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California Court of Appeal: § 1170.95(e) Permits Trial Courts to Redesignate More Than One Underlying Felony in Resentencing Vacated Felony-Murder Conviction

by Doug Ankney

The Court of Appeal, First Appellate District, Division Three ruled that § 1170.95(e) permits a vacated felony-murder conviction to be redesignated as more than one underlying felony for purposes of resentencing. (Note: All statutory references are to the California Penal Code.)
In 1987, Donald Alexander Watson, Timothy Garland, and Robert James planned to rob Jon Castle in his hotel room. According to Watson, he knocked on Castle’s door, and Castle let him in. Watson grabbed Castle from behind to subdue him. Garland and James then entered the room, and Garland began punching Castle. Watson saw blood shooting from Castle and let him go. Watson then saw a knife in Garland’s hand and saw Garland stabbing Castle in the throat and chest. When the three men left Castle’s room, James had Castle’s wallet.

The next day, Watson reported that he had witnessed a murder and that he had seen the person who did it. In 1988, Watson pleaded guilty to second degree murder under a theory of felony murder pursuant §§ 187(a) and 189(b). He was sentenced to 15 years to life in prison.

In 2019, Watson moved to vacate his murder conviction and obtain resentencing under § 1170.95. The trial court determined he was eligible for relief and vacated his murder conviction. The court then convicted Watson of first degree burglary and first degree robbery and sentenced him to six years on each conviction (but the court stayed the sentence for the robbery). The court credited Watson with 11,714 actual days (32 years) in custody, ordered him released, and placed him on parole. The court further ordered Watson to pay a $1,800 restitution fine pursuant to § 1202.4(b) and an additional $1,800 parole revocation restitution fine pursuant to § 1202.45.

Watson appealed, arguing that § 1170.95(e) permits the trial court to convict him of only one underlying felony after vacatur of his murder conviction; that the time he had spent in custody in excess of six years should satisfy any parole period; and that the imposed fines violate various constitutional provisions.

The Court of Appeal observed that Senate Bill No. 1437 (“SB 1437”) amended the felony-murder rule and murder under the natural and probable consequences doctrine. SB 1437 added § 1170.95 to permit defendants convicted of felony murder to file a petition with the sentencing court to have the murder conviction vacated and to be resentenced. § 1170.95(a). A petitioner is entitled to relief if: (1) the prosecution proceeded under a felony-murder theory; (2) the petitioner was convicted of first or second degree murder following trial or guilty plea; and (3) the petitioner could not be convicted of first degree murder because of changes to § 188 or § 189 made by SB 1437. § 1170.95(a)(1)-(3).

When a petitioner makes a prima facie showing that he is entitled to relief, the trial court must hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously sentenced, provided that the new sentence is not greater than the initial sentence. § 1170.95(d)(1). “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.” § 1170.95(e). 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 to parole supervision for up to three years following the completion of the sentence.” § 1170.95(g).

When construing statutes, the court’s goal is “to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.” People v. Gonzalez, 394 P.3d 1074 (Cal. 2017). The court first examines the words of the statute, “giving them their ordinary and usual meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent.” People v. Albillar, 244 P.3d 1062 (Cal. 2010). “If the legislation is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.” Coalition of Concerned Communities, Inc. v. City of Los Angeles, 101 P.3d 563 (Cal. 2004).

At issue in the instant case is the proper interpretation of the phrase “underlying felony” in § 1170.95(e). The provision does not define the term or specify the process by which courts designate the felony. In the felony-murder context, the term “underlying felony” means the offense that was the basis for felony-murder liability at trial. People v. Howard, 50 Cal.App.5th 727 (2020).

While the term “underlying felony” is in the singular and appears to support Watson’s argument that the trial court could redesignate only one felony conviction in lieu of the vacated murder conviction, Penal Code § 7 provides that when construing words and phrases throughout the Penal Code, “the singular number includes the plural, and the plural the singular,” the Court explained. Additionally, § 1170.95(e)’s use of “the” in qualifying “underlying felony” does not mandate the singular. See Minish v. Hanuman Fellowship, 214 Cal.App.4th 437 (2013).

Applying § 7 is fitting in this context because multiple qualifying felonies often formed the basis for felony-murder liability. When a killing occurs during the commission of any one of the enumerated felonies of § 189, it is sufficient to support felony-murder liability. But in some cases, a killing occurs during the perpetration of more than one of the enumerated felonies. See People v. Lewis, 22 P.3d 392 (Cal. 2001). CALCRIM No. 540A instructs juries that in order to find defendants guilty of first degree felony murder, the State must prove that the defendant had committed or attempted to commit a “felony or felonies” from § 189.

The Court explained that the reasoning of Howard also supports the conclusion that § 1170.95(e) intends to include more than one felony. The Howard Court observed that § 1170.95(d)(3) expressly limits the evidence courts may consider when determining if a petitioner is eligible for relief, but § 1170.95(e) contains no such language limiting the evidence the courts may consider when resentencing. The Howard Court concluded “[c]omparing these provisions supports our conclusion that the Legislature intended to grant the trial court flexibility when identifying the underlying felony for resentencing under subdivision (e).”

Finally, the Court reasoned that foregoing interpretation of § 1170.95(e) comports with SB 1437’s purpose. The Legislature amended the felony-murder doctrine because it “violate[d] the basic premise of individual moral culpability upon which our criminal law is based.” Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.). Limiting trial courts to resentencing on just one underlying felony when petitioners are guilty of multiple underlying felonies is incompatible with the Legislature’s intent of sentencing based on individual moral culpability, the Court stated.

The record in Watson’s case contains evidence to support a finding that he was guilty of both burglary and robbery. The Court ruled that § 1170.95(e) permits trial courts to redesignate and resentence on more than one felony after vacatur of a felony-murder conviction.

[The following discussion comes from the unpublished portion of the Court’s opinion.]

With regard to Watson’s custody credits applying to his parole, the general rule is that in ordinary situations when a defendant is originally sentenced any excess presentence credits can reduce a period of parole. People v. Wilson, 53 Cal.App.5th 42 (2020). That rule is reflected in § 2900.5(c) and 1170(d)(3). Id.

But in People v. Morales, 371 P.3d 592 (Cal. 2016), the issue in question was interpretation of a similar resentencing provision in Proposition 47. The Morales Court concluded that credit for time previously served does not reduce the parole period imposed at resentencing under Proposition 47. The Morales Court observed that although “section 2900.5 states two things ... (1) the person is entitled to credit for time served, and (2) the credit can reduce or eliminate the period of parole,” the Proposition 47 statute “instead ... states the person is to receive credit for time served and is subject to parole.” The Morales Court explained that Proposition 47 thus establishes a “seemingly mandatory parole requirement (subject to the court’s discretion)....”

Based on Morales, the Wilson Court concluded that the words “credit for time served” found in § 1170.95(g) does not require a court to apply excess credit against a person’s parole supervision period. The same conclusion was reached in People v. Lamoureux, 57 Cal.App.5th 136 (2020). The Court in the instant case agreed and declared: “we see no basis to set aside the trial court’s refusal to apply excess custody credits to eliminate the period of parole imposed at the resentencing under section 1170.95.” However, the Court determined that the trial court erred when it failed to exercise its discretion in setting a period of parole when it resentenced Watson. See People v. Belmontes, 667 P.2d 686 (Cal. 1983).

Regarding the restitution fine imposed under § 1202.4, the Court held the fine was satisfied by the excess days Watson spent in custody. § 2900.5. At the time Watson was originally sentenced, credits of $30 per day were applied to all fines for each day beyond his sentence that a defendant spent in custody. People v. Morris, 242 Cal.App.4th 94 (2015). After subtracting Watson’s six-year sentence from the 32 years he served, the excess number of days he was in custody were beyond sufficient to satisfy the fine, according to the Court.

Concerning imposition of the parole revocation restitution fine, the Court ruled that it violates the ex post facto clauses of the U.S. and California Constitutions. U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9. Watson committed his offenses in 1987. Section 1202.45 that authorizes the fine did not go into effect until 1995. Even though Watson failed to object to the fine at sentencing, it nonetheless must be stricken because the fine is “unauthorized” in that “it could not be imposed under any circumstance” in this case. See People v. Scott, 885 P.2d 1040 (Cal. 1994).

Accordingly, the Court remanded to the trial court for the limited purpose of determining the duration of Watson’s parole period in accordance with § 1170.95(g); modified the judgment to reflect that the § 1202.45 parole revocation restitution fine is stricken; ruled the § 1202.4 restitution fine is satisfied by Watson’s excess custody credits; and affirmed as modified. See: People v. Watson, 2021 Cal. App. LEXIS 420 (2021). 

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Related legal cases

People v. Watson

Minish v. Hanuman Fellowship

People v. Lewis

People v. Scott

People v. Belmontes



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