People v. Howard

• Decision Date: 16 June 2020
• Docket Number: A157285
• Citation: 50 Cal.App.5th 727,264 Cal.Rptr.3d 388
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donnie HOWARD, Defendant and Appellant.

50 Cal.App.5th 727

264 Cal.Rptr.3d 388

The PEOPLE, Plaintiff and Respondent,

v.Donnie HOWARD, Defendant and Appellant.

A157285

Court of Appeal, First District, Division 5, California.

Filed June 16, 2020

Tara Maria Mulay, San Francisco, 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.

Jones, P. J.

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, 2018 WL 2426453) [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 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. 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 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. 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 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 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...