’t thought of that. She’s probably right on that, first-degree burg[lary]. And the robbery would be in the first-degree, as well. . . .” Watson’s counsel waived arraignment on the burglary charge and confirmed that there was not “[a]ny legal cause why he can’t be sentenced at this time[.]”
The court found Watson guilty of both first degree burglary (
With respect to parole, the court stated, “Sir, I believe you’re still subject to a term of parole for this violation. You may be released today or tomorrow. If you are, I’m ordering you go to parole within 48 hours if they don’t contact you ahead of time.”
The court ordered that Watson pay a restitution fine (
assessment and a $40 court operations assessment. The court awarded Watson credit for time served in custody, reserving jurisdiction over the number of credits.
On October 23, 2019, the clerk filed an abstract of judgment reflecting that Watson was convicted of second degree burglary and second degree robbery. The clerk wrote “TBD” for the number of credits for time served.
On October 29, 2019, Watson filed a petition with the court, notifying it that he had not yet been released from custody. He requested that the court vacate the upcoming hearing and amend the abstract of judgment to state he had served 11,714 actual days (32 years) in custody as of October 23, 2019. A couple of days later, the court conducted a hearing on Watson’s October 29 petition and awarded him a total of 11,714 custody credits. The court again ordered the sheriff to release Watson from custody.
The prosecutor then requested a ruling on the constitutional arguments raised in opposition to Watson’s
On that same day, the court filed a minute order and an amended abstract of judgment. The minute order noted that Watson was resentenced under
The People appealed from the court’s order granting Watson’s
DISCUSSION
I. Statutory Framework
Senate Bill No. 1437 amended the felony-murder rule and murder under the natural and probable consequences doctrine “to ensure that murder
punishment must apply in all cases.’ [Citation.]” (People v. Howard (2020) 50 Cal.App.5th 727, 735 (Howard).)
Senate Bill No. 1437 also added
The trial court reviews the petition to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (
“If [the] petitioner is entitled to relief pursuant to this section, 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.” (
Finally, “[a] person who is resentenced pursuant to this section shall be given credit for time served. The judge may order the petitioner to be subject
II. Designation of Murder Conviction as More Than One Felony
The parties agree that Watson was entitled to have the murder conviction vacated pursuant to
The People argue that Watson forfeited his right to assert these challenges on appeal by failing to assert them before the trial court. However, they contend that, in any event, designating more than one underlying felony was proper under
We first address the People’s forfeiture argument. Assuming Watson forfeited his right to appellate review of the court’s designation of two underlying felonies, reviewing courts generally have discretion to consider on the merits issues a party has not preserved for review. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310, citing In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887–888.) Here, we choose to exercise that discretion to confront the issue since “it involves ‘a pure question of law which is presented by undisputed facts’ ” (People v. Hines (1997) 15 Cal.4th 997, 1061), and to avert any claim of inadequate assistance of counsel (People v. Yarbrough, supra, 169 Cal.App.4th at p. 310).
We now turn to the question before us: whether, as Watson contends,
The proper construction of
B. The court properly designated the conviction as both burglary and robbery under section 1170.95, subdivision (e) .
1. Language of the Statute
In applying the rules of construction set forth ante, we begin by looking at the words of the statute. The pertinent provision is
At issue here is the proper interpretation of the phrase “underlying felony” in
murder context, the phrase ‘underlying felony’ means the offense that was the basis for felony-murder liability at trial.” (Id. at p. 737, citing People v. Clark (2016) 63 Cal.4th 522, 615 [“The statutory definition of first degree felony murder is . . . ‘ . . . murder . . . committed in the perpetration of, or attempt to perpetuate [certain enumerated felonies including robbery and burglary]’ “].) The parties apparently do not dispute this definition of what constitutes an underlying felony within the felony-murder context. The parties, however, debate whether “underlying felony” as used in subdivision (e) is singular or plural.
Watson contends that “underlying felony,” on its face, is singular and, therefore, means one felony. At first glance, it appears the language of
Applying
In addition, CALCRIM No. 540A, the jury instruction listing the elements of first degree felony murder, contemplates that multiple felonies may underlie a felony-murder conviction. In relevant part, it states: “To prove that the defendant is guilty of first degree murder under this theory [of felony murder], the People must prove that: [¶] 1. The defendant committed [or attempted to commit] _____ <insert felony or felonies from
The facts here present another example of a case in which the basis for felony-murder liability is more than one felony. As discussed ante, Watson testified he and his two accomplices entered Castle’s hotel room with the specific intent to grab him and steal money from him. This evidence establishes beyond a reasonable doubt that Watson aided and abetted both a burglary and a robbery prior to Castle’s killing.6 (See Lewis, supra, 25 Cal.4th at p. 642 [felony-murder robbery requires intent “to steal the victim’s property before or during the fatal assault“; felony-murder burglary requires proof of entry into a “residence with the intent to commit a felony or theft“]; People v. Melton (1988) 44 Cal.3d 713, 767 [“Robbery involves an assaultive invasion of personal integrity; burglary a separate invasion of the sanctity of the [dwelling]“]; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 321 [hotel or motel room being used for habitation, regardless of duration, is an inhabited dwelling for purposes of first degree robbery and burglary].)
The cases discussed ante, as well as the facts in this case, clearly illustrate that felony-murder liability may be predicated on more than one
felony. Viewed in this context, it is reasonable to apply
We are mindful that the Supreme Court has said
Howard is instructive on this point. In that case, Howard was convicted of first degree felony murder with a felony-murder special circumstance that he was engaged in the commission of a residential burglary. (Howard, supra, 50 Cal.App.5th at p. 732.) He was sentenced to life without the possibility of parole. (Ibid.) Howard was not separately charged with burglary, and at trial the jury was only instructed on the general law of burglary without reference to degree. (Id. at pp. 731, 732.) On appeal, the appellate court found sufficient evidence that Howard aided and abetted a residential burglary but reversed the felony-murder-burglary circumstance and resentenced him to 25 years to life. (Id. at pp. 732–733.)
On remand, Howard petitioned to vacate his murder conviction and for resentencing under
The appellate court affirmed. (Howard, supra, 50 Cal.App.5th at p. 730.) The court first noted that the evidence at trial was uncontroverted that the burglarized building was a residence and therefore the offense underlying Howard’s felony-murder conviction was first degree burglary. (Id. at p. 738.) It then explained that nothing in subdivision (e) “direct[s] the court to impose the lesser degree of the felony offense. Had the Legislature intended to dictate such a result, ‘it easily could have done so.’ [Citation.]” (Ibid.) The court therefore rejected Howard’s argument that ”
The court also read subdivision (e) of
We agree with the Howard court’s reasoning that reading
Watson then points us to
To the extent Watson contends the court’s designation of two felony convictions in this case implicates the Three Strikes law, it is prematurely raised and we do not consider it on the merits. The instant convictions could only affect Watson if he were to commit a third offense and if the prosecutor then seeks to use his prior convictions as a basis for sentence enhancement in a future, unrelated criminal action. Only then would Watson be vulnerable to increased punishment for the subsequent offense under the Three Strikes law. At this juncture, these issues are not ripe for decision. Deciding whether the present offenses qualify as serious felonies for purposes of the Three Strikes law would constitute an advisory opinion relating to the hypothetical use of the current felony conviction to enhance punishment for a future offense. Such a ruling would violate the well-settled rule that courts should “avoid advisory opinions on abstract propositions of law. [Citations.]” (In re William M. (1970) 3 Cal.3d 16, 23, fn. 14; see Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.)
In any event, a decision as to whether a prior offense qualifies as a “strike” is not made as of the date of the conviction on that offense, but rather at the time of the conviction on the future offense. (See People v. Green (1995) 36 Cal.App.4th 280, 283 [under
Accordingly, we conclude that the language of subdivision (e), viewed in context with the other subdivisions of
2. Legislative Purpose and History
Assuming that the language of the statute does not inexorably compel this conclusion, we may look to extrinsic aids, such as the statute’s purpose and legislative history. (Coalition of Concerned Communities, Inc. v. City of Los Angeles, supra, 34 Cal.4th at p. 737.)
“In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration.” (People v. Canty (2004) 32 Cal.4th 1266, 1280.) In an uncodified section of Senate Bill No. 1437, the Legislature declared, “Reform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.” (Stats. 2018, ch. 1015, § 1, subd. (e).) The new law was “necessary to amend 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).)
The legislative history of Senate Bill No. 1437 echoes these purposes. An analysis of Senate Bill No. 1437 conducted by the Senate Committee on
In addition, the legislative history of Senate Bill No. 1437 includes reference to People v. Dillon (1983) 34 Cal.3d 441, in which our Supreme Court referred to the felony-murder rule as ” ’ “barbaric” ’ ” and found that ” ‘in almost all cases in which it is applied it is unnecessary’ and ‘it erodes the relation between criminal liability and moral culpability’ [citation].” (Id. at p. 463, italics added; Assem. Com. on Public Safety, Analysis of Sen. Bill. No. 1437 (2017–2018 Reg. Sess.) as amended May 25, 2018, p. 5.) Additional analyses quote People v. Cavitt (2004) 33 Cal.4th 187, which explained:
” ‘The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he [or she] is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.’ ” (Id. at p. 197, italics and bracketed insertion added; Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as amended Feb. 16, 2018, pp. 6, 7; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as amended May 25, 2018, pp. 3, 4, 6.)
Further, in evaluating the bill‘s fiscal impact, the Department of Finance noted, “It is difficult for the California Department of Corrections and Rehabilitation to estimate potential savings associated with the bill as it is dependent upon judicial discretion.” (Dept. Finance, Enrolled Bill Rep. on Sen. Bill No. 1437 (2017–2018 Reg. Sess.) Sept. 6, 2018, p. 1.)
The statements of the preamble and the legislative history of Senate Bill No. 1437 confirm the Legislature‘s intent to restore, within the context of
Howard is again instructive. There, the court considered the expressed purposes of Senate Bill No. 1437, which supported the trial court‘s decision to designate Howard‘s murder conviction as first degree burglary, rather than second degree burglary. (Howard, supra, 50 Cal.App.5th at p. 739.) The court explained: “[O]ur conclusion that
We reach the same conclusion here. As explained in the preceding part, the evidence establishes beyond dispute that Watson aided and abetted both a burglary and a robbery before his accomplice fatally stabbed Castle. Accordingly, we agree with the People that by vacating Watson‘s murder conviction and designating that conviction as first degree burglary and robbery, the court, as in Howard, calibrated Watson‘s punishment to his culpability for committing both of those crimes. To prohibit the court from doing so on the facts of this case would run contrary to the express purposes of the statute. Further, adopting Watson‘s interpretation of subdivision (e) would bestow a windfall on Watson, who has already been afforded the ” ‘ameliorative benefits’ ” of the statute. (Howard, supra, 50 Cal.App.5th at p. 735.)
In sum, we conclude the trial court did not err in designating Watson‘s vacated murder conviction as both first degree burglary and first degree robbery pursuant to
III. Parole Supervision
Watson also challenges his placement on parole supervision, contending that
A. The court did not err by placing Watson on parole supervision under section 1170.95, subdivision (g).
The proper construction of
Like Watson, the defendant in Wilson argued that the court erred in failing to apply the general rule that, in the ordinary situation of original sentencing, excess presentence credits can reduce a period of parole. (Wilson, supra, 53 Cal.App.5th at pp. 47–48.) That rule is reflected in
Based on the language of
On the interpretation question, the Wilson court analogized
The Morales court observed that although ”
Just as the Morales court concluded the Proposition 47 statute does not require using excess credit to reduce or eliminate the parole period, the Wilson court concluded that the words “credit for time served” in
In addition to the statutory text, the Wilson court stated that the legislative history indicated an intent to ” ‘permit judges to impose a term of parole supervision upon completion of the term imposed under any resentencing’ . . . .” (Wilson, supra, 53 Cal.App.5th at p. 50Id. at pp. 50–51Id. at p. 51People v. Lamoureux (2020) 57 Cal.App.5th 136 (Lamoureux), the Fourth Appellate District, Division One, relying on Morales and citing Wilson with approval, also concluded that
Watson argues Morales is inapplicable because it had no occasion to discuss “the sentencing provisions in
Watson also contends that the Legislature, “in making application of 1170.95 retroactive to all cases based on felony murder, . . . had to have been aware that there would be individuals who had served length prison sentences that would now be vacated.” (Sic.) He contends that the Legislature intended to address situations like his, “where he had served so many additional years beyond that imposed at re-sentencing . . . .” According to Watson, “[p]ermitting the trial judge to consider whether to impose parole does not indicate an intention that section 2900.5‘s provision for credit for time served on a term of parole should not apply in this context.” We disagree. Again, we point to Wilson, where we concluded that the language of
To the extent Watson is suggesting that failing to apply excess credits to eliminate a parole period does not comport with the statute‘s purpose to ” ‘more equitably sentence offenders in accordance with their involvement in homicides,’ ” we are unconvinced. The Wilson court explained, “While [section 1170.95‘s] general objective is to treat offenders with uniformity, it also serves the ‘objective of parole‘—to provide ‘supervision and counseling, to assist in the parolee‘s transition from imprisonment to discharge and reintegration into society.’ [Citation.]” (Wilson, supra, 53 Cal.App.5th at pp. 50–51Id. at p. 51.)
Next, Watson takes the position that the court “only had the authority to put [him] on parole for up to 3 years following completion of his 6-year sentence.” As best we can discern, Watson argues that
The Lamoureux court rejected a similar argument. (Lamoureux, supra, 57 Cal.App.5th at pp. 149–150.) It construed the syntax of section 1170.95, subdivision (g) and concluded “the most natural reading of the statute is . . . that a person may be subject to parole supervision following the completion of the sentence and, furthermore, the parole supervision period may be up to three years in duration.” (Lamoureux, supra, at p. 149Id. at p. 150Morales court‘s implied determination that the specified one-year period of parole in the Proposition 47 statute “established the maximum duration of the parole period, not a deadline akin to a statute of limitations.” (Lamoureux, at p. 149, citing Morales, supra, 63 Cal.4th at p. 405.) Lamoureux explained that these conclusions in Morales “confirm our interpretation of the nearly identical statute at issue here, section 1170.95, subdivision (g).” (Lamoureux, at p. 149.)
We agree with the reasoning in Lamoureux. Assuming Watson completed his sentence when his new six-year sentence expired, the court had authority to place him on parole supervision for up to three years in duration following his release from custody. (See Lamoureux, supra, 57 Cal.App.5th at p. 150Wilson, supra, 53 Cal.App.5th at p. 52.)
B. Remand is appropriate to permit the court to select a period of parole.
Watson argues that even if the court had discretion to place him on parole supervision, the court nonetheless erred in failing to exercise its discretion and select a period of parole. The People agree, as do we.
“Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant‘s record. [Citation.]” (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.) During resentencing in this case, the court stated, “I believe you‘re still subject to a term of parole for this violation. You may be released today or tomorrow. If you are, I‘m ordering you to go to parole within 48 hours if they don‘t contact you ahead of time.” However, the court did not select a duration for parole supervision. Since the record does not indicate the court was aware that it had the discretion to impose a parole period “for up to three years following the completion of [Watson‘s] sentence” (
Accordingly, we remand for the limited purpose of allowing the court to exercise its discretion to specify the duration of Watson‘s parole period. On remand, the court may properly consider the fact that Watson has served nearly 32 years in custody, as well as over one and a half years of parole supervision since he was ordered released from custody in late October 2019.
IV. Restitution Fine
Watson also challenges the $1,800 restitution fine (
The People contend Watson has forfeited this argument. We agree. (See People v. Trujillo, supra, 60 Cal.4th at p. 856 [forfeiture rule applies to sentencing errors]; In re Seaton (2004) 34 Cal.4th 193, 197–198 [forfeiture rule applies to alleged constitutional violations]; see also Lamoureux, supra, 57 Cal.App.5th at pp. 151–152 [exceptions to forfeiture rule based on “unauthorized sentence” or threatened ineffective assistance of counsel claim did not apply to failure to object to restitution fine].)
Even if we were to overlook the forfeiture, we need not decide whether the court erred in setting the restitution fine at $1,800. Whether the proper amount for the fine was $1,800 or a lesser amount, we agree with Watson that his excess custody credits should have been applied to fully satisfy the fine. (See People v. Morris (2015) 242 Cal.App.4th 94, 101–103 (Morris) [deeming defendant‘s restitution fine satisfied under version of
The ex post facto clause applies to Watson‘s restitution fine and therefore the fine is governed by the statutes in effect at the time of his offense. (Morris, supra, 242 Cal.App.4th at p. 102.) In 1987,
Under the plain terms of former
V. Parole Revocation Restitution Fine
Watson further argues, and the People agree, that the court‘s imposition of the $1,800 parole revocation restitution fine under
We decline to apply the forfeiture rule to foreclose an ineffective assistance of counsel claim since we can see no conceivable tactical explanation for defense counsel‘s failure to advise the court that
DISPOSITION
The case is remanded to the trial court for the limited purpose of determining the duration of Watson‘s parole period in accordance with
The clerk of the superior court is directed to modify the amended abstract of judgment to reflect this modification and to forward a copy of the new amended abstract to the Department of Corrections and Rehabilitation.
Wiseman, J.*
WE CONCUR:
Fujisaki, Acting P. J.
Jackson, J.
A159284/People v. Donald Alexander Watson
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A159284/People v. Donald Alexander Watson
Trial Court: Superior Court of the County of Solano
Trial Judge: John B. Ellis, J.
Counsel: Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, René A. Chacón and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.