Opinion
B328301
07-10-2024
THE PEOPLE, Plaintiff and Respondent, v. BOBBY RAY SAVAGE, Defendant and Appellant.
Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. A146871-03, Michael V. Jesic, Judge. Reversed and remanded with directions.
Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General for Plaintiff and Respondent.
STONE, J.
Bobby Ray Savage, convicted in 1984 of first degree felony murder, mayhem, and assault with a caustic substance, has filed his third appeal regarding his petition for resentencing under Penal Code section 1172.6 (former section 1170.95). After his second appeal, we reversed the superior court's order denying Savage's petition. (People v. Savage (Sept. 20, 2022, B313606) [nonpub. opn.].) We remanded with directions to vacate Savage's first degree felony murder conviction and resentence him. The superior court then resentenced Savage on his remaining charges of mayhem and assault with a caustic substance. The court also redesignated Savage's murder conviction as aggravated mayhem, despite the fact that Savage was not charged with or convicted of this offense.
All undesignated statutory references are to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
Because a jury convicted Savage of mayhem, the "underlying felony" to the felony-murder charge, Savage contends the court was not authorized to redesignate his murder conviction as aggravated mayhem, an offense that was not charged. The Attorney General concedes the superior court erred. We agree that under section 1172.6, subdivisions (d)(3) and (e), the court was limited to resentencing Savage on the remaining counts of mayhem and assault with a caustic substance, and thus we reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Fatal Attack on Patricia Worrell
The evidence presented at the hearing on Savage's petition for resentencing demonstrates the following salient facts, as originally set forth in our decision in People v. Savage, supra, B313606: Richard Gilman and Patricia Worrell had an acrimonious breakup. In late July 1980, Gilman, after telling a prostitute in Las Vegas that he was looking for a "hit man" to "mess up" a woman in Los Angeles, met and hired Savage, the prostitute's pimp, to attack and disfigure Worrell. Savage eventually enlisted Ricardo Robinson to do the job with him. Robinson contacted Gilman, and Gilman agreed to pay Robinson $1,000 to throw lye or acid on Worrell.
On August 14, 1980, Savage and Robinson drove to Worrell's home from Las Vegas. They brought with them a glass jar in which they had mixed the contents of a can of drain cleaner (later determined to contain sodium hydroxide or lye) and water. When they arrived, Savage told Robinson he would turn on the headlights of the car parked in the driveway, which Robinson could then use as a ruse to get Worrell to open the front door. Savage handed Robinson the jar with the caustic liquid. As planned, Worrell opened the door in response to being told her car's lights had been left on. Robinson threw the liquid in Worrell's face. Robinson gave Savage the empty jar, and the two men drove away from the scene of the crime.
Immediately after the attack Worrell was rushed to the hospital, suffering from burns to her face and upper body. In addition, Worrell ingested some of the caustic liquid, which burned through her esophagus, causing a massive arterial hemorrhage. She died 10 days after being hospitalized.
Worrell's treating physician, Dr. Charles Lincoln, testified at Savage's trial that a patient who has ingested a caustic substance has about a one percent mortality rate and that throwing lye in someone's face is not likely to cause death.
B. Savage's Trial and Sentence
In 1982, the People charged Savage with four counts: murder for financial gain and torture (count 1, §§ 187, 190.2, subds. (a)(1) &(a)(18)), mayhem (count 2, § 203), assault with a caustic substance (count 3, § 244), and conspiracy to commit mayhem and assault with a caustic substance (count 4, §§ 182, 203, 244). As to all counts, the People also alleged that Savage inflicted great bodily injury (§§ 1203.075, 12022.7).
At trial, the court instructed the jury on only one theory of murder: first degree felony murder with mayhem as the underlying felony. The jury convicted Savage on all counts except for conspiracy. On that count, the jury deadlocked, and the trial court declared a mistrial. The jury found true as to the offenses of mayhem and assault with a caustic substance that Savage personally inflicted great bodily injury upon Worrell within the meaning of section 12022.7. The trial court sentenced Savage to an indeterminate state prison term of 25 years to life for first degree felony murder, dismissed the conspiracy charge, and stayed the sentences on the remaining counts and enhancements.
C. Savage's Section 1172.6 Petition Proceedings
In 2018, Savage filed a section 1172.6 petition, contending he was entitled to resentencing because he could not now be convicted of felony murder because of changes wrought to sections 188 and 189 by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437). As relevant here, SB 1437 limits the felony- murder exception to the malice requirement for murder, permitting a murder conviction for a death that occurred during the commission of certain serious felonies only when the defendant was the actual killer, aided or abetted the underlying felony with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. SB 1437 also authorized, through section 1172.6, an individual convicted of felony murder to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of SB 1437's changes to the definition of the crime.
After the superior court initially denied his petition without an evidentiary hearing, we determined that Savage had established a prima facie case for resentencing under section 1172.6. (People v. Savage (Mar. 12, 2021, B304404) [nonpub. opn.].) We reversed the court's order and remanded with directions to issue an order to show cause and to proceed consistent with section 1172.6, subdivision (d), which provides that the court shall hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner. (§ 1172.6, subd. (d)(1).)
After the superior court held an evidentiary hearing and again denied the petition on remand, we held in Savage's second appeal that there was insufficient evidence of felony murder and reversed the superior court's denial of Savage's petition. (People v. Savage, supra, B313606.) We remanded with directions to vacate Savage's murder conviction and resentence him. (Ibid.)
At the resentencing hearing, the prosecution asked the superior court to redesignate Savage's murder conviction as aggravated mayhem (§ 205), a charge that had not been alleged or tried. The prosecution argued that section 1172.6, subdivision (e), gave the court the authority to do so because aggravated mayhem was an underlying felony to the felony murder "supported by the record of conviction, even if not previously pled and proved."
The offense of aggravated mayhem was added to the Penal Code by the legislature in 1987, several years after Savage's trial. (§ 205; People v. Park (2003) 112 Cal.App.4th 61, 64.) "A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body." (§ 205.) Mayhem is a general intent crime, but aggravated mayhem requires the specific intent to cause the maiming injury. (Park, at p. 64.) While mayhem is punishable by two, four, or eight years in state prison (§ 204), aggravated mayhem is punishable by life imprisonment with the possibility of parole (§ 205).
In response, the defense argued that, based on the plain language of section 1172.6, if a defendant was charged with an "underlying felony" in addition to the murder charge, and the murder charge is vacated under section 1172.6, the superior court is only allowed to resentence the defendant on the "remaining charges." Because Savage was charged with mayhem as the underlying felony, but was not charged with aggravated mayhem, the defense argued the court could only resentence Savage on his remaining charges of mayhem and assault with a caustic substance.
The court held an extensive section 1172.6 resentencing hearing. Before ruling, the court acknowledged the matter was a "tough call because the law has changed so much in this area" and there was limited relevant case law. Ultimately, the court redesignated Savage's murder conviction as aggravated mayhem, adding a fifth count. The court also resentenced Savage on the remaining counts of mayhem and assault with a caustic substance but stayed the sentences on those counts under section 654.
DISCUSSION
Savage contends, and the Attorney General concedes, that upon vacating Savage's murder conviction, the superior court was only permitted to resentence him on the remaining counts of mayhem and assault with a caustic substance, and not on an additional, uncharged count of aggravated mayhem. Both Savage and the Attorney General rely on the Fifth District's recent decision in People v. Fouse (2024) 98 Cal.App.5th 1131 (Fouse) to argue the superior court erred in redesignating Savage's murder conviction to aggravated mayhem. We find the reasoning in Fouse persuasive and agree with the parties that reversal is required.
A. Resentencing Under Section 1172.6
If a petitioner is entitled to relief under section 1172.6, the petitioner's murder, attempted murder, or manslaughter conviction must be vacated, and the petitioner must be resentenced in accordance with the statute. (§ 1172.6, subds. (a), (d)(3), (e).) Whether the superior court was permitted to redesignate the murder conviction as the uncharged offense of aggravated mayhem turns on the interpretation of subdivisions (d)(3) and (e) of section 1172.6. Under subdivision (d)(3), if the petitioner is entitled to relief, the conviction "shall be vacated and the petitioner shall be resentenced on the remaining charges." Under subdivision (e)," '[t]he petitioner's 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.'" Although subdivision (e) does not define "target offense or underlying felony," "courts have interpreted this phrase to mean 'the "offense" upon which liability was based for either the natural and probable consequences doctrine or the felony-murder rule.'" (Fouse, supra, 98 Cal.App.5th at p. 1144, quoting People v. Arellano (2022) 86 Cal.App.5th 418, 435 (review granted Mar. 15, 2023, S277962); accord, People v. Howard (2021) 50 Cal.App.5th 727, 737.)
"The proper interpretation of a statute is a question of law we review de novo." (People v. Lewis (2021) 11 Cal.5th 952, 961.) As in any case involving statutory interpretation, our fundamental task in interpreting section 1172.6 is to determine the Legislature's intent to effectuate the law's purpose. (Lewis, at p. 961.) We start by analyzing the statute's words, using plain and commonsense meanings. (Ibid.) If the language in the statute is clear, we stop there. (People v. Scott (2014) 58 Cal.4th 1415, 1421.) We must harmonize the various parts of section 1172.6 by considering its particular clauses in the context of the statutory framework as a whole. (See Lewis, at p. 961.)
B. People v. Fouse
In Fouse, the defendant acted as the getaway driver for a violent home invasion robbery with multiple victims that culminated in the defendant's accomplices firing shots at pursuing police officers from the fleeing vehicle. (Fouse, supra, 98 Cal.App.5th at pp. 1137, 1140.) A jury convicted the defendant of two counts of attempted murder of a peace officer, three counts of first degree robbery, one count of assault likely to cause great bodily injury, and one count of conspiracy to commit first degree robbery. (Id. at p. 1133.) The jury was instructed that in order to find the defendant guilty of the attempted murders, it had to find the crime of robbery was committed. (Id. at p. 1139.)
In 2022, the defendant filed a petition for resentencing pursuant to Penal Code section 1172.6, which the court granted, and, accordingly, the court vacated the defendant's attempted murder convictions. (Fouse, supra, 98 Cal.App.5th at p. 1139.) At the resentencing hearing, the court redesignated the two attempted murder counts as two counts of assault with a firearm on a peace officer, to align with the court's understanding of the factual record at trial. (Id. at pp. 1141-1142.) The court noted that the jury had been provided instructions allowing it to find the defendant not guilty of attempted murder and to consider the assault with a firearm charge. (Id. at p. 1142.) The court also added an additional count for felony evading a police officer under Vehicle Code section 2800.2, an additional count the court believed was supported by the evidence. (Ibid.)
On appeal, the defendant contended the court erred in redesignating the attempted murder convictions as convictions for assaults on peace officers and evading the police, because the jury convicted the defendant of the robberies that were alleged to be the felonies underlying the attempted murder charges. (Fouse, supra, 98 Cal.App.5th at p. 1144.) The Attorney General conceded that the underlying felonies were robberies and that the defendant was also charged with and convicted on three counts of robbery. (Ibid.) However, the Attorney General argued the defendant's culpability exceeded those robberies, as the defendant had not only acted as the getaway driver from the robbery but also led the police on a dangerous high-speed chase during which her accomplices fired a weapon at two officers. The Attorney General argued that the court's redesignation of the attempted murder counts as assaults on a peace officer with a firearm and its addition of the felony evasion count fulfilled the purpose of section 1172.6 to ensure that the defendant was punished commensurate with her individual criminal culpability. (Fouse, at p. 1145.)
The Fifth District sided with the defense: "In reviewing the plain language of section 1172.6, subdivisions (d)(3) and (e), we agree with defendant's first contention-because it is undisputed the target offenses were charged (and defendant was convicted thereof), the statute required the court to resentence defendant on the remaining charges. It did not permit the court to redesignate the attempted murder convictions to assaults with a firearm on a peace officer and felony evading a police officer. That is, section 1172.6, subdivision (d)(3) provides that when an attempted murder conviction is no longer valid under the amended law, the prior conviction 'shall be vacated and the petitioner shall be resentenced on the remaining charges.' (§ 1172.6, subd. (d)(3).) Relevant here, '[t]he petitioner's 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.) But, because here the target offenses were charged, section 1172.6, subdivision (e)'s redesignation procedure did not apply. Indeed, to hold otherwise would avoid the plain meaning of the language of the statute and render meaningless the conditional language of section 1172.6, subdivision (e). [¶] Said differently, section 1172.6 does not provide a procedure by which the court could redesignate the attempted murder convictions to other offenses in this case because the target offenses were charged (and defendant was convicted thereof). Rather, it expressly directs the trial court to vacate the attempted murder convictions and sentence the defendant 'on the remaining charges.' Thus, the court exceeded its statutory authority by redesignating the attempted murder convictions as assaults with a firearm on a peace officer and felony evading of a police officer." (Fouse, supra, 98 Cal.App.5th at pp. 1145-1146.)
The appellate court found the superior court had "erred in failing to simply vacate the attempted murder convictions and resentence defendant on the remaining charges as required by the plain language of section 1172.6, subdivision (d)." (Fouse, supra, 98 Cal.App.5th at p. 1149.) The appellate court thus reversed the superior court's resentencing order and remanded for resentencing. (Ibid.)
C. The Court Was Restricted to Resentencing on the Remaining Charges Because the Underlying Felony- Mayhem-Was Charged
We agree with the Fifth District in Fouse that section 1172.6, subdivision (e)'s resentencing procedure-whereby the "conviction shall be redesignated as the target offense or underlying felony"-only applies "if . . . murder or attempted murder was charged generically, and the target offense was not charged." (§ 1172.6, subd. (e), italics added; see Fouse, supra, 98 Cal.App.5th at p. 1146.) Only if the prosecution did not charge a target offense or underlying felony along with the murder or attempted murder charges is the court permitted to redesignate the murder or attempted murder conviction as an uncharged target offense or underlying felony. (§ 1172.6, subd. (e); Fouse, at p. 1146; see People v. Silva (2021) 72 Cal.App.5th 505, 510, 512, 517 [affirming court's redesignation of murder convictions as robberies pursuant to § 1170.95, subd. (e), where defendant was charged only with murder and not the underlying robbery offenses]; People v. Howard, supra, 50 Cal.App.5th at p. 737 [noting § 1172.6, subd. (e), "provides that where the murder conviction was charged generically and the underlying felony was not charged, the trial court redesignates the 'underlying felony for resentencing purposes' "].) However, if the target offense or underlying felony was charged, the statute expressly directs the court to resentence the petitioner only on the remaining previously charged offense. (§ 1172.6, subd. (d)(3); Fouse, at p. 1146.)
Based on this plain-language reading of the statute, the trial court here should not have redesignated the vacated murder conviction as aggravated mayhem, an uncharged offense. It is undisputed that the jury was instructed that mayhem was the underlying felony to the charge of felony murder. The People also separately charged Savage with this underlying felony and he was convicted on this count. Because Savage was charged with an underlying felony, the court was required to sentence Savage solely "on the remaining charges" (§ 1172.6, subd. (d)(3)), which are mayhem and assault with a caustic substance.
DISPOSITION
The court's postjudgment order is reversed. The matter is remanded to the superior court with directions to resentence Savage on the counts of mayhem and assault with a caustic substance, in accordance with section 1172.6, subdivision (d)(3).
We concur: SEGAL, Acting P. J., FEUER, J.