Filed 6/16/20
                      CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        FIRST APPELLATE DISTRICT

                                DIVISION FIVE


 THE PEOPLE,
         Plaintiff and Respondent,
                                            A157285
 v.
 DONNIE HOWARD,                             (Alameda County
                                            Super. Ct. No. H56262B)
         Defendant and Appellant.


       In 2010, an elderly woman was shot and killed during a burglary of her
home. Three defendants, including Donnie Howard, were charged with
murder. In 2015, a jury convicted Howard of first degree murder with a
felony-murder special circumstance, and found he had been armed in the
commission of the offense. The trial court sentenced Howard to life without
the possibility of parole.
       In our 2018 decision in Howard’s prior appeal, we reversed the felony-
murder special circumstance, concluding the evidence was insufficient to
show Howard—who was not the actual killer—acted with reckless
indifference to human life. (People v. Howard (May 30, 2018, A149081)
[nonpub. opn.] (Howard I).)
       When the case returned to the trial court, Howard moved to vacate his
murder conviction and for resentencing pursuant to Penal Code section




                                       1
1170.95, enacted effective January 1, 2019.1 (Stats. 2018, ch. 1015, § 4.) As
pertinent here, section 1170.95 outlines a process through which qualifying
defendants can have their murder convictions vacated and be resentenced.
(§ 1170.95, subds. (d)(1)–(d)(3).) The statute provides that where the murder
conviction was charged generically and the underlying felony was not
charged, the trial court redesignates the “underlying felony for resentencing
purposes.” (§ 1170.95, subd. (e).)
      The parties agreed Howard’s murder conviction should be vacated, and
the court vacated it. (§ 1170.95, subd. (d)(2).) The parties also agreed the
underlying felony was burglary, but they disagreed on the degree of the
offense. (§ 1170.95, subd. (e).) Adopting the prosecution’s interpretation of
the statute, the court redesignated Howard’s conviction as first degree
burglary. (§§ 459, 1170.95, subd. (e).) It sentenced Howard to the aggravated
six-year prison term for the burglary conviction, designated the offense a
violent felony (§ 667.5, subd. (c)(21)), and imposed a one-year arming
enhancement (§ 12022, subd. (a)(1)).
      Howard appeals. He contends the sentence for first degree burglary is
unauthorized because it contravenes the plain language of section 1170.95
and violates his federal constitutional rights. He also challenges the violent
felony designation and the arming enhancement on similar grounds.
      We affirm. We conclude the court properly redesignated the underlying
felony as first degree burglary pursuant to section 1170.95, subdivision (e)
because the evidence at trial established—beyond dispute—that defendants
burglarized a residence. We also hold redesignating the conviction as first
degree burglary did not violate Howard’s federal constitutional rights.


      1Undesignated statutory references are to the Penal Code. We
incorporate by reference our unpublished opinion in Howard I.

                                       2
Finally, we conclude the court properly designated the offense a violent felony
(§ 667.5, subd. (c)(21)) and imposed a one-year arming enhancement (§ 12022,
subd. (a)(1)).
                 FACTUAL AND PROCEDURAL BACKGROUND
      The operative amended information charged Howard and two co-
defendants, Ayodele Patterson and Lionel Harris, with first degree murder
and alleged a special circumstance of burglary felony murder (§§ 187, subd.
(a), 190.2, subd. (a)(17)(G)). The amended information alleged the murder
was a serious felony (§ 1192.7, subd. (c)) and a violent felony (§ 667.5, subd.
(c)). The amended information further alleged a principal was armed with a
firearm during the offense (§ 12022, subd. (a)(1)), and that Howard had a
prior burglary conviction and had suffered a prior prison term.
      Harris pled no contest to voluntary manslaughter. Trial proceeded
against Howard and Patterson.
                                      Trial
      Howard and Harris had committed a burglary together. During that
burglary, both men wore gloves.
      In June 2010, June Pavon was 80 years old. She lived with her dog in a
home in the Hayward Hills. The house had an attached garage; a stairway
led from the garage to Pavon’s kitchen. A side door to the garage had been
broken during a burglary about month earlier. A sheet of plywood had been
wedged in place of the door as a temporary fix.
      On the day of the murder, Patterson invited Harris to come to his
apartment. After Harris arrived, Patterson took a phone call in another
room. Patterson came back and said he had a “lick on [the] line,” meaning he
wanted to burglarize a house. Patterson insisted Harris come along, and the
two men left Patterson’s apartment. Patterson had a sawed-off rifle sticking



                                        3
out of the top of his pants. He gave Harris a pair of blue gloves, which Harris
put on.
      Howard joined the two men. He was wearing blue gloves. As the three
men walked toward Pavon’s house, Patterson said there was a big dog at the
house. It was agreed Harris would be the lookout. When the three men
arrived at Pavon’s house, they walked down an alleyway between the garage
and a shed. Howard and Patterson stopped at the side door to the garage,
while Harris walked around to the backyard. Harris saw Pavon in the
kitchen. He went around the corner to tell Howard and Patterson that
someone was in the house. When Harris returned, the side door to the
garage was open. Harris walked inside the garage and noticed the door
leading from the stairs to the kitchen was also open.
      Harris walked up the stairs and into Pavon’s kitchen. Patterson stood
between the kitchen and the living room, holding his gun. Patterson
whispered to Harris that there was a lady in the living room and asked him
what he wanted him to do. Harris said they should come back when she was
not there. Patterson said, “Fuck that” and “We going to do this. . . . I’m
fitting to lay her down.” Patterson entered the living room and approached
Pavon, who was sitting on her couch. He shot Pavon in the chest, paused,
then shot her three more times.
      Patterson picked up shell casings and went through Pavon’s
belongings. Harris was upset at Patterson for shooting Pavon; he left the
house without going through her belongings. Harris did not see Howard
inside the house. The last place he saw Howard was at the side door of the
garage.
      The next day, Pavon’s daughter went to the house and found her
mother’s dead body on the living room couch. The house had been ransacked.



                                       4
The side door to the garage—which appeared to be the entry point—was
damaged. That same day, Howard pawned a piece of gold jewelry at an
Oakland pawn shop. The police interviewed Howard, who denied
involvement. Police also interviewed Patterson, then placed the two men in
a room together and recorded the conversation. During that conversation,
Howard claimed he “wasn’t there.” A witness testified Howard was at her
home on the evening Pavon was murdered, and that he spent the night.
                 Closing Argument, Jury Instructions, Verdict
      During closing argument, the prosecutor described the incident as a
“home invasion” and urged the jury to conclude the murder was committed
during the commission of a burglary. Defense counsel conceded the victim
was “murdered in her home” during a burglary but argued Howard “wasn’t
there.”
      The court instructed the jury on aiding and abetting, felony murder,
and general burglary (CALCRIM No. 1700). The jury convicted Howard of
first degree murder (§ 187) with a felony-murder special circumstance,
finding Howard was engaged in the commission of the crime of burglary
(§ 190.2, subd. (a)(17)(G)). The jury also found Howard had been armed with
a firearm in the commission of the offense (§ 12022, subd. (a)(1)). The trial
court determined Howard had a prior burglary conviction and sentenced him
to life without the possibility of parole.
                                     Howard I
      Howard appealed. As relevant here, we concluded there was “ample
evidence [Howard] aided and abetted a residential burglary.” We noted the
evidence presented by the prosecution supported an inference that Howard
agreed in advance to commit the burglary with Patterson, accompanied him
to the scene, forced open the door to the attached garage, and later pawned



                                         5
jewelry that may have been taken from Pavon’s house. We assumed, without
deciding, that this evidence was sufficient to show Howard was a major
participant in the burglary.
      But we reversed the felony-murder special-circumstance allegation
because we determined the evidence did not establish Howard acted with
reckless indifference to human life. We also reversed the prior burglary
conviction, concluding it was not adequately pled and proven. We modified
Howard’s sentence to 25 years to life for first degree murder. (Howard I,
supra, A149081.)
                            Section 1170.95 Petition
      On remand, Howard petitioned to vacate his murder conviction and for
resentencing pursuant to section 1170.95. The parties agreed the murder
conviction should be vacated, and the court granted the petition and vacated
the conviction. (§ 1170.95, subd. (d)(2).)
      When discussing the underlying felony for resentencing, the court
observed “[t]he residential burglary wasn’t pled and prove[n]” but that it was
“charged at the preliminary hearing.”2 The court continued: “The jury was
only instructed on general 459 burglary, not residential burglary. I heard
the case. The facts were clear there was a residential burglary. I think it’s
fair that Mr. Howard isn’t being saddled with the murder because he
never participated. I heard the trial. The shooter [Patterson] shot
impulsively. . . . It wasn’t planned to be an execution. . . . Mr. Howard didn’t




      2  In addition to murder, the original information alleged first degree
burglary (§§ 459, 460) and a person present enhancement (§ 667.5, subd.
(c)(21)). The court held Howard to answer the charges and the person
present allegation. The amended information, however, did not charge
burglary or allege a person present enhancement.

                                        6
plan for [the victim] to be killed. On the other hand, he did obviously plan a
residential burglary of an elderly lady in the middle of the night.”
      Defense counsel cautioned that resentencing Howard to residential
burglary would punish him “for a crime that was neither pled nor proven” in
violation of the federal constitution. According to defense counsel, the
Legislature did not intend that when designating the underlying felony, the
court “could be a fact finder . . . and impose a sentence for a crime neither
pled nor proven.”
      The prosecutor urged the court to “go back and look at what the facts
were, what crime was actually committed now that the crime can no longer
be designated as a murder, and substitute a new offense for that murder.”
Referring to the “facts as they were proven at trial” and “accepted by the
Court of Appeal,” the prosecutor argued Howard committed first degree
“residential burglary with a person present.” Defense counsel countered:
“[w]e don’t have a system of justice where we supplant what actually
occurred for what the government pleads and what an unanimous jury finds
beyond a reasonable doubt. . . . [¶] . . . [¶] I can’t believe the [L]egislature
would allow a [defendant] to be punished and sentenced to a crime not
proved.”
      The court noted that under the former felony-murder rule, “either a
residential burglary or just a regular burglary would suffice. That’s what the
[prosecutor] was operating on” and “given notice of as to what [the
prosecutor] could prove. [¶] [CALCRIM] 1700, the general 459 instruction,
was given. [¶] If . . . a burglary had been charged and this had happened
now, they would have been given a residential burglary instruction. They
wouldn’t have been given any regular burglary instruction because there was
just absolutely no evidence of it.”



                                         7
       The court designated the underlying felony as first degree residential
burglary. It stated a second degree burglary designation would lack
credibility and common sense, and “would cause an injustice” to the
prosecution and the victim.
                                 Resentencing
       The prosecution recommended the court impose the aggravated term
for first degree burglary, designate the offense as a serious and violent felony
(§ 667.5, subd. (c)(21)), and impose the arming enhancement (§ 12022, subd.
(a)(1)). Defense counsel reiterated his objections to the first degree burglary
designation. Counsel urged the court not to impose the enhancements,
contending the person present designation was not “pled and proven” and
that section 1170.95 did not allow the court to impose enhancements.
According to defense counsel, the statute “says that the crime and all the
enhancements are vacated and the Court shall redesignate a new crime. It
doesn’t mention anything about enhancements. . . . I think the Court is
bound by and can only do what [section] 1170.95 says it can do.”
       The court sentenced Howard to seven years in state prison. It imposed
the aggravated term of six years for first degree residential burglary and
designated the burglary as a violent felony (§ 667.5, subd. (c)(21)). The court
imposed an additional one year for the arming enhancement (§ 12022, subd.
(a)(1)).
                                 DISCUSSION
                                       I.
                              Statutory Framework
       Section 1170.95 amended the felony-murder rule “ ‘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



                                        8
underlying felony who acted with reckless indifference to human life.’ ”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723.) The statute declares
“ ‘[t]here is a need for statutory changes to more equitably sentence offenders
in accordance with their involvement in homicides,’ ” that “ ‘[i]t is a bedrock
principle of the law and of equity that a person should be punished for his or
her actions according to his or her own level of individual culpability,’ ” and
that “ ‘[r]eform is needed in California to limit convictions and subsequent
sentencing so that the law . . . fairly addresses the culpability of the
individual and assists in the reduction of prison overcrowding, which
partially results from lengthy sentences that are not commensurate with the
culpability of the individual.’ ” (People v. Ramirez (2019) 41 Cal.App.5th 923,
931.) Section 1170.95 has been described as providing “ameliorative benefits”
(People v. Garcia (2020) 46 Cal.App.5th 123, 182) and as “an act of lenity.”
(People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.) The statute does not
“categorically provide a lesser punishment must apply in all cases.”
(Martinez, at p. 728.)
      As relevant here, a defendant convicted of first degree felony murder
may file a petition with the sentencing court to have the murder conviction
vacated and to be resentenced. (§ 1170.95, subd. (a).) A petitioner is entitled
to relief under section 1170.95 if three conditions are met: (1) the prosecution
proceeded under a felony-murder theory; (2) the petitioner was convicted of
first degree murder following a trial; and (3) the petitioner could not be
convicted of first degree murder because of changes to section 188 or 189
made effective January 1, 2019. (§ 1170.95, subd. (a)(1)–(3).)
      The trial court reviews the petition to determine whether the petitioner
has made a prima facie showing he is entitled to relief. (§ 1170.95, subd. (c).)
If the petitioner makes such a showing, the trial court must hold a hearing



                                        9
“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 been previously [. . .] sentenced, provided
that the new sentence, if any, is not greater than the initial sentence.”
(§ 1170.95, subd. (d)(1).) “The parties may . . . stipulate that the petitioner is
eligible to have his . . . murder conviction vacated and [is eligible] for
resentencing. If there was a prior finding by a court or jury that the
petitioner did not act with reckless indifference to human life or was not a
major participant in the felony, the court shall vacate the petitioner’s
conviction and resentence the petitioner.” (§ 1170.95, subd. (d)(2).)
      At the eligibility hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing. If the prosecution fails to sustain its burden of
proof, 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. The prosecutor and the petitioner may rely on the record
of conviction or offer new or additional evidence to meet their respective
burdens.” (§ 1170.95, subd. (d)(3).)
      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, subd. (e).)




                                         10
                                        II.
   The Court Properly Designated the Conviction as First Degree Burglary
               Pursuant to Section 1170.95, Subdivision (e)
      The parties agree Howard was entitled to have the murder conviction
vacated pursuant to section 1170.95. They also agree the underlying felony
for resentencing purposes is burglary. The parties, however, part ways on
the degree of burglary. Howard argues the trial court was required to
designate the conviction as second degree burglary—even if the evidence at
trial showed a residential burglary—because he was not charged with first
degree burglary, the jury was not instructed on that offense, and the jury did
not reach a verdict on that charge.
      The Attorney General contends the court properly designated the
conviction as first degree burglary because the evidence at trial established,
beyond any possible dispute, that the building was a residence, and because
designating the conviction as residential burglary furthers the purpose of
section 1170.95, which is to punish defendants commensurate with their
culpability. In our view, the Attorney General has the better argument.
      A.    Interpreting Section 1170.95, Subdivision (e)
      The construction and interpretation of section 1170.95 is a question of
law we consider de novo. Our task “is to ascertain the Legislature’s intent so
as to effectuate the law’s purpose. [Citation.] We begin our inquiry by
examining the statute’s words, giving them a plain and commonsense
meaning. [Citation.] In doing so, however, we do not consider the statutory
language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance
of the statute . . . in order to determine the scope and purpose of the
provision . . . . [Citation.]’ [Citation.] That is, we construe the words in
question ‘ “in context, keeping in mind the nature and obvious purpose of




                                        11
the statute . . . .” [Citation.]’ [Citation.] We must harmonize ‘the various
parts of a statutory enactment . . . by considering the particular clause or
section in the context of the statutory framework as a whole.’ [Citations.]
We must also avoid a construction that would produce absurd consequences,
which we presume the Legislature did not intend.” (People v. Mendoza (2000)
23 Cal.4th 896, 907–908.)
      We begin by looking at the words of the statute. The pertinent
provision—section 1170.95, subdivision (e)—provides that when the
petitioner is entitled to relief, and where “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.” Section 1170.95, subdivision (e) does not define “underlying
felony,” nor specify the process by which the court designates that felony.3 In
the felony murder context, the phrase “underlying felony” means the offense
that was the basis for felony-murder liability at trial. “The statutory
definition of first degree felony murder is . . . ‘murder . . . committed in the
perpetration of, or attempt to perpetuate [certain enumerated felonies
including . . . burglary].’ ” (People v. Clark (2016) 63 Cal.4th 522, 615,
brackets in original.)
      The offense that was the basis for Howard’s felony-murder liability at
trial was the burglary of Pavon’s residence. At trial, the prosecution
established Patterson and Harris—with Howard’s assistance—burglarized
Pavon’s house; during the home invasion, Patterson shot Pavon. Defense


      3We agree with Howard that section 1170.95, subdivision (e) is not
ambiguous. “Statutory language is ambiguous when it is susceptible to more
than one reasonable interpretation.” (People v. Smith (2002) 95 Cal.App.4th
283, 298.) The language in subdivision (e) is general, but it is not susceptible
to more than one reasonable interpretation.

                                        12
counsel conceded as much in his closing argument, by acknowledging Pavon
was “murdered in her home” during a burglary. In our prior opinion, we
determined there was “ample evidence [Howard] aided and abetted a
residential burglary.” (Howard I, supra, A149081.) At trial, the evidence
was uncontroverted that the burglarized building was a residence. Therefore,
the offense underlying Howard’s felony-murder liability was first degree
burglary. (§ 459.)
      Howard posits a court “may have to examine” counsel’s “arguments to
determine precisely what the underlying felony was,” while also suggesting
the court may not look beyond the jury instructions and verdicts when
redesignating the underlying felony. (See Couzens et al., Sentencing Cal.
Crimes (The Rutter Group 2019) ¶ 23.51(K)(2), pp. 23-161 to 23-162.) We do
not delineate the scope of evidence the court may consider when designating
the underlying felony pursuant to section 1170.95, subdivision (e) because
that issue is not squarely before us.
      In our view, the absence of a first degree burglary instruction and
verdict did not preclude the court from redesignating Howard’s conviction as
first degree burglary, because the evidence at trial demonstrated beyond
any dispute the building was a residence. As Howard acknowledges, the
plain language of 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. Additionally, we question the practicality of requiring a
trial court to ignore evidence established at trial when designating the
underlying felony pursuant to section 1170.95, subdivision (e). (In re I.A.
(2020) 48 Cal.App.5th 767, 775 [examining evidence offered at contested
adjudication to determine whether the juvenile court’s section 1170.95



                                        13
subdivision (e) finding was supported by sufficient evidence; suggesting a
court cannot redesignate an offense “for which there is no support in the
record”].)
      To the extent Howard contends section 1170.95 subdivision (e)
requires the trial court to designate the lesser degree of the underlying
felony—even when the evidence at trial shows the commission of
the greater degree—we disagree. Subdivision (e) states the court
“redesignate[s] . . . the . . . underlying felony for resentencing purposes.”
(§ 1170.95, subd. (e).) It does not direct the court to impose the lesser degree
of the felony offense. Had the Legislature intended to dictate such a result,
“it easily could have done so.” (People v. Flores (2020) 44 Cal.App.5th 985,
993 [declining to expand section 1170.95 to include offenses not mentioned in
statute].) In construing a statute, “our office is simply to ascertain and
declare what the statute contains, not to change its scope by reading into it
language it does not contain or by reading out of it language it does. We may
not rewrite the statute to conform to an assumed intention that does not
appear in its language.” (Vasquez v. State of California (2008) 45 Cal.4th
243, 253.)
      We are mindful that in construing section 1170.95, we cannot consider
subdivision (e) in isolation. “Rules of statutory construction obligate us to
read a statute, and its various subdivisions, as a cohesive whole.” (People v.
Marcus (2020) 45 Cal.App.5th 201, 213–214; People v. Flores, supra,
44 Cal.App.5th at p. 995.) Like the parties, we look to other subdivisions
in the statute, specifically subdivision (d)(3), which concerns the
determination of the petitioner’s eligibility for statutory relief. Subdivision
(d)(3) contains express language regarding the prosecution’s burden to prove
the petitioner is not entitled to relief. It also identifies the evidence the court



                                        14
may consider when making an eligibility determination. (§ 1170.95, subd.
(d)(3).) Subdivision (e) contains no such language. Reading subdivision (d)(3)
and (e) together suggests the Legislature knew how to circumscribe the
court’s redesignation decisionmaking power and declined to do so.
Comparing 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).
      Moreover, our conclusion that section 1170.95 subdivision (e) did not
require the trial court to redesignate Howard’s conviction as second degree
burglary is consistent with the statute’s stated purpose, which is to
“eliminate[] lengthy sentences which have been declared incommensurate
with the culpability of defendants such as [Howard],” and instead punish a
defendant according to his “ ‘own level of individual culpability.’ ” (People v.
Ramirez, supra, 41 Cal.App.5th at pp. 933, 931.) By vacating Howard’s
murder conviction and designating that conviction as first degree burglary,
the court calibrated Howard’s punishment to his culpability for aiding and
abetting a residential burglary. (Ibid.)
      B.    No Violation of Section 1157
      Next, and relying on section 1157, Howard contends the court was
required to “fix the degree [of the conviction] at second degree.” That statute
provides that “[w]henever a defendant is convicted of a crime . . . which is
distinguished into degrees, the jury, or the court if a jury trial is waived,
must find the degree of the crime or attempted crime of which he is guilty.
Upon the failure of the jury or the court to so determine, the degree of the
crime or attempted crime of which the defendant is guilty, shall be deemed to
be of the lesser degree.”




                                        15
      Section 1157 did not compel the court to designate Howard’s conviction
as second degree burglary. Howard was not charged with, nor convicted of,
burglary. The question of the degree of burglary was not before the jury, so
Howard was not “ ‘convicted of a crime . . . which is distinguished into
degrees’ within the meaning of section 1157.” (People v. Mendoza, supra,
23 Cal.4th at p. 907.) The purpose of section 1157 is to “ ‘protect the
defendant from the risk that the degree of the crime could be increased after
the judgment.’ ” (People v. Jones (2014) 230 Cal.App.4th 373, 378.) There is
no such risk here. The degree of Howard’s crime has not been increased;
instead, his murder conviction has been vacated pursuant to an ameliorative
statute.
      Moreover, applying section 1157 would produce an absurd and unjust
result: it would bestow a windfall on Howard, by requiring the court to
designate a conviction for a crime unsupported by the evidence at trial and
incommensurate with Howard’s culpability. “This result would be ‘neither
just nor fair’ and would permit ‘ “form [to] triumph[ ] over substance.” ’ ”
(People v. Mendoza, supra, 23 Cal.4th at p. 911.)
      C.    No Apprendi Violation
      Third, Howard argues the court violated his federal constitutional
rights to a jury trial and due process when it redesignated the conviction as
first degree burglary. We disagree. The retroactive relief provided by section
1170.95 reflects an act of lenity by the Legislature “that does not implicate
defendants’ Sixth Amendment rights.” (People v. Anthony, supra,
32 Cal.App.5th at p. 1156; People v. Perez (2018) 4 Cal.5th 1055, 1063–1064
[retroactive application of Proposition 36, the Three Strikes Reform Act of
2012, is a legislative act of lenity that does not implicate Sixth Amendment
rights].)



                                       16
      Here, the process by which a trial court redesignates the underlying
felony pursuant to section 1170.95, 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. We reject Howard’s
argument that the residential burglary designation violated his
constitutional due process rights.
                                        III.
  The Court Properly Designated the First Degree Burglary Conviction as a
          Violent Felony and Imposed the Arming Enhancement
      At resentencing, the court designated the conviction as a violent felony
(§ 667.5, subd. (c)(21)) and imposed a one-year arming enhancement (§ 12022,
subd. (a)(1)). Howard challenges the violent felony designation, arguing
section 1170.95 does not authorize a trial court to impose an enhancement
that was not pled or proven. He also contends the arming enhancement is
invalid. According to Howard, when the court vacated the murder conviction,
it was required to vacate the arming enhancement attached to that
conviction. Howard’s claims require us to interpret the statute. Our review
is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123.)
      As an initial matter, the parties dispute whether the court resentenced
Howard pursuant to section 1170.95, subdivision (d)(1), or (d)(3). Howard
claims he was resentenced pursuant to subdivision (d)(3), which states that
when the prosecution fails to establish the petitioner is ineligible for relief,
the murder “conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be resentenced on
the remaining charges.” The Attorney General argues Howard was
resentenced pursuant to subdivision (d)(1), which directs the trial court to
“vacate the murder conviction and to . . . resentence the petitioner on any


                                        17
remaining counts in the same manner as if the petitioner had not been
previously . . . sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.”
      We need not resolve this dispute, nor parse the subparts of section
1170.95, subdivision (d). We adopt the holistic view of the statute taken by
Judge Couzens and Justice Bigelow, leading commentators on sentencing,
that “[i]n granting relief” pursuant to section 1170.95, “the court is to vacate
the underlying conviction and ‘any allegations and enhancements attached to
the conviction.’ [Citation.] It seems the intent of the Legislature is to place
the petitioner after resentencing in a situation where the murder and any
related enhancements no longer exist.” (Couzens et al., supra, Sentencing
Cal. Crimes, ¶ 23.51(K)(2), p. 23-160.) When the court vacated Howard’s
murder conviction, the arming enhancement (§ 12022, subd. (a)(1)) attendant
to that conviction was also vacated.
      When the court redesignates the murder conviction as the underlying
felony (§ 1170.95, subd. (e)), may the court impose enhancements relative to
that felony? As discussed above, section 1170.95 subdivision (e) is silent with
respect to how a court resentences a defendant after redesignating the
underlying felony. Consistent with the legislative goal of placing Howard
after resentencing in a situation where the murder and any related
enhancements no longer exist, Howard’s resentencing may not include count-
specific enhancements unless the People establish them related to the
underlying felony by evidence presented at the hearing on the section
1170.95 petition. Our conclusion finds support in the principle that “[t]o the
extent the court is determining the sentence to impose after striking the
murder conviction, the traditional latitude for sentencing hearings should be




                                       18
allowed.” (Couzens et al., supra, Sentencing Cal. Crimes, ¶ 23.51 (J)(2),
p. 23-157.)
      Here, the evidence proven at trial, and recited in Howard I, established
beyond any possible dispute that there was another person, other than an
accomplice, present in the residence during the burglary. (§ 667.5, subd.
(c)(21).) That person was Pavon, who was murdered. The evidence proven
at trial, and recited in our prior opinion, also established beyond any possible
dispute that Patterson was armed with a rifle, which he used to kill Pavon.
(§ 12022, subd. (a).) Howard does not argue otherwise. In our view, the
violent felony designation and arming enhancement were proper because the
evidence established those enhancements relative to the underlying felony,
burglary.
      When a court resentences a defendant pursuant to section 1170.95, the
only limitation is the new sentence cannot be greater than the original
sentence. (§ 1170.95, subd. (d)(1).) Howard’s new sentence is not greater
than his original sentence. Thus, it complies with section 1170.95,
subdivision (d)(1). As stated above, the purpose of section 1170.95 is to
punish a defendant commensurate with his individual culpability. Howard
aided and abetted a residential burglary, during which his accomplice shot
and killed an elderly woman. Designating Howard’s burglary conviction a
violent felony, and imposing the arming enhancement, furthers the purpose
of the statute.
      Howard points out that the violent felony designation was not alleged
and proven at trial, and that the arming enhancement was not found true as
to burglary, because the prosecution did not charge him with that offense.
We agree. But section 1170.95, subdivision (e) contemplates a situation
where the underlying felony is not charged, and the court redesignates the



                                       19
offense. By imposing the enhancements, the court was not, as Howard
claims, “re-open[ing] the charging stage of the case.” The court was
resentencing Howard pursuant to an ameliorative statute that authorized the
court to resentence Howard “as if [he] had not been previously . . . sentenced.”
(§ 1170.95, subd. (d)(1).)
                                DISPOSITION
      The judgment is affirmed.




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                                 _________________________
                                 Jones, P. J.


WE CONCUR:


_________________________
Simons, J.


_________________________
Needham, J.




A157285




                            21
Superior Court of Alameda County, Hon. Thomas C. Rogers

Tara Maria Mulay, under appointment by the Court of Appeal, for Defendant
and Appellant.

Xavier Becerra, Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, Donna M. Provenzano and David H. Rose, Deputy Attorneys
General, for Plaintiff and Respondent.




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