People v. Bell CA2/1 ( 2022 )

Filed 8/25/22 P. v. Bell CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B310866
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA107262)
v.
MICHAEL BELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Vacated and remanded
with directions.
Jennifer Peabody, 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, Amanda V. Lopez and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
Penal Code section 1172.6 authorizes a court in appropriate
circumstances to grant a petition to vacate a murder conviction
obtained pursuant to the natural and probable consequences
doctrine.1 If the court vacates the conviction but there were other
charges levied, the court must resentence the petitioner on those
charges. However, if the court vacates the conviction and there
were no other charges, i.e., murder was charged generically and
the target offense was not charged, the court must then
redesignate the conviction as the target offense and resentence
the petitioner for that offense.
Here, the trial court vacated Bell’s conviction for second
degree murder, which had been charged generically, but
redesignated the conviction not as the target offense, simple
assault, but as assault by means of force likely to cause great
bodily injury, which the court found was supported by the
evidence, and added enhancements which the court found were
also supported beyond a reasonable doubt. The court then
resentenced Bell accordingly.
Bell appeals, contending the court should have
redesignated his murder conviction as the target offense—simple
assault—not as a newly envisaged felony, and alternatively
contends that no substantial evidence supports a conviction for
assault by means of force likely to cause great bodily injury. He
also contends the abstract of judgment requires correction.
1 Undesignated statutory references will be to the Penal
Code. Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10).
2
We agree that the redesignation was unauthorized,
resulting in an unauthorized sentence. Accordingly, we vacate
the order and remand the matter with directions.
BACKGROUND
A. Conviction
On October 19, 1993, several Black P Stone gang members
led by Bell, who had a gun in his waistband, attacked four men,
including Kendall Pryor and Kerry Bell, at a gym. (Kerry Bell
was no relation to appellant, and will hereafter be referred to as
“Kerry” to avoid confusion.) Bell started a fight that turned in to
a free-for-all, during which Kerry was struck on the head with a
chain and fell to the ground. Pryor was beaten by several gang
members, including Bell, and was ultimately shot and killed by
Kendall Mosely, one of the assailants.
Bell was charged with murder, and the information alleged
that a principal was armed with a firearm and that Bell
personally used a firearm. On July 31, 1995, the trial court found
insufficient evidence supported the allegation that Bell
personally used a firearm, and entered a judgment of acquittal on
that allegation.
The jury was instructed on first degree premeditated
murder (CALJIC 8.20), second degree murder (CALCRIM 8.30),
direct aiding and abetting of the murder (CALJIC 3.00, 3.01), and
aiding and abetting an “assault” under the natural probable
consequence theory (CALJIC 3.02).
On August 7, 1995, a jury found Bell guilty of second
degree murder and found true the allegation that a principal was
armed with a firearm. On January 12, 1996, the court sentenced
Bell to 15 years-to-life plus one year for the firearm finding.
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We affirmed the conviction. (People v. Bell (Apr. 22, 1997,
B099896) [nonpub. opn.] (Bell).)
B. Petition
On January 2, 2019, Bell petitioned the superior court for
resentencing pursuant to former section 1170.95. The court
appointed counsel to represent him, later granted his petition to
represent himself, and issued an Order to Show Cause.
Relying on trial transcripts and our opinion in Bell, the
court found after a hearing that the prosecution failed to prove
beyond a reasonable doubt that Bell could still be convicted of
murder as a direct aider and abettor because the evidence failed
to show he harbored malice. The court noted that Bell was not
the shooter, that only five of the dozen gang members who fought
with Pryor and his friends inside the gymnasium continued the
fight into the hallway where Pryor was shot, and that no
evidence suggested Bell was in the hallway or participated in
Pryor’s beating immediately preceding his death.
The court therefore granted Bell’s petition for resentencing
and vacated his murder conviction and sentence.
C. Resentencing
At the resentencing hearing, the court observed that
because murder had been charged generically, with no other
charges, the court could select any suitable target offense for
resentencing. The court redesignated the target offense as
assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4)), found a principal had used a weapon within
the meaning of section 12022, subdivision (a), and added the
uncharged allegation that Bell personally inflicted great bodily
injury on Pryor within the meaning of section 12022.7,
subdivision (a).
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In answer to Bell’s objection that it was never alleged at
trial nor found by the jury that he personally inflicted great
bodily injury on Pryor, the resentencing court justified its great
bodily injury finding by observing that Bell had been “an aider
and abettor . . . to all of it.”
The court sentenced Bell to the upper term of four years,
plus three years for the infliction of great bodily injury and one
year for the weapon enhancement.
Bell was given credit for 9,581 actual days plus 217 days
local credit for a total of 9,798 days.
He timely appealed.
DISCUSSION
Bell contends the court erred in redesignating his murder
conviction as assault by means of force likely to produce great
bodily injury and by adding allegations that a principal was
personally armed with a firearm and Bell personally inflicted
great bodily injury on Pryor. We agree.
A. The New Sentence was Improper
1. Section 1172.6
Senate Bill No. 1437 was enacted in 2018 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).) It accomplished this
by amending section 188, subdivision (a)(3), to require that all
principals in a murder, except felony murder under section 189,
subdivision (e), must have acted with express or implied malice to
be convicted of that crime. (Stats. 2018, ch. 1015, § 2.) For a
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felony murder conviction under section 189, subdivision (e),
Senate Bill No. 1437 required that the defendant be the actual
killer, an aider and abettor to the murder who acted with intent
to kill, or a major participant in the underlying felony who acted
with reckless indifference to human life. (Stats. 2018, ch. 1015,
§ 3.)
A person convicted of murder under a felony murder or
natural and probable consequences theory may petition the
sentencing court to vacate the conviction and resentence on any
remaining counts if the person could not now be convicted of
murder under the new section 188 or 189. (§ 1172.6, subd. (a).)
As pertinent here, subdivision (d)(3) of section 1172.6
provides that “[i]f the prosecution fails to sustain its burden of
proof [in opposition to a resentencing petition], 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.” (Italics added.)
Subdivision (e) of section 1172.6 provides in pertinent part
that if “murder . . . was charged generically, and the target
offense was not charged,” the “conviction shall be redesignated as
the target offense or underlying felony for resentencing
purposes.”2
We interpret a statute de novo. (People v. Lewis (2021) 11
Cal.5th 952, 961.)
2 Subdivision (e) of section 1172.6 provides: “The
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. Any applicable statute of limitations shall not be a bar
to the court’s redesignation of the offense for this purpose.”
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2. “Target Offense”
The issue is what constitutes the “target offense” for
purposes of section 1172.6 when murder is charged generically
and there are no separate charges. Subdivision (e) of section
1172.6 neither defines target offense nor specifies the process by
which the court should identify that offense. (People v. Medina
(2009) 46 Cal.4th 913, 920.) Where the target offense is not
separately charged, “[T]he court must determine the target
offense . . . by reference . . . to the underlying felony (target
offense) identified in the instructions.” (J. Richard Couzens,
Accomplice Liability for Murder (SB 1437) (June 2020), Sec. VI,
p. 47.)
3. Analysis
a. redesignation
Here, Bell was charged only with murder; there were no
“remaining charges.” But per jury instructions and the
prosecutor’s closing arguments, the prosecution’s theory was that
Bell directly aided and abetted the murder of Pryor or aided and
abetted an “assault” under the natural and probable consequence
theory. The target offense was therefore simple assault.
Under these circumstances the proper course would have
been to vacate Bell’s conviction and firearm enhancement and
redesignate the conviction as simple assault.
Section 1172.6 contains no provision for redesignating a
generically-charged conviction as something other than the target
offense, or for appending an enhancement thereto. Therefore,
Bell’s new sentence for assault by means of force likely to produce
great bodily injury, plus firearm and personal infliction of great
bodily injury enhancements, was unlawful.
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Relying on People v. Howard (2020) 50 Cal.App.5th 727(Howard) and its progeny, Respondent argues the court properly
identified the target offense as assault by means of force likely to
produce great bodily injury. We disagree.
In Howard, an elderly woman was shot and killed during a
burglary of her home. (Howard, supra, 50 Cal.App.5th at p. 729.)
The jury convicted the defendant of first degree murder with a
felony-murder special circumstance, finding the defendant was
engaged in the commission of the crime of “burglary,” with no
person-present allegation such as would raise second-degree
burglary to burglary of the first degree (§ 190.2, subd. (a)(17)(G)).
(Howard, at p. 732.) The trial court later granted the defendant’s
former section 1170.95 resentencing petition and identified the
underlying felony as first degree residential burglary, stating
that “a second degree burglary designation would lack credibility
and common sense, and ‘would cause an injustice’ to the
prosecution and the victim.” (Howard, at p. 734.) Our colleagues
in District One held that the evidence at trial established that the
basis for Howard’s murder liability was the burglary of a
residence. Accordingly, the offense underlying his felony-murder
liability was first degree burglary. (Id. at pp. 737-738.) The
court observed that “the plain language of [former] section
1170.95, subdivision (e), contemplates a situation where—as
here—the underlying felony was not charged. It follows that
where the underlying felony is not charged, there will be no jury
instruction or verdict form.” (Id. at p. 738.) Therefore, the court
reasoned, the absence of a first degree burglary instruction and
verdict did not preclude the trial court from identifying the
underlying offense as first degree burglary because the evidence
at trial demonstrated “beyond any dispute” that the building
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Howard invaded was a residence. (Ibid.) The court “question[ed]
the practicality of requiring a trial court to ignore evidence
established at trial when designating the underlying felony
pursuant to [former] section 1170.95, subdivision (e).” (Ibid.)
Following Howard, the First District held in People v. Silva
(2021) 72 Cal.App.5th 505 (Silva) that identifying the target
offenses—which arose out of an uncharged home invasion
robbery involving five victims—as five home-invasion robberies
was proper, because “factfinding by the resentencing judge . . . is
implicit in the redesignation process.” (Id. at p. 520.)
Also following Howard, the First District held in People v.
Watson (2021) 64 Cal.App.5th 474 that identifying the target
offense—where a hotel guest was killed in his hotel room during
a robbery—as both first degree burglary and first degree robbery
was proper. (Id. at pp. 485-492.)
Respondent urges that we follow Howard, Watson and
Silva, and identify the target offense here as any offense
supported by the evidence. Bell, to the contrary, argues those
cases were wrongly decided, and urges that we disagree with
them. We need neither follow nor disagree with the cases
because they are distinguishable.
Because the Legislature has not defined “target offense,”
the courts must perforce engage on some degree of factfinding to
identify the offense underlying the original conviction. In some
cases the target offence may be identified by referencing such
factors as the location of the crime or presence of additional
victims. For example, a burglary is of the first degree when it
occurs in an occupied residence, and of the second degree when it
occurs somewhere other than in an occupied residence. (Compare
§ 460, subd. (a) [burglary of an inhabited dwelling house is
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burglary of the first degree] and subd. (b) [any other burglary is
of the second degree].) It is therefore within the mandate of
section 1172.6 to identify the target offense by determining the
context of the crime, even if that context can be found in no
charging document or jury instruction. To do so comports with
common sense and results in no injustice.
Thus in Howard, for example, the First District aptly held
that the underlying offense—identified only as “burglary” at
trial—was first rather than second-degree burglary because it
was “beyond any dispute” that the victim was killed in her own
home. (Howard, supra, 50 Cal.App.5th at p. 738.) Similarly in
Watson, it was beyond dispute that the killing occurred in the
victim’s hotel room during a robbery, and in Silva that the killing
occurred during a home invasion robbery involving five victims.
In each case the court identified the target offense by taking into
consideration the undisputable circumstances under which the
crime was committed.
Not so here. Here, the target offense was identified only as
an “assault.” To distinguish simple from aggravated assault
requires reference not to the location of the incident or number of
victims but to the quality of the attack. (Compare § 241 [assault
punishable by a six-month jail term] and § 245, subd. (a)(4)
[assault by means of force likely to produce great bodily injury
punishable by prison term of two, three or four years].)
Here, for example, to determine that Bell committed
assault by means of force likely to produce great bodily injury
would require the court to qualify the force used.
In sum, we agree with Howard, Watson and Silva that to
identify a target offense where charging documents and jury
instructions are silent sometimes requires consideration of the
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undisputable context of the crime, for example whether a
burglary occurred in an inhabited dwelling, or whether there was
more than one victim. But to extend judicial factfinding upon
resentencing to disputable issues such as the degree of force used
in an assault goes beyond the mandate of section 1172.6 to
identify the target offense.
Therefore, Bell’s redesignated sentence was unlawful, and
must be vacated.
b. enhancements
Bell argues the trial court further erred in appending a
great bodily injury to his conviction. We agree because section
1172.6 contains no provision for adding new enhancements.
Respondent urges that we follow People v. Gonzales (2021)
65 Cal.App.5th 1167, where our colleagues in Division Four of
this district approved attaching a gang allegation to a
redesignated simple battery offense. But the only issue raised in
that case was whether adding an enhancement that did not exist
when the defendant was originally convicted violated the ex post
facto clauses of the United States and California Constitutions
(U.S. Const., art. I, § 10; Cal. Const., art. I, § 9). (Gonzales, at p.
1170.) The court was not called upon to decide, and did not
decide, whether section 1172.6 authorizes such an enhancement.
Gonzales therefore does not stand for the proposition that section
1170.95 authorizes new enhancements.
Because the plain language of section 1172.6 authorizes no
new enhancement, we conclude that part of Bell’s redesignated
sentence was also unlawful, and must be vacated.
We do not reach whether substantial evidence supported
the redesignated sentence, nor whether the abstract of judgment
must be corrected.
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DISPOSITION
The trial court’s order is vacated and the matter remanded.
The court is directed to redesignate Bell’s conviction as being for
simple assault and resentence him accordingly.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
*
MORI, J.
*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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