Opinion
C097510
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. DERRICK KINTE COURTNEY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 02F00882)
BOULWARE EURIE, J.
We address here the scope of a trial court's authority when resentencing a person whose murder conviction has been rendered invalid by retroactive changes to the law. The relevant retroactive change applies where a defendant has participated in the "underlying felony" of robbery with other people, and one of those other people kills someone, the defendant is no longer guilty of murder based solely on participation in the robbery. (See §§ 1172.6, subds. (a), (d), (e); 189, subd. (e).)
Undesignated statutory references are to the Penal Code.
Defendant Derrick Kinte Courtney and his codefendant Melvin Jaman Peete robbed a married couple and during the robbery, Peete shot and killed the husband. Courtney was prosecuted and convicted of murder under a robbery-murder theory and also convicted of robbing the husband. He was not charged with robbing the wife but does not dispute the strength of the evidence that he did rob her.
Courtney successfully challenged his murder conviction after changes to the law and the trial court redesignated the murder conviction as multiple felonies that were never charged in the original prosecution (including robbery of the wife), imposed firearm enhancements on each of the redesignated offenses, and sentenced him to a new aggregate term that included an upper term on the base count.
Section 1172.6, subdivision (d)(3) provides that if a murder conviction is vacated, the person "shall be resentenced on the remaining charges." (Italics added.) Section 1172.6, subdivision (e) says the person's murder conviction "shall be redesignated as the target offense or underlying felony for resentencing purposes if . . . the target offense was not charged." (Italics added.) Which provision applies here, when one underlying felony (robbery of the husband) was charged, but one (robbery of the wife) was not charged? Courtney argues section 1172.6, subdivision (d)(3) applies, not section 1172.6, subdivision (e). We disagree. The trial court here properly redesignated the murder conviction.
In addition to his unpersuasive contention that the trial court (1) exceeded its authority by redesignating his murder conviction, Courtney also contends the trial court (2) exceeded its authority by imposing firearm enhancements on the new offenses, (3) exceeded its authority by choosing new offenses that cannot be "underlying felonies" under the law, (4) erred by imposing an upper base term, and (5) erred by failing to strike the firearm enhancements as to the subordinate terms.
We reject Courtney's second claim, and accept the People's concession that Courtney's third claim has merit. Accordingly, we will reverse three of the four redesignated offenses the trial court chose and remand the matter for a full resentencing. Because of the remand, we do not reach Courtney's fourth and fifth claims, which he can raise during resentencing proceedings in the trial court. We will affirm the judgment in all other respects.
BACKGROUND
Courtney and Peete robbed a husband and wife after forcibly entering their house in 2001. The couple and their two guests were forced to lie on the floor as the men demanded property, threatened to shoot them, and took jewelry and keys to the couple's cars. As Peete searched the house, Courtney stayed with the victims while holding a handgun, which he also pointed at the couple's two-year-old son. After he ripped a telephone off a wall and threatened the victims not to call the police, Courtney left the scene in one car that belonged to the couple. Peete tried to leave in a second car the couple owned with another unknown accomplice, but that car stalled in front of the house. The husband emerged holding a shotgun, exchanged shots with Peete, and died hours later from a gunshot wound.
In 2004, a prosecutor charged Courtney and Peete with murder (§ 187, subd. (a); count one) and first degree robbery of an inhabited dwelling in concert with two or more people (§§ 211, 213, subd. (a)(1)(A); count two). The information alleged that both Courtney and Peete personally used a firearm as to the murder and robbery counts (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and also alleged a robbery-murder special circumstance as to the murder count (§ 190.2, subd. (a)(17)). Count three of the information charged Courtney with being a felon in unlawful possession of a firearm. (Former § 12021, subd. (a)(1).)
After being instructed on the felony-murder rule in connection with "persons engaged in the commission of the crime of robbery," a jury found Courtney guilty on all charges and also found true the allegations he personally used a firearm as to the first degree murder and robbery and found true the robbery-murder special circumstance as to the murder count. A panel of this court affirmed Courtney's convictions and sentence of life without the possibility of parole. (People v. Courtney (Sept. 28, 2006, C047770) [nonpub. opn.].)
After the enactment of legislation amending the felony-murder rule and creating a resentencing petition process for felony-murder convictions (see People v. Strong (2022) 13 Cal.5th 698, 707-708), Courtney successfully challenged his murder conviction, triggering the prospect of a new sentence. The People argued the trial court could redesignate Courtney's murder conviction as multiple felonies that were never charged: three counts of assault with a firearm (for pointing his handgun at the couple's two guests and the young child) and a second robbery offense (this one identifying the wife of the married couple as the victim). Courtney argued sentencing him on previously uncharged offenses was improper.
At an October 2022 hearing, the trial court agreed with the People and (1) renumbered Courtney's robbery offense (husband-victim) as count one, (2) redesignated Courtney's murder conviction as another robbery offense (wife-victim; count two) and three counts of assault with a firearm (§ 245, subd. (a)(2); counts three, four &five), (3) added firearm enhancements for each of the four redesignated offenses, and (4) imposed an aggregate sentence of 31 years four months, which included the upper term on count one. Courtney filed a notice of appeal with this court in December 2022. His opening brief was filed in June 2023, and this case was fully briefed on February 5, 2024.
DISCUSSION
I
Legal Background
A. Relevant Statutes
If a petitioner is entitled to resentencing relief on a murder conviction, "the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3), italics added.) But the "conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged." (§ 1172.6, subd. (e), italics added.)
Though section 1172.6, subdivision (e) does not define "target offense or underlying felony," there is consensus the phrase means the offense upon which liability was based for either the natural and probable consequences doctrine or the felony-murder rule. (People v. Fouse (2024) 98 Cal.App.5th 1131, 1144 (Fouse).)
B. Relevant Case Law
The combined reasoning of opinions from at least three different divisions of the First District teaches that, in light of the overall purpose and intent of section 1172.6, a trial court identifying the "underlying felony" for resentencing under section 1172.6, subdivision (e) has flexibility in crafting a new sentence that is tailored to the gravity of a defendant's conduct, and therefore may (1) redesignate more underlying felonies than the number of vacated convictions and (2) impose uncharged enhancements. (See People v. Silva (2021) 72 Cal.App.5th 505, 529-532 [no error in redesignating more counts of robbery than the number of murder convictions, because § 1172.6, subd. (e) "invest[s] the . . . court with considerable discretion," which permits attention to of the "full extent of the petitioner's criminal conduct" and "the number of crime victims, not just the number of murder charges on which the petitioner was convicted" (italics added)]; People v. Watson (2021) 64 Cal.App.5th 474, 477-478, 492 [no error in redesignating two underlying felonies in relation to only one vacated murder conviction, because a construction of § 1172.6, subd. (e) that is "more aligned with the statute's purpose and history is one that does not eliminate the discretion of the courts to designate more than one felony when necessary to 'calibrate' a defendant's punishment to his or her culpability"]; People v. Howard (2020) 50 Cal.App.5th 727, 739-742 [no error in imposing an enhancement that was never charged, because reading § 1172.6, subds. (d)(3) and (e) together suggests the Legislature "intended to grant the trial court flexibility . . . under subdivision (e)," thereby allowing a trial court to "calibrate[ ] . . . punishment to . . . culpability," consistent with the" 'traditional latitude'" courts have at sentencing].)
Recently in Fouse, the Fifth District observed that Howard, Watson, and Silva were all cases where the target offenses/underlying offenses were not originally charged, triggering section 1172.6, subdivision (e) (a conviction "shall be redesignated as the target offense or underlying felony . . . if . . . the target offense was not charged"). By contrast, the successful petitioner in Fouse originally was charged with (and convicted of) the robberies of which her attempted murder offenses were a natural and probable consequence. Accordingly, section 1172.6, subdivision (e) was inapplicable and the controlling provision was section 1172.6, subdivision (d)(3) ("the prior conviction . . . shall be vacated and the petitioner shall be resentenced on the remaining charges"). And since that provision limits resentencing to "the remaining charges," the Fouse court ruled the trial court erred in redesignating the attempted murder convictions rather than just vacating them. (Fouse, supra, 98 Cal.App.5th at pp. 1133, 1145-1150.)
II
Analysis
We review de novo questions of statutory interpretation. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
A. Second Robbery Charge
Courtney argues the reasoning of Fouse "squarely supports" his position on appeal that the trial court erred in redesignating his murder conviction. The relevant proposition in Fouse, as Courtney frames it, is that "where the target offense . . . was charged and found at trial, a court after granting a section 1172.6 motion may sentence on the target offense found by the jury but may not also sentence on other, uncharged offenses."
But there is an important difference between the circumstances of Fouse and the circumstances here. In Fouse, the successful petitioner was charged with and convicted of pertinent target offenses for each of her victims. (Fouse, supra, 98 Cal.App.5th at pp. 1133-1137, 1139 [three robbery convictions corresponding to three victims of the robbery, from which the petitioner and her codefendants were fleeing when shots were fired at a police vehicle pursuing them, rendering the crimes of attempted murder the natural and probable consequences of the robberies].) Here, by contrast, Courtney was originally charged with robbing the husband-victim, but not the wife-victim, and he does not dispute the evidentiary basis for a second robbery charge.
Thus, while clear in Fouse that section 1172.6, subdivision (e) was inapplicable because "the target offenses were charged" (Fouse, supra, 98 Cal.App.5th at pp. 11451146, italics added), here only one of the pertinent underlying felonies was charged. And as Watson explains, the phrases "underlying felony" and "target offense" in section 1172.6, subdivision (e) are "susceptible of either singular or plural meaning depending on context." (People v. Watson, supra, 64 Cal.App.5th at pp. 484-485; see id. at p. 485 [discussing authorities, including § 7, for the proposition that when interpreting statutory text, a singular number includes the plural and vice versa, and use of the word "the" likewise "does not mandate the singular"].) So "if . . . the target offense was not charged" (§ 1172.6, subd. (e), italics added) can mean if a target offense or underlying felony was not charged. For our purposes here, such a reading harmonizes Fouse with the reasoning of Silva, Watson, and Howard. (Cf. People v. Tan (2021) 68 Cal.App.5th 1, 6 ["our role is to harmonize the law where possible"].)
Accordingly, while a trial court may not redesignate a vacated murder conviction if all pertinent underlying felonies were originally charged (§ 1172.6, subd. (d)(3)), a trial court is not precluded from redesignating a murder conviction as one or more underlying felonies if only some of the underlying felonies were originally charged (§ 1172.6, subd. (e)). Here, because one of the robberies that Courtney committed was not originally charged, and he was convicted of murder under a robbery-murder theory, the trial court did not err in redesignating Courtney's murder conviction as that uncharged robbery.
B. Firearm Assault Convictions
The parties agree that the trial court could not redesignate Courtney's murder conviction as three firearm assaults (corresponding to the two guests and the young child) because the crime of assault with a firearm is not named in section 189, and therefore cannot be an "underlying felony" under section 1172.6, subdivision (e). In support of their concession, the People quote People v. Lewis (2001) 25 Cal.4th 610, 642, which says "[l]iability for first degree murder based on a felony-murder theory is proper when the defendant kills in the commission of robbery, burglary, or any of the other felonies listed in section 189." We accept the People's concession.
Accordingly, we will reverse the three counts of assault with a firearm that the trial court chose and remand for resentencing.
C. Imposition of Firearm Enhancement on Redesignated Robbery Conviction
Courtney cites People v. Arellano (2022) 86 Cal.App.5th 418, review granted March 15, 2023, S277962, in support of his contention that the trial court had no authority to impose a firearm enhancement on the redesignated robbery conviction. Arellano expressly disagreed with Howard on this issue. (Id. at p. 434 ["we . . . disagree with the Howard court's conclusion" that § 1172.6, subd. (e) permits a trial court to impose related enhancements when resentencing on the redesignated conviction of the target offense or underlying felony].) We believe Howard better comports with the purpose and intent of section 1172.6 and the goal of evenhanded sentencing tailored to the gravity of a defendant's conduct. Accordingly, the trial court did not err by imposing this firearm enhancement.
D. Remaining Contentions
Courtney's remaining two contentions challenge the trial court's exercise of discretion at sentencing in (1) imposing an upper base term on count one by relying on factors to which Courtney did not stipulate and which were not found true beyond a reasonable doubt by a factfinder (see § 1170, subd. (b)) and (2) declining to strike the firearm enhancement on the subordinate terms it imposed for the four redesignated offenses (see § 1385, subd. (c)(1), (2)). Because we are remanding the matter for a full resentencing, we need not address these issues that Courtney may raise on remand. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["full resentencing rule"]; People v. Campbell (2023) 98 Cal.App.5th 350, 392 [declining to address sentencing arguments appellant could raise at resentencing]; People v. Butler (2023) 89 Cal.App.5th 953, 962 ["Because we are vacating [the defendant's] sentences on count 1 and the related firearm enhancement, [he] is entitled to a full resentencing"], review granted May 31, 2023, S279633.)
DISPOSITION
The redesignated assault with a firearm convictions (§ 245, subd. (a)(2))-counts three, four, and five-are reversed, and the matter is remanded to the trial court for a full resentencing. The judgment is otherwise affirmed. Following resentencing, the trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: EARL, P. J., KRAUSE, J.