People v. Courtney

1

THE PEOPLE, Plaintiff and Respondent, v. DERRICK KINTE COURTNEY, Defendant and Appellant.

C097510

California Court of Appeals, Third District, Sacramento

April 11, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. 02F00882)

BOULWARE EURIE, J.

We address here the scope of a trial court's authority when resentencing a person whose murder conviction has been rendered invalid by retroactive changes to the law. The relevant retroactive change applies where a defendant has participated in the "underlying felony" of robbery with other people, and one of those other people kills someone, the defendant is no longer guilty of murder based solely on participation in the robbery. (See §§ 1172.6, subds. (a), (d), (e); 189, subd. (e).)^[1]

Defendant Derrick Kinte Courtney and his codefendant Melvin Jaman Peete robbed a married couple and during the robbery, Peete shot and killed the husband. Courtney was prosecuted and convicted of murder under a robbery-murder theory and also convicted of robbing the husband. He was not charged with robbing the wife but does not dispute the strength of the evidence that he did rob her.

Courtney successfully challenged his murder conviction after changes to the law and the trial court redesignated the murder conviction as multiple felonies that were never charged in the original prosecution (including robbery of the wife) imposed firearm enhancements on each of the redesignated offenses, and sentenced him to a new aggregate term that included an upper term on the base count.

Section 1172.6, subdivision (d)(3) provides that if a murder conviction is vacated, the person "shall be resentenced on the remaining charges." (Italics added.) Section 1172.6, subdivision (e) says the person's murder conviction "shall be redesignated as the target offense or underlying felony for resentencing purposes if . the target offense was not charged." (Italics added.) Which provision applies here, when one underlying felony (robbery of the husband) was charged, but one (robbery of the wife) was not charged? Courtney argues section 1172.6, subdivision (d)(3) applies, not section 1172.6, subdivision (e). We disagree. The trial court here properly redesignated the murder conviction.

In addition to his unpersuasive contention that the trial court (1) exceeded its authority by redesignating his murder conviction, Courtney also contends the trial court (2) exceeded its authority by imposing firearm enhancements on the new offenses, (3) exceeded its authority by choosing new offenses that cannot be "underlying felonies" under the law, (4) erred by imposing an upper base term, and (5) erred by failing to strike the firearm enhancements as to the subordinate terms.

We reject Courtney's second claim, and accept the People's concession that Courtney's third claim has merit. Accordingly, we will reverse three of the four redesignated offenses the trial court chose and remand the matter for a full resentencing. Because of the remand, we do not reach Courtney's fourth and fifth claims, which he can raise during resentencing proceedings in the trial court. We will affirm the judgment in all other respects.

BACKGROUND

Courtney and Peete robbed a husband and wife after forcibly entering their house in 2001. The couple and their two guests were forced to lie on the floor as the men demanded property, threatened to shoot them, and took jewelry and keys to the couple's cars. As Peete searched the house, Courtney stayed with the victims while holding a handgun, which he also pointed at the couple's two-year-old son. After he ripped a telephone off a wall and threatened the victims not to call the police, Courtney left the scene in one car that belonged to the couple. Peete tried to leave in a second car the couple owned with another unknown accomplice, but that car stalled in front of the house. The husband emerged holding a shotgun, exchanged shots with Peete, and died hours later from a gunshot wound.

In 2004, a prosecutor charged Courtney and Peete with murder (§ 187, subd. (a); count one) and first degree robbery of an inhabited dwelling in concert with two or more people (§§ 211, 213, subd. (a)(1)(A); count two). The information alleged that both Courtney and Peete personally used a firearm as to the murder and robbery counts (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and also alleged a robbery-murder special circumstance as to the murder count (§ 190.2, subd. (a)(17)). Count three of the information charged Courtney with being a felon in unlawful possession of a firearm. (Former § 12021, subd. (a)(1).)

After being instructed on the felony-murder rule in connection with "persons engaged in the commission of the crime of robbery," a jury found Courtney guilty on all charges and also found true the allegations he personally used a firearm as to the first degree murder and robbery and found true the robbery-murder special circumstance as to the murder count. A panel of this court affirmed Courtney's convictions and sentence of life without the possibility of parole. (People v. Courtney (Sept. 28, 2006, C047770) [nonpub. opn.].)

After the enactment of legislation amending the felony-murder rule and creating a resentencing petition process for felony-murder convictions (see People v. Strong (2022) 13 Cal.5th 698, 707-708), Courtney successfully challenged his murder conviction, triggering the prospect of a new sentence. The People argued the trial court could redesignate Courtney's murder conviction as multiple felonies that were never charged: three counts of assault with a firearm (for pointing his handgun at the couple's two guests and the young child) and a second robbery offense (this one identifying the wife of the married couple as the victim). Courtney argued sentencing him on previously uncharged offenses was improper.

At an October 2022 hearing, the trial court agreed with the People and (1) renumbered Courtney's robbery offense (husband-victim) as count one, (2) redesignated Courtney's murder conviction as another robbery offense (wife-victim; count two) and three counts of assault with a firearm (§ 245, subd. (a)(2); counts three, four &five), (3) added firearm enhancements for each of the four redesignated offenses, and (4) imposed an aggregate sentence of 31 years four months, which included the upper term on count one. Courtney filed a notice of appeal with this court in December 2022. His opening brief was filed in June 2023, and this case was fully briefed on February 5, 2024.

DISCUSSION

I Legal Background

A. Relevant Statutes

If a petitioner is entitled to resentencing relief on a murder conviction, "the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3), italics added.) But the "conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged." (§ 1172.6, subd. (e), italics added.)

Though section 1172.6, subdivision (e) does not define "target offense or underlying felony," there is consensus the phrase means the offense upon which liability was based for either the natural and probable consequences doctrine or the felony-murder rule. (People v. Fouse (2024) 98 Cal.App.5th 1131, 1144 (Fouse).)

B. Relevant Case Law

The combined reasoning of opinions from at least three different divisions of the First District teaches that, in light of the overall purpose and intent of section 1172.6, a trial court identifying the "underlying felony" for resentencing under section 1172.6, subdivision (e) has flexibility in crafting a new sentence that is tailored to the gravity of a defendant's conduct, and therefore may (1) redesignate more underlying felonies than the number of vacated convictions and (2) impose uncharged enhancements. (See People v. Silva (2021) 72 Cal.App.5th 505, 529-532 [no error in redesignating more counts of robbery than the number of murder convictions, because § 1172.6, subd. (e) "invest[s] the . . . court with considerable discretion," which permits attention to of the "full extent of the petitioner's criminal conduct" and "the number of crime victims, not just the number of murder charges on which the petitioner was convicted" (italics added)]; People v. Watson (2021) 64 Cal.App.5th 474, 477-478, 492 [no error in redesignating two underlying felonies in relation to only one vacated murder conviction, because a construction of § 1172.6, subd. (e) that is "more aligned with the statute's purpose and history is one that does not eliminate the discretion of the courts to designate more than one felony when necessary to 'calibrate' a defendant's punishment to his or her culpability"]; People v. Howard (2020) 50 Cal.App.5th 727, 739-742 [no error in imposing an enhancement that was never charged, because reading § 1172.6, subds. (d)(3) and (e) together suggests the Legislature "intended to grant the trial court flexibility . . . under subdivision (e)," thereby allowing a trial court to "calibrate[ ] . . . punishment to . . . culpability," consistent with the" 'traditional latitude'" courts have at sentencing].)

Recently in Fouse, the Fifth District observed that Howard, Watson, and Silva were all cases where the target offenses/underlying offenses were not originally charged, triggering section 1172.6 subdivision (e) (a conviction "shall be redesignated as the target offense or underlying felony . . . if . . . the target offense was not charged"). By contrast, the successful petitioner in Fouse originally was charged with (and convicted of) the...