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Name: People v. Fouse (2024) 98 Cal.App.5th 1131
Case #: F085131
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/18/2024
Summary

Where defendant’s attempted murder convictions were vacated under Penal Code section 1172.6, and the target offense of robbery was charged, subdivision (d)(3) required the trial court to resentence defendant on the remaining charges rather than redesignating her convictions as other offenses under subdivision (e). In 2006, a jury convicted defendant 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. Defendant, who was the getaway driver, petitioned for resentencing under section 1172.6 and was found not culpable of the attempted murders under the amended law. The trial court vacated the two attempted murder convictions and, over defendant’s objection, 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). Defendant appealed. Held: Reversed. Section 1172.6, subdivision (d)(3) provides that when an attempted murder conviction is no longer valid under the amended law, the prior conviction “shall be vacated and the petitioner shall be resentenced on the remaining charges.” In contrast, section 1172.6, subdivision (e) provides that “[t]he 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.” (Italics added.) Here, defendant was convicted of attempted murder under a natural and probable consequences theory, and it was undisputed that the target offense of robbery was charged. Because defendant was charged and convicted of the target offenses, section 1172.6, subdivision (d)(3) required the court to resentence defendant on the remaining charges. It did not permit the court to redesignate the offenses, as the redesignation procedure under section 1172.6, subdivision (e) does not apply where the target offenses were charged.