People v. Fouse

317 Cal.Rptr.3d 375

The PEOPLE, Plaintiff and Respondent,

v.Darlene Renee FOUSE, Defendant and Appellant.

F085131

Court of Appeal,

Fifth District.

Filed January 18, 2024

APPEAL from an order of the Superior Court of Stanislaus County, Ricardo Cordova, Judge. (Super. Ct. No. 1063488)

Brad Kaiserman, Encino, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PENA, J.

INTRODUCTION

Defendant Darlene Renee Fouse appeals from the order following the grant of her Penal Code section 1172.6 petition for resentencing. (Undesignated statutory references are to the Penal Code.) Defendant was convicted by a jury in April 2006 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. After petitioning for resentencing under section 1172.6, defendant was found not culpable for the attempted murders under the amended law (she was the getaway driver). The court vacated the two convictions for attempted murder of a peace officer, redesignated the offenses as two counts of assault with a firearm on a peace officer, and added a conviction for felony evading a peace officer under the redesignation procedure provided in section 1172.6, subdivision (e).

Because the jury convicted defendant of the target offenses of robbery, she argues the trial court erred in redesignating the attempted murders as assaults with a firearm on a peace officer (lesser included offenses) and in adding a conviction for evading a peace officer. Instead, she contends the resentencing procedure provided in subdivision (d)(3) of section 1172.6 applied and limited resentencing to the robbery target offenses, of which she was charged and convicted. The People argue the trial court did not err in applying both the resentencing and redesignation procedures under section 1172.6.

In reviewing the plain language of section 1172.6, subdivisions (d)(3) and (e), we agree With defendant. Since it is undisputed she was charged and convicted of the target offenses, the statute required the court to resentence defendant on the remaining charges. It did not permit the court to also redesignate the attempted murder convictions to assault with a firearm on a peace officer and felony evading a police officer. Consequently, we reverse the court’s order and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

Following a series of violent home invasion robberies, a jury convicted defendant in 2006 of three counts of first degree residential robbery in concert (§§ 211, 212.5, subd. (a), 213; counts 32, 33, 34), one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 35), two counts of attempted murder of a peace officer (§§ 187, 664, subd. (e); counts 36, 37), and one count of conspiracy to commit residential robbery (§§ 182, 212.5, subd, (a); count 38). She was sentenced to two consecutive terms of life in prison with the possibility of parole on the attempted murder counts, plus a determinate term of 11 years, composed of six years for one robbery, two years for each of the other two robberies, and one year on the assault charge. All terms were ordered to run consecutively, and a five-year term was imposed and stayed on the conspiracy conviction.

Our court affirmed defendant’s convictions but modified her sentence in the unpublished opinion, People v. Fouse (Mar. 13, 2009, F050427) 2009 Cal.App.Unpub. LEXIS 2102, 2009 WL 638777, which also details the facts underlying defendant’s convictions. The opinion includes a synopsis of the counts with which defendant was not charged, but with which her codefendants Anthony Lawrence Martinez, David Wayne Morrison, and David Anthony Silva were charged and convicted, in order to give context to some of the issues defendant raised. As to the charges against defendant, it provided in relevant part:

"Counts 32-35-September 10, 2003

"In September 2003, [H.G. Sr.] resided … with his wife …, 14-year-old daughter …, and 23-year-old son [H.G. Jr.] [H.G. Sr.], a farm manager, had an office at his residence, as well as one at his work site. An alarm system that was connected to a security company and the sheriff’s department had been installed at the house on September 9.

"At approximately 2:20 a.m. on September 10, [H.G. Sr.] got up to see his wife off to work and to check on some water he had running in his orchard. Everything seemed fine. Around 3:30 a.m., he was asleep when the alarm went off. Thinking there was a problem with the installation, he was hurrying to turn off the alarm, the control panel for which was by the front door, when three intruders entered the house by breaking open the dead-bolted front door. One held a shotgun to [H.G. Sr.]’s head and said that if he did not quickly turn off the alarm, the intruder would ‘ "blow [his] brains out." ’ The intruder repeated this and banged [H.G. Sr.]’s head with the butt of the shotgun multiple times. [H.G. Sr.] was able to tell the intruders were wearing masks, He heard three male voices.

"[H.G. Sr.] managed to turn off the alarm. The intruders took him into the living room, where he was placed face down on the floor, his hands and ankles were restrained with black plastic ties, and his head was covered. As one of the intruders ran down the hallway toward the children’s rooms, another put his foot to [H.G. Sr.]’s neck, applied pressure, and asked him where the money was. The shoe felt heavy. The intruder told [H.G. Sr.] that his son was covered in blood, and that if he loved his son, he would tell the intruder where the money was. [H.G. Sr.] told him that there was money in his wallet in the laundry room. The intruder then asked where the ‘clavo’ was. In the Spanish culture, ‘clavo’ is a slang term that means ‘stash,’ [H.G. Sr.] understood it to mean money or jewelry, and he told the intruder that he did not know what he was talking about. The intruder then got angry and kicked [H.G. Sr.] in the side of the face.

"Meanwhile, [H.G. Jr.] was awakened when his locked bedroom door was kicked in. What appeared to be a shotgun and a flashlight were pointed at him. He could hear the alarm in the background. It went off after 15 to 25 seconds. [H.G. Jr.] was told to lie face down on his stomach, and his wrists and ankles were restrained with black zip ties and a blanket was thrown over him. [H.G. Jr.] could hear three male voices. The intruders spoke in English, except that [H.G. Jr.], who understood Spanish, heard the term ‘ese’ four or five times when one intruder addressed another. The two intruders in his room used the term and seemed to have Hispanic accents.

"[H.G. Jr.] heard one of the intruders tell his sister to get up and then to get on the ground. He then heard what sounded like someone being struck. Although he did not hear his sister make any sound, he yelled out not to hurt her, that she was, only 14. The intruders repeatedly asked [H.G. Jr.] where the money was; when he insisted there was no) cash in, the house, he was kicked a few times in the back of his head with something that felt sturdy, like a boot. At some point, [H.G. Jr.] could hear his father insisting that there was no money. When the intruders were asking [H.G. Jr.] where the money was, they said that if he was lying, his father was going to get hurt worse, and that [H.G. Jr.] should look at him, that he was bleeding all over. [H.G. Jr.] knew they were lying, because he could hear his father and had not heard him being struck or asking not to be hit.

"Eventually, one of the intruders asked [H.G. Sr.] how to turn off the front lights. [H.G. Sr.] told him the location of the switch, then heard a car nearby that sounded like its muffler was tom up. The car was leaving. The house was quiet then. [H.G. Jr.], who had been left alone in his room after it was searched and items were taken, managed to free himself and then his father and sister. They discovered the telephones were missing from the wall and their cell phones were in the toilet, so [H.G. Jr.] activated the panic button on the alarm to summon help.

"The incident lasted 40 to 50 minutes, during which the house was ransacked. The intruders took a number of items, including jewelry, money, and a video camera. Authorities recovered some of the items following the arrests in this case. [H.G. Sr.] suffered cuts and bruises to his head and face from being kicked and struck with the gun butt. He also had bloody marks on his ankles from having his feet tightly bound. [The daughter] sustained a facial abrasion and marks on her wrists and ankles. [H.G. Jr.] had marks on his wrists and ankles that were visible for about a month. None of the family sought medical attention.

"Shoe prints were found between the residence and the road. Boots subsequently seized from Silva could not be excluded as the source of some of the impressions. Boots subsequently seized from Martinez could not be excluded as the source of other of the impressions. There were tire tracks in the orchard near the house that appeared to go from the road, into the orchard, and then out onto the road again. The shoe prints led toward the area where the tire prints were found.

"Counts 36-37-September 10, 2003

"Early on the morning of September 10, 2003, Stanislaus County Sheriff’s Detective Nuno was assigned to be part of the arrest team, if residential robbery suspects, who were under surveillance, committed a robbery. Sergeant Allen, who was the team supervisor, was with Nuno in one vehicle, while the rest of the SWAT team and a couple of other detectives were in other vehicles. Nuno and Allen were in an unmarked car that was...