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Name: People v. Patterson (2024) 99 Cal.App.5th 1215
Case #: F086065
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/26/2024

Defendant’s murder conviction could not be redesignated as a first degree residential burglary because that was not the “underlying felony” (Pen. Code, § 1172.6(e)) of defendant’s felony murder conviction. Defendant filed a section 1172.6 resentencing petition to vacate his murder conviction, and the court determined he was eligible for relief. Although defendant had been convicted under a theory of felony murder, with attempted robbery as the underlying felony, the trial court redesignated his murder conviction to attempted robbery and first degree residential burglary. Defendant appealed. Held: Reversed. Under section 1172.6(e), a “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.” It is clear as a matter of plain language that subdivision (e) only permits redesignation of a felony murder conviction to the underlying felony(ies) on which the defendant’s felony murder conviction was actually based. First, “underlying felony” does not refer to any and all felonies the defendant committed, but rather only those that “underlie” the felony murder. Second, the use of a definite article in the phrase “the . . . underlying felony” further suggests it refers to the specific felony that actually underlied the defendant’s murder conviction at trial. To determine the felony(ies) on which the felony murder conviction was actually based, the court can look to jury instructions, verdicts, and stipulations between the parties. In light of the jury instructions given, it is clear that attempted robbery was the underlying felony in defendant’s case. Burglary was not an underlying felony, as the court did not instruct on it or refer to it in the verdict forms. Thus, the trial court erred in redesignating defendant’s conviction as a burglary conviction.