People v. Smith CA2/5 ( 2022 )

Filed 9/27/22 P. v. Smith CA2/5
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B311459
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A634331)
v.
ORDER MODIFYING OPINION
FREDERICK A. SMITH, AND DENYING PETITION
FOR REHEARING
Defendant and Appellant. [There is no change in judgment]
BY THE COURT:
It is ordered that the opinion filed herein on September 2,
2022, is modified as follows:
1. On page 2, second paragraph, line 8, after the word “and”
add “/or” so it now reads “and/or”.
2. On page 5, second paragraph, lines 1 and 5, delete “The
prosecutor” and replace with “Defense counsel”.
3. On page 11, last paragraph, line 7, after the word “spent”
insert the word “almost” so it reads, “spent almost”.
4. On page 14, first full paragraph, after the complete citation
to People v. Blackburn, after the closed parentheses, add as
footnote 4 the following footnote, which will require
renumbering of all the subsequent footnotes:
4 We find no ambiguity in the statute, thus dispensing
with one of appellant’s contentions on appeal. (People v.
Howard (2020) 50 Cal.App.5th 727, 737 (Howard).)
5. On page 18, replace the full citation for People v. Howard
with: (Howard, supra, 50 Cal.App.5th at p. 742.)
6. On page 18, renumbered footnote 6, line 5, before the
fragment “be absurd” delete the word “not”.
7. On page 28, first full paragraph, line 2, after the word
“and” add “/or” so it now reads “and/or”.
There is no change in judgment.
The petition for rehearing is denied.
RUBIN, P. J. BAKER, J. MOOR, J.
2
Filed 9/2/22 P. v. Smith CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B311459
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A634331)
v.
FREDERICK A. SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Clay Jacke, II, Judge. Affirmed as modified.
William L. Heyman for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________
In 1986, appellant pleaded guilty to murder and was
sentenced to 15 years to life in prison. In 2019, appellant (still
incarcerated) filed a petition for resentencing under former Penal
Code section 1170.95 (now § 1172.6).1 The trial court vacated
appellant’s murder conviction and resentenced him to one year
and four months for attempted robbery (crediting him with time
served), plus a two-year parole term. The court imposed a $300
restitution fine, and a stayed $300 parole revocation fine.
Appealing from the resentencing order, appellant argues
the court violated section 1172.6 and his constitutional rights by
imposing a sentence for a crime that was dismissed as a part of a
plea bargain and never found true by a jury. He also asserts
insufficient evidence supported the attempted robbery conviction,
and that imposition of the parole term constituted an abuse of
discretion and violated his constitutional right to be free from
cruel and unusual punishment. Finally, he contends imposition
of a parole revocation fine violated ex post facto principles. We
strike the parole revocation fine but otherwise affirm the trial
court’s resentencing order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Murder
On the night of November 6, 1985, four men (one of whom
appellant knew was carrying a gun) and appellant agreed to rob
someone “to make some fast money.” The five men drove around
in a station wagon for five to ten minutes looking for a victim
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). We refer to the statute by its current numeration.
All further undesignated statutory references are to the
Penal Code.
2
before they spotted Stephanie Marry, who was sitting alone in a
vehicle in front of a liquor store. Marry’s friends, Blade Mason
and Richie Collins, were inside the liquor store. The five men
parked their station wagon, and two of them walked over to and
entered the vehicle in which Marry was sitting. At the time,
Marry, who was waiting for Mason and Collins to return, was
alone in the car, which was owned by Collins. The two suspects
demanded the car key from Marry, who did not have one. When
Collins and Mason left the liquor store, the two suspects exited
Collins’s vehicle, taking Mason’s radio and Collins’s coat.
Collins and the suspects argued; one of the suspects
asserted their gang affiliation. Meanwhile, appellant, who was
not part of the initial altercation, exited the station wagon and
walked toward Collins’s car because he saw that Mason was
wearing a hat that appellant wanted. Appellant approached
Mason and tried to take his hat, but failed.
One of the suspects (not appellant) then shot Collins. The
suspects ran to the station wagon. A police patrol vehicle stopped
the station wagon before it could escape the crime scene. Collins
died from the gunshot wound.
2. The Preliminary Hearing
At appellant’s December 5, 1985 preliminary hearing,
Marry and the police detective who interviewed appellant
testified. Following their testimony, defense counsel
unsuccessfully moved to dismiss the charges.2
a. Marry’s Testimony
Marry testified that on November 6, 1985, at 10:15 p.m.,
she was sitting in Collins’s car outside a liquor store, where
Collins and Mason were shopping. Two men got out of a station
2 The record on appeal does not contain the complaint.
3
wagon, approached Collins’s car, and got in the car with Marry.
Both men demanded the car key, and Marry told them she did
not have it.
When Collins and Mason came out of the liquor store, one
of the men took Mason’s radio from the backseat and then exited
Collins’s car. The other man, also getting out of the car, took
Collins’s coat and put it on. Five to ten minutes lapsed from the
time the men approached and got into Collins’s car to the time
they exited the vehicle.
Marry stated that the first man asked Collins three times if
the vehicle belonged to him. Collins, who was standing near the
driver’s side, repeatedly responded “yes.” The second man went
on top of the vehicle on the passenger side and yelled, “ ‘This is
bounty hunters here, Blood.’ ” The second man then went to the
driver’s side of the vehicle where Collins stood. Collins told the
second man, “ ‘All right, man, all right, man. I am from the
neighborhood. I am from the neighborhood. I don’t gang bang. I
don’t gang bang.’ ”
Marry testified that during the altercation, Collins kept
trying to get his coat back from the man who had taken it, and
Mason told Collins to let the guy have it. Marry attempted to get
out of Collins’s car on the passenger side, but the first man (who
had the gun) told her to get back inside. Marry then attempted
to exit on the driver’s side, where Collins was standing, and
Collins told her to get back in the car. When Marry looked again
to the passenger side, she watched the first man take out the gun
and shoot Collins. Collins ran and collapsed in front of the liquor
store. Marry observed the men flee to the station wagon. Before
they could get away, they were caught by police.
4
Marry also testified that before the shooting occurred, just
after the two men got out of Collins’s car, appellant walked over
from the station wagon and started talking to Mason. Appellant
talked to Mason at the same time that the other two men were
talking to Collins and Mason. Marry testified that she could not
hear what appellant said, but appellant’s conversation with
Mason appeared to be “normal.” The conversation between
appellant and Mason lasted about five minutes, and ended when
the other man (Melvin Smith, Sr.) shot Collins and appellant fled
to the station wagon. Marry stated that the altercation between
the two men and Collins and Mason was separate from the
conversation between appellant and Mason.
The prosecutor asked, “In your opinion – I am going to ask
you prior to the shot you heard go off – did you believe that this
person [appellant] was attempting to rob [Mason] from what you
could see?” Marry answered: “No. He just wanted his hat, tried
to take his hat.” The prosecutor then asked, “How do you know
he was trying to take his hat?” Marry responded, “[Mason] told
me.” Defense counsel then moved to strike Marry’s statements as
hearsay, and the trial court struck her answers to the line of
questioning.
b. The Detective’s Testimony
Detective Michael McDonagh testified that he was assigned
to investigate the November 6, 1985 robbery and homicide. The
detective stated appellant was arrested about two minutes after
the shooting, and then transported to the police station. At
11:45 p.m., the detective spoke to appellant for four to five
minutes at the station and then the detective went to the crime
scene. Hours later, at 4:30 a.m., the detective interviewed
appellant; the interrogation was recorded.
5
The detective advised appellant of his constitutional rights,
including his right to remain silent and to have an attorney
present. Appellant acknowledged he understood his rights, and
agreed to speak to the detective. In the taped conversation,
appellant recapitulated what he had told the detective hours
earlier during their first discussion.
The 14-minute tape recording of the interview was
admitted into evidence and played at appellant’s preliminary
hearing. The tape recording apparently no longer exists in
electronic or transcript form. The detective did not testify about
the contents of the recording at the preliminary hearing.
c. Argument by Counsel
At the close of the preliminary hearing, appellant’s counsel
moved to dismiss the robbery and murder charges. Counsel
argued there was insufficient evidence to support the charges
because appellant’s interaction with Mason was separate from
the robbery and murder: “It appears . . . that what was going on
. . . is that two different activities were happening. Apparently
one group decided they would do one thing. This man [appellant]
was in the car. Apparently [appellant] looks up and sees a hat.
[Appellant] eventually joins the first group who apparently had
been over at that location, that location being the area of the car,
for a period of time prior to his arrival. [¶] Even when
[appellant] arrived, if the witness is to be believed, he did not
take part in what the other people were doing. But by
[appellant’s] taped testimony it appears he decided he wanted a
hat. And while he was in the process of taking that hat from
another person, Mr. Collins was shot.”
In response, the prosecutor asserted appellant was liable
under an aiding and abetting theory, or on a conspiracy theory
6
because he had agreed to participate in the robbery and knew one
of the men had a gun.
The magistrate denied the motion to dismiss and held
appellant to answer for murder, two robberies, attempted
robbery, and, on all counts, a principal armed with a firearm
enhancement.
3. The Information and Appellant’s Plea
On December 19, 1985, the district attorney filed an
information charging appellant with the murder and robbery of
Collins, the robbery of Mason, and the attempted robbery of
Marry. As to all four counts, the district attorney alleged that a
principal was armed with a firearm in the commission and
attempted commission of the offenses.
On February 26, 1986, appellant pled guilty to murder and
admitted the principal firearm allegation. On April 14, 1986, the
trial court found the murder to be in the second degree and
sentenced appellant to 15 years to life in state prison. The court
imposed and stayed a one-year term for the principal firearm
enhancement. The court dismissed the remaining counts.
4. Section 1172.6 Petition and Vacatur of Appellant’s
Murder Conviction
Some 32 years later, on January 3, 2019, appellant (still
incarcerated for the Collins murder) filed a section 1172.6
petition for resentencing. On January 31, 2019, the superior
court asked the Office of the District Attorney and/or the Office of
the Attorney General to file an informal letter response.
On July 29, 2019, the district attorney filed her response.
The prosecutor argued, among other things, that appellant was
ineligible for relief because he failed to make the requisite prima
facie showing and, even under current law, he would be guilty of
7
murder both as a major participant in the underlying felony who
acted with reckless indifference to life and under the theory of
implied malice. The district attorney’s response included three
exhibits: (1) trial court documents related to appellant’s plea and
sentencing; (2) the preliminary hearing transcripts of both
appellant and codefendant Melvin Smith, Jr.; and (3) the police
report from the murder/robbery.3
The police report included a description of appellant’s
statements to police: “Suspect Fredrick Smith was admonished
of his rights which he acknowledged and waived. The suspect
stated that he was at suspect Ronald Smith’s house when the
other three suspects arrived in the station wagon. Melvin Jr and
Melvin Sr exit the vehicle and enter the residence. The suspect
got into the vehicle with Subj Anderson who showed him the gun
which he examined and determined to be a real gun. A few
minutes later the other three suspects get into the vehicle. All
five of the suspects agree to rob someone to make some fast
money. Smith stated that they drove around for five to ten
minutes looking for someone to rob and talking about robbing
people. He stated that they selected a likely victim but changed
their mind for some reason. ·Smith stated that when they saw
victim Marry alone in her vehicle they decided to rob her. They
parked ahead of the victim’s vehicle and Melvin Sr, Melvin Jr
and Anderson approached the victim. He stated that when he
saw victim Mason returning to the vehicle he saw the victim’s hat
and decided that he wanted it. He stated that he approached the
3 In addition to appellant Frederick Smith and Melvin
Smith, Jr., three other men were arrested: Melvin Smith, Sr.,
Ronald Smith, and Arvarteman Anderson. Melvin Smith, Sr.
was the shooter.
8
victim and tried to take the hat but the victim backed away. He
stated that he saw Smith Sr pull the gun out and shoot the
victim.”
On August 20, 2019, after reviewing appellant’s petition
and the district attorney’s response, the trial court ordered the
district attorney to show cause why the relief requested in the
petition should not be granted, set a hearing date, and appointed
counsel for appellant.
On February 10, 2020, appellant filed a reply. The reply
attached as exhibits the detective’s police report of the
murder/robbery (quoted in part above), and appellant’s
preliminary hearing transcript. Appellant argued there was no
evidence of implied malice or intent to kill.
On July 30, and August 28, 2020, the petition was heard
and argued. The court concluded the district attorney failed to
meet its burden to prove beyond a reasonable doubt that
appellant was ineligible for resentencing. Relying on the
preliminary hearing transcripts and the police report, the court
concluded appellant had been prosecuted under the felony
murder rule, and under current law, could not be convicted of
murder.
When the district attorney requested the court to clarify
how it relied on its exhibits, the court stated it had examined and
relied on the transcripts and police report. The court elaborated
that to the extent the police reports included statements by all
five suspects, the court placed less weight on the police report
than the information in the preliminary hearing transcripts.
Defense counsel argued that the legislative history of
section 1172.6 indicated police reports were evidence, but the
trial court was not obligated to accept the content of the reports
9
as true and the court was entitled to determine what weight to
give to such evidence. Defense counsel commented, “We all know
that police reports have some value. The value that one gives to
them is subject to that one’s interpretation.” The prosecution
pointed out that the police report was evidence that had been
presented to the court, which appellant did not contest. The trial
court explained, “[B]ecause the preliminary hearing wouldn’t
disclose everything that both sides argued were the facts . . . it
had to be gleaned from the police reports.”
Counsel then made the argument that forms the crux of
this appeal: Because appellant had pled guilty to murder and the
remaining charged counts had been dismissed, there were no
other counts on which to resentence appellant under section
1172.6. Defense counsel requested the trial court vacate
appellant’s murder conviction and immediately release him from
prison. Counsel claimed the trial court could not resentence
appellant on crimes for which no jury had previously found him
guilty or which appellant had not admitted.
The district attorney argued that if the trial court vacated
appellant’s murder conviction, then it should resentence
appellant to robbery or attempted robbery, and the principal
armed with a firearm enhancement, as charged in the
information.
After hearing argument from both parties, the trial court
vacated appellant’s murder conviction, released appellant on his
own recognizance, and calendared the matter for resentencing.
5. Resentencing Appellant for Attempted Robbery
On November 5, 2020, the district attorney filed a
sentencing motion, requesting that appellant be resentenced on
two counts of robbery and one count of attempted robbery, plus
10
the armed principal enhancement. The motion requested three
years of parole. In support of the parole request, the district
attorney attached transcripts from appellant’s parole hearings.
On January 8, 2021, the court heard argument from
appellant and the district attorney. Appellant asserted he could
not be resentenced on any counts under section 1172.6
subdivision (d)(1) or (e) because those parts of the statute that
discussed resentencing did not address a situation where the
remaining counts had been dismissed and the target offense was
already charged. Defense counsel also argued there was
insufficient evidence to support a robbery or attempted robbery
conviction. The district attorney argued defense counsel’s
construction of section 1172.6 was illogical and would result in
the inability to resentence defendants who had plea deals.
After indicating that it was uncomfortable sentencing
appellant to a charge that was alleged but not proven to a jury or
admitted, the court tentatively ruled appellant would be
resentenced to attempted robbery. The court stated that its
ruling was consistent with its factual finding that appellant’s
actions in attempting to take Mason’s hat were separate from the
murder and robberies perpetrated by the other men.
The trial court tentatively ruled that appellant would be
subject to two years of parole. The court’s ruling was based on its
review of the parole hearing transcripts submitted by the district
attorney. The court found appellant had made tremendous
rehabilitative progress in prison, but he was currently 53 years
old, and had been just 18 years old when convicted. As appellant
had spent his entire adult life in prison, he would benefit from
the guidance provided by parole.
11
Defense counsel initially asserted appellant would be
harassed on parole and that parole was contrary to the district
attorney’s current sentencing policies. Counsel then argued
parole should be stayed pending appeal to resolve the underlying
question of whether the trial court erred by resentencing
appellant to attempted robbery. The court ordered the parties to
meet and confer and continued the matter to resolve whether
parole should be stayed pending appeal.
On January 22, 2021, the court heard more argument
regarding parole and heard defense counsel read a letter from
appellant’s wife, a former prison guard. Defense counsel asked
the court to stay the imposition of parole, because appellant had
no place to live in Los Angeles where he would likely be paroled,
appellant wished to live in Kings County at his wife’s home, the
hardships upon him with having parole imposed far outweighed
any societal danger, his wife was a prison guard and law abiding
citizen, and defense counsel did not believe appellant was at risk
of recidivism as long as he was living with his wife as a term or
condition of his release. The district attorney responded that the
parole process is intended to help appellant reintegrate into
society after he has been away so long, and that parole was
prudent for the safety of the community. The district attorney
proposed transferring appellant’s parole to King’s County.
The court reiterated its concern: “because [appellant] has
been in prison so long and he is just coming out – I mean, he
went out a boy, and he’s coming out as – . . . a man in his 50’s. . . .
My concern is that he may, while out and about, run into some
stressors. . . . So I do think he needs supervision.” The court
asked all counsel to research whether appellant could reside in
12
Kings County when placed on parole out of the Los Angeles
Superior Court.
On March 5, 2021, the parties informed the court they had
resolved the parole residence issue and that appellant would be
permitted to live in Kings County. The trial court found there
was an attempted robbery, denied probation, and sentenced
appellant to the lower term of 16 months in state prison for
attempted robbery, against which appellant had credit for time
served (35 years). The trial court imposed a parole term of two
years and a $300 parole revocation fine, which it ordered stayed
unless parole was revoked.
Appellant filed a timely notice of appeal.
DISCUSSION
Appellant argues the court violated section 1172.6 and his
constitutional rights by redesignating his murder conviction to
attempted robbery since both the attempted robbery and the two
robbery charges were dismissed as a part of his guilty plea and
not found true by a jury. He also asserts insufficient evidence
supported the attempted robbery conviction. Appellant also
contends the court abused its discretion and violated his
constitutional right to be free from cruel and unusual
punishment by placing him on parole. Lastly, appellant asserts
imposition of a parole revocation fine violated the ex post facto
clause. We address appellant’s redesignation arguments first,
followed by his contentions regarding parole and the parole
revocation fine.
1. The Court Did Not Err in Redesignating the Murder
Conviction as Attempted Robbery
Appellant asserts he cannot be resentenced to another
crime because of the language of section 1172.6. He also
13
contends that in redesignating the murder conviction as
attempted robbery, the court violated his rights to trial by jury
and due process. Appellant’s claims require us to interpret the
statute and evaluate any constitutional conflicts.
“We review de novo questions of statutory construction.
[Citation.] In doing so, ‘ “our fundamental task is ‘to ascertain
the intent of the lawmakers so as to effectuate the purpose of the
statute.’ ” ’ [Citation.] We begin with the text, ‘giv[ing] the words
their usual and ordinary meaning [citation], while construing
them in light of the statute as a whole and the statute’s purpose
[citation].’ [Citation.] ‘If no ambiguity appears in the statutory
language, we presume that the Legislature meant what it said,
and the plain meaning of the statute controls.’ ” (People v.
Blackburn (2015) 61 Cal.4th 1113, 1123.) “ ‘ “The meaning of a
statute may not be determined from a single word or sentence;
the words must be construed in context, and provisions relating
to the same subject matter must be harmonized to the extent
possible. [Citation.] Literal construction should not prevail if it
is contrary to the legislative intent apparent in the [statute].” ’ ”
(People ex rel. Allstate Ins. Co. v. Weitzman (2003)
107 Cal.App.4th 534, 544.)
We review constitutional challenges to the statute de novo.
(People v. Alaybue (2020) 51 Cal.App.5th 207, 214.)
a. Resentencing Under Section 1172.6
“Senate Bill [No.]1437, which enacted various Penal Code
amendments that became effective January 1, 2019, significantly
altered liability for murder under the theories of felony murder
and the natural and probable consequences doctrine.” (People v.
Silva (2021) 72 Cal.App.5th 505, 516 (Silva).) The bill’s objective
was “ ‘to ensure that murder liability is not imposed on a person
14
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.’ ” (People v. Martinez
(2019) 31 Cal.App.5th 719, 723.) Senate Bill No. 1437 created
section 1170.95 (now section 1172.6), which sets “forth a
procedure by which nonkillers convicted [of murder] under the
old law could have their convictions vacated and could be
resentenced under the new law.” (Silva, supra, at p. 516.)
“Typically, once a petitioner makes a prima facie showing
of eligibility for relief [under section 1172.6], the judge issues an
order to show cause, and an evidentiary hearing is held in which
the prosecution has the burden of proof beyond a reasonable
doubt that the petitioner is ineligible for relief under the statute.
(§ [1172.6], subd. (d)(3).) At the eligibility hearing, both the
prosecution and the defense may rely on the record of conviction
or may introduce new evidence or both.” (Silva, supra,
72 Cal.App.5th at p. 516.)
Under section 1172.6, subdivision (d)(1), “Within 60 days
after the order to show cause has issued, the court shall hold a
hearing to determine whether to vacate the murder . . . conviction
and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” Subdivision (d)(3)
states that when the court determines the petitioner is entitled to
relief, “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.”
However, section 1172.6 also provides for resentencing the
petitioner to a “target offense” or “underlying felony” not
15
originally charged. Subdivision (e) of the statute states: “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.”
b. Section 1172.6, Subdivision (d) Allows for
Resentencing Appellant on Attempted Robbery
Appellant argues he cannot be resentenced to attempted
robbery because section 1172.6 only allows the court to
redesignate the murder to a remaining charge (pursuant to
subdivision (d)(3)) or an uncharged crime (under subdivision (e)).
Specifically, “there were no ‘remaining counts’ under subdivision
(d)(1) of [section 1172.6] and there were no ‘remaining charges’
under subdivision (d)(3) of that section, because after appellant
pleaded guilty to murder in this case in count 1, the remaining
counts, namely, counts 2, 3, and 4, were dismissed by the trial
court in furtherance of justice [citation]. Thus, there was no
count or charge remaining for appellant to be resentenced on.”
Appellant contends “Subdivision (e) of [section 1172.6] does not
apply in this case, because one of its stated preconditions, that
the target offense not have been charged (§ [1172.6], subd. (e)),
was not satisfied, because in this case, the target offense,
robbery, was charged, in counts 2, 3, and 4 [citation].”
We agree that resentencing here does not fall under
subdivision (e) because appellant was charged with Mason’s
robbery.4 However, appellant’s proposed interpretation of
4 Defendant was charged with the attempted robbery of
Marry (count 4) and the robbery of Mason (count 2). The trial
16
subdivision (d), which hinges on the word “remaining,” is
inconsistent with the principles of statutory construction.
As we have observed, section 1172.6, subdivision (d)(1)
directs the trial court to resentence “the petitioner on any
remaining counts in the same manner as if the petitioner had not
previously been sentenced. . . .” Subdivision (d)(3) likewise states
“the petitioner shall be resentenced on the remaining charges.”
“Remaining counts” and “remaining charges” are not defined by
the statute. Appellant states no counts/charges “remain” here
because the other charges were dismissed as part of his plea deal.
We disagree.
Consistent with the legislature’s objective and a holistic
reading of the statute, “remaining charges” and “remaining
counts” must refer to the non-murder counts in the complaint or
information that were not the murder charge, regardless of
whether they were dismissed as a result of a plea deal. We
conclude 1172.6, subdivision (d) allows resentencing on counts
charged but never litigated and dismissed, like the attempted
robbery at issue here.5
court resentenced defendant on attempted robbery of Mason, the
lesser included offense of count 2. (See § 1181, subd. (6).)
5 Appellant argues our construction is too broad because
remaining counts/charges could also encompass “counts . . .
which, during a trial, were dropped because it had become
apparent there was insufficient evidence to support them, and/or
on which after a trial, the defendant was found not guilty or on
which, in the case of a jury trial, the jury was hung, which would
not be absurd.” We do not see how appellant’s scenario could
materialize because the trial court may only redesignate murder
to another offense where sufficient evidence supports the
remaining count. (See Silva, supra, 72 Cal.App.5th at pp. 528–
17
In drafting subdivisions (d) and (e) the Legislature sought
to capture situations where the underlying felonies both were
and were not charged. Excluding defendants who pled guilty to
one count in exchange for dismissal of other counts from
subdivision (d)’s ambit can only be accomplished by an
interpretation of the word remaining that is both nonsensical and
unsupported by the legislative purpose. If a defendant can be
resentenced on an uncharged count under subdivision (e), it
makes no sense that he cannot be sentenced on a dismissed count
that at least was charged.
Appellant’s narrow interpretation is not supported by the
legislative intent of section 1172.6. It is well established that
“the purpose of section [1172.6] is to punish a defendant
commensurate with his individual culpability.” (People v.
Howard (2020) 50 Cal.App.5th 727, 742 (Howard).) “Senate Bill
[No.] 1437 also ‘reflects an intent that sentences imposed on
individuals with the same criminal history be the same,
regardless of whether they are being sentenced or resentenced.’ ”
(People v. Cooper (2022) 77 Cal.App.5th 393, 415.) A “ ‘successful
Senate Bill [No.] 1437 petitioner’s criminal culpability does not
simply evaporate; a meritorious section [1172.6] petition is not a
get-out-of-jail free card.’ ” (People v. Lamoureux (2019)
42 Cal.App.5th 241, 256.) Appellant essentially proposes a
construction where any defendant who entered into a plea deal
529.) Where a defendant is found not guilty of a charge after it is
actually litigated and decided, by definition there was insufficient
evidence of the “remaining” count and issue preclusion would
prevent relitigation of that charge. (See People v. Gonzalez (2021)
65 Cal.App.5th 420, 433, review granted Aug. 18, 2021, S269792.)
18
for murder and the trial court dismissed the underlying felony or
felonies as part of the bargain could never be resentenced.
Effectively that defendant would receive the get-out-jail-free-
card. We do not adopt a statutory construction would lead to
absurd results. (See People v. Cook (2015) 60 Cal.4th 922, 927 [A
“fundamental principle of statutory construction is that the
language of a statute should not be given a literal meaning if
doing so would result in absurd consequences which the
Legislature did not intend.”].)
c. The Court Did Not Violate Appellant’s Right to
Trial By Jury
Appellant next argues the court violated “his right to due
process under the Fourteenth Amendment to the United States
Constitution and article I, section 7 of the California Constitution
and . . . appellant’s rights under the Sixth Amendment to the
United States Constitution and article I, section 15 of the
California Constitution to be confronted by the witnesses against
him and under that Sixth Amendment and article I, section 16 of
the California Constitution to a trial by jury.” We first address
appellant’s right to trial by jury.6
We agree with and adopt the First District Court of
Appeal’s analysis in Howard, supra, 50 Cal.App.5th 727 and
Silva, supra, 72 Cal.App.5th 505. Both cases involved sentencing
the defendant for crimes neither found true by a jury nor
admitted by the defendant. Both defendants appealed their
6 We do not address appellant’s right to confrontation as
appellant does not develop the argument. (People v. Abarca
(2016) 2 Cal.App.5th 475, 480 [“ ‘An appellate court is not
required to examine undeveloped claims, nor to make arguments
for parties.’ ”])
19
convictions based on violation of their right to trial by jury.
(Howard, at pp. 732-733, 736; Silva, at pp. 509-510.)
The Howard court affirmed the redesignation, stating “the
plain language of section [1172.6], subdivision (e) contemplates a
situation where . . . 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.” (Howard, supra,
50 Cal.App.5th at p. 738.) The appellate court explained there
was no constitutional violation: “The retroactive relief provided
by section [1172.6] reflects an act of lenity by the Legislature
‘that does not implicate defendants’ Sixth Amendment rights.’
[Citations.] [¶] Here, the process by which a trial court
redesignates the underlying felony pursuant to section [1172.6],
subdivision (e) does not implicate Howard’s constitutional jury
trial right under Apprendi v. New Jersey (2000) 530 U.S. 466, . . .
or Alleyne v. United States (2013) 570 U.S. 99. . . . The
redesignation does not increase Howard’s sentence.” (Id. at
p. 740.)
The Silva court agreed, adopting Howard’s constitutional
analysis. (Silva, supra, 72 Cal.App.5th at p. 520; see also People
v. James (2021) 63 Cal.App.5th 604, 610–611 [defendant was not
entitled to jury trial to determine whether he was eligible for
relief under section 1172.6]; see also People v. Anthony (2019)
32 Cal.App.5th 1102, 1156 [The “retroactive relief they are
afforded by Senate Bill [No.] 1437 is not subject to Sixth
Amendment analysis.”].)
Without citation to case law, appellant argues Howard’s
analysis is erroneous because “requiring the superior court to
resentence a defendant on a strike offense that he did not plead
guilty or nolo contendere to and was not convicted of at a trial by
20
jury or by court is not an act of lenity.” We disagree and side
with our sister courts.
Appellant’s myopic view of lenity ignores the clemency
afforded by the statutory scheme. Without section 1172.6,
appellant would still stand convicted of murder and in all
likelihood, remain in custody. It is the entire process established
by section 1172.6 – from vacatur to resentencing – that is the act
of lenity. Finally both lenity and defendant’s constitutional
rights are preserved by section 1172.6, subdivision (d)(1)’s
mandate that no resentence can be for a term “greater than the
initial sentence.”
d. Appellant Forfeited His Due Process
Arguments
Almost in passing as part of his Sixth Amendment
argument, appellant claims his right to due process also has been
violated by the court’s redesignation of his conviction, but fails to
develop this argument or cite any authority to support his
position. Accordingly, we treat the claim as forfeited. (Cal. Rules
of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th
764, 793.)
That said, even if we were to address due process on the
merits, we would conclude there was no due process violation for
the same reasons stated in Silva and Howard. (Silva, supra,
72 Cal.App.5th at pp. 520-524; Howard, supra, 50 Cal.App.5th at
p. 740.) Appellant had ample notice and opportunity to be heard
on the redesignation of his murder conviction. (Silva, at pp. 523-
524.)
21
e. Substantial Evidence Supports the Attempted
Robbery Redesignation
Appellant contends there was insufficient competent
evidence of attempted robbery of Mason. The only admissible
evidence, he claims, is found in the preliminary transcript and
that does not establish an attempted robbery. He continues:
When the court considered the police report as part of its
resentencing, it was relying on inadmissible evidence.
(1) Standard of Review
Section 1172.6 specifies the burden of proof at the vacatur
stage of the hearing but not at the resentencing stage. (§ 1172.6,
subd. (d)(3) [“the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019”].) Appellant fails to address the issue and respondent
argues that the court must be satisfied only by a preponderance
of the evidence that the crimes subject to resentencing took place.
We need not decide the issue, as we follow Silva’s lead in
concluding “that on any standard—preponderance of the
evidence, clear and convincing proof, or proof beyond a reasonable
doubt—” substantial evidence supports the trial court’s
attempted robbery finding. (Silva, supra, 72 Cal.App.5th at
p. 527.)
On appeal, we determine whether “evidence that is
reasonable, credible, and of solid value” supports the trial court’s
findings. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) In
doing so, view the evidence “in the light most favorable to the
prosecution and presume in support of the [findings] the
existence of every fact the [court] could reasonably have deduced
22
from the evidence.” (Ibid.) We reverse only if “ ‘it appears “that
upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the [court’s findings].” (Ibid.)
(2) Elements of Attempted Robbery
Robbery is “the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.”
(§ 211.) A criminal attempt occurs when there is a specific intent
to commit the crime and a direct but ineffectual act done towards
its commission. (§ 21a.) “The overt act element of attempt
requires conduct that goes beyond ‘mere preparation’ and
‘show[s] that [defendant] is putting his or her plan into action.’ ”
(People v. Watkins (2012) 55 Cal.4th 999, 1021.) “That act need
not, however, be the last proximate or ultimate step toward
commission of the crime.” (People v. Bonner (2000)
80 Cal.App.4th 759, 764.) “Where the intent to commit the crime
is clearly shown, an act done toward the commission of the crime
may be sufficient for an attempt even though that same act
would be insufficient if the intent is not as clearly shown.” (Ibid.)
(3) Substantial Evidence Supported the Attempted
Robbery Redesignation
We conclude substantial evidence supported the trial
court’s redesignation of the murder conviction as attempted
robbery of Mason. Marry’s preliminary hearing testimony and
the police report containing a summary of appellant’s recorded
statement established all the elements outlined above.
The police report showed appellant agreed with four other
men to rob someone to make money. The report documented that
appellant admitted that, during the incident, he spotted victim
Mason approached his victim, and tried to take the victim’s hat
23
but failed as Mason backed away. This evidence establishes
appellant’s specific intent to commit the robbery and shows that
appellant committed overt, but ineffectual, acts towards
achieving the robbery.
Marry’s testimony established that the attempted robbery
was accomplished by means fear. Marry testified that appellant
came out of the same station wagon after the two men had
already taken Mason’s radio and Collins’s coat. Appellant
approached Mason and tried to take Mason’s hat while the two
men accosted Mason and Collins. One of the men threatened:
“ ‘This is bounty hunters here, Blood.’ ” The group’s aggressive
behavior, the gang territorial claim, and the fact Mason urged
Collins to let the men have the coat provide substantial evidence
that the attempted robbery was predicated on fear.
(4) Appellant Forfeited His Objections to the
Court’s Reliance on the Police Report
Appellant contends that the trial court was not permitted
to consider on resentencing the police report because it did not
appear to have been signed by the officer who prepared it, was
not authenticated, and was not used or referred to at the
preliminary hearing. Appellant raised none of these objections
below. (See People v. Myles (2021) 69 Cal.App.5th 688, 696
[defendant forfeited challenge to admissibility of parole risk
assessment and parole hearing transcript by failing to object at
section 1172.6, subdivision (d)(3) hearing].) Quite to the contrary,
appellant attached the police report to his reply papers. He
provided a factual summary “[a]ccording to the police reports,
witness statements, and the preliminary hearing transcript” and
asked the court to take “judicial notice of the facts as contained in
the police report and preliminary transcript.” (See § 1172.6 [“The
24
prosecutor and the petitioner may also offer new or additional
evidence to meet their respective burdens.”].) At the July 30,
2020 hearing, appellant’s counsel relied on the police report to
argue that appellant only asked Mason for a hat and that he had
nothing to do with robbing Collins (the murder victim). He then
invited the very error of which he now complains: Counsel said
the trial court could consider the police report, suggesting only
that the court should give the report little weight.7
(5) Ineffective Assistance of Counsel is
Inapplicable
Appellant argues his counsel rendered constitutionally
ineffective assistance by failing to object to the police report.
However, there is no general constitutional right to the effective
assistance of counsel in postconviction proceedings. (People v.
Cole (2020) 52 Cal.App.5th 1023, 1032, review granted Oct. 14,
2020, S264278 (Cole); see People v. Boyer (2006) 38 Cal.4th 412,
489 [no constitutional right to effective assistance of counsel in
habeas review].)
7 Defense counsel stated: “The other thing I want to add,
your Honor: I have read the legislative history of the statute.
Nowhere in the legislative history does it say the court has to
accept the police reports as being true. It says it’s a piece of
evidence that either side can argue what weight the court should
give it. [¶] . . . [¶] We all know police reports have some value.
The value that one gives to them is subject to that one’s
interpretation. [¶] Nowhere is it in the statute, and this is very
important, does it say a magistrate or a judge is bound by what is
written in a police report. [¶] . . . [¶] So the People’s argument
that there is a police report is a beautiful thing, but the statute
doesn’t say that if the police report says X, that you have to
accept it.”
25
2. No Error Imposing Parole
At the time appellant was resentenced, former section
1170.95, subdivision (g) allowed the court to impose up to three
years of parole supervision. Senate Bill No. 775 reduced the
parole period to a maximum of two years. (§ 1172.6, subd. (h).)
Appellant contends that imposition of two years of parole
constituted an abuse of discretion and violated his right to be free
from cruel and unusual punishment. The Attorney General
counters that even though appellant’s long sentence was
retrospectively not warranted, the trial court acted reasonably
when it found that parole would be helpful to the successful
reintegration to society of someone held long in custody.
a. The Trial Court Did Not Abuse Its Discretion by
Imposing Parole
We review the trial court’s sentencing decision for abuse of
discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “In
reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.” ’ [Citations.] Second, a ‘ “decision will not be
reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
26
irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 376–377.)
Appellant asserts imposing any parole was an abuse of
discretion for several reasons: First, by the time of resentencing
“appellant had already been out in the community on his own
recognizance for apparently around six months . . . apparently
without incident.”8 Second, “appellant had been practicing to
reintegrate into society for 19 years, while in prison, as a result of
his eight parole consideration hearings” between 1995 and 2019.
Appellant explains: “at each of those eight hearings, appellant’s
interrogators explained to him what he needed to do to prepare to
reintegrate into society [citations]. Presumably, appellant took
that advice to heart at each of those hearings, so that he might
have a better chance of being granted parole the next time. It is
inconceivable that two years of parole could do any more for
appellant in terms of helping him reintegrate into society than
the advice he received during his eight parole consideration
hearings over the 19-year period.” Third, his release from
custody meant that appellant would “be living with his wife, a
former prison guard, and he was 53 years old, a different person
than he was at the time of the offense, when he was 18 years old.”
We acknowledge these arguments carry some force, and the
trial court could have reasonably accepted them and forgone any
parole period. But that does not mean that the trial court’s
actual order was an abuse of discretion. An accepted objective
parole is to “provide ‘supervision and counseling, to assist in the
parolee’s transition from imprisonment to discharge and
reintegration into society.’ ” (People v. Wilson (2020)
8 The court released appellant on his own recognizance on
August 28, 2020, and imposed parole on March 5, 2021.
27
53 Cal.App.5th 42, 50–51; In re Roberts (2005) 36 Cal.4th 575,
590 [Parole “assists in returning the prisoner to society while
simultaneously affording some measure of continuing protection
to society.”].) As the trial court pointed out, appellant had spent
his entire adult life in prison, entering custody at age 18. The
circumstances of his resentencing and release notwithstanding,
the trial court could have reasonably concluded that a prisoner
incarcerated for 35 years would benefit from parole supervision
and counseling. Nor has appellant provided a cohesive argument
that his counsel was ineffective in connection with the imposition
of parole.
b. Appellant Forfeited His Eighth Amendment
Challenge to Parole
Appellant next contends his two-year parole constitutes
cruel and unusual punishment under both state and federal
constitutions. However, appellant did not object to parole on this
basis. “As a general rule, ‘complaints about the manner in which
the trial court exercises its sentencing discretion and articulates
its supporting reasons cannot be raised for the first time on
appeal.’ [Citation.] A claim that a sentence is cruel or unusual
requires a ‘fact specific’ inquiry and is forfeited if not raised
below.” (People v. Baker (2018) 20 Cal.App.5th 711, 720.)
Appellant has thus forfeited this argument.
3. We Strike the Parole Revocation Fine
Lastly, we agree with the parties that the parole revocation
fine must be stricken as it violates the ex post facto clause. The
“ex post facto clause forbids imposing a parole revocation fine on
a parolee who committed the underlying crime prior to enactment
of the fine.” (People v. Callejas (2000) 85 Cal.App.4th 667, 676
28
(Callejas); People v. Flores (2009) 176 Cal.App.4th 1171, 1181–
1182 [stating same].)
Here, the trial court imposed and stayed a $300 parole
revocation fine under section 1202.45. The Legislature enacted
section 1202.45 in 1995, nearly a decade after appellant’s offense.
(Stats. 1995, ch. 313, § 6 (AB 817), effective August 3, 1995.) We
therefore strike the fine. (Callejas, supra, 85 Cal.App.4th at
p. 678.)
DISPOSITION
The trial court is directed to amend the abstract of
judgment to strike “$300 per PC 1202.45” in paragraph number
5. The trial court is directed to forward a copy of the amended
abstract of judgment to the California Department of Corrections
and Rehabilitation. As modified, the judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
29