People v. Lewis

• Citation: 43 Cal.App.5th 1128,257 Cal.Rptr.3d 265
• Decision Date: 06 January 2020
• Docket Number: B295998
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vincent E. LEWIS, Defendant and Appellant.

43 Cal.App.5th 1128

257 Cal.Rptr.3d 265

The PEOPLE, Plaintiff and Respondent,

v.Vincent E. LEWIS, Defendant and Appellant.

B295998

Court of Appeal, Second District, Division 1, California.

File January 6, 2020

Robert Bacon, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Amanda V. Lopez and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

A jury convicted defendant Vincent E. Lewis of first degree premeditated murder in 2012, and we affirmed the conviction in 2014.

( People v. Lewis (July 14, 2014, B241236) 2014 WL 3405846 [nonpub. opn.] ( Lewis ).)¹ In January 2019, defendant filed a petition for resentencing under Penal Code ² section 1170.95 and requested the appointment of counsel. The trial court, relying on our prior decision in Lewis , found that defendant was ineligible for relief and denied the petition without appointing counsel or holding a hearing. Defendant appealed. For the reasons set forth below, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and two codefendants were tried for the murder of a fellow gang member. One of the codefendants allegedly fired the shots that killed the victim. The People prosecuted the case against defendant on three alternative first degree murder theories: direct aiding and abetting; aiding and abetting under the natural and probable consequences doctrine;³ and conspiracy. The prosecutor argued to the jurors that the evidence could support a verdict under each murder theory and that they did not have to agree on the same theory to return a guilty verdict. The court instructed the jury on each of the prosecution’s theories. The jury convicted defendant of first degree premeditated murder in a general verdict and made no findings that indicate which murder theory it relied upon. The court sentenced defendant to 25 years to life.

In his direct appeal, defendant asserted that the court erred by instructing the jury that it could find him guilty of premeditated first degree murder based on the natural and probable consequences doctrine. The argument had merit. While his appeal was pending, our Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ), which held that "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles." ( Id. at pp. 158–159, 172 Cal.Rptr.3d 438, 325 P.3d 972.)⁴ The error, the court stated, requires reversal unless the reviewing court concludes "beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder." ( Chiu , supra , 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; see also In re Martinez (2017) 3 Cal.5th 1216, 1218, 226 Cal.Rptr.3d 315, 407 P.3d 1.) Although we agreed with defendant that it was error to give the natural and probable consequences instruction, we held that the error was harmless "beyond a reasonable doubt" based on "strong evidence" that defendant "directly aided and abetted [the perpetrator] in the premeditated murder of [the victim]." ( Lewis , supra , B241236 at p. 19.) We rejected defendant’s other arguments and affirmed the judgment. ( Id. at p. 20.)

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, among other changes, amended section 188 to eliminate liability for murder under the natural and probable consequences doctrine. ( Lopez , supra , 38 Cal.App.5th at pp. 1092–1093.) The legislation also added section 1170.95, which establishes a procedure for vacating murder convictions that were based upon the natural and probable consequences doctrine and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.)

On January 7, 2019, defendant filed a petition in the superior court for resentencing under section 1170.95. In accordance with the statute, defendant identified the superior court’s case number and the year of his conviction and stated that he had been "convicted of [first or second] degree murder pursuant to ... the natural and probable consequences doctrine." Defendant further stated that, because of the changes made by Senate Bill No. 1437, he "could not now be convicted" because he "was not the actual killer" and "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree." Defendant also requested the court to appoint counsel for him.

On February 4, 2019, the trial court denied the petition without appointing counsel for defendant or holding a hearing. The court concluded that defendant was not eligible for resentencing because, based on our opinion in Lewis , he "would still be found guilty with a valid theory of first degree murder."

Defendant contends that the court erred by "going behind [the] allegations" in his petition and relying on our prior opinion to determine that he failed to make a prima facie showing of eligibility under Senate Bill No. 1437. For the reasons given below, we disagree.

DISCUSSION

A. Senate Bill No. 1437 and Section 1170.95

Senate Bill No. 1437 was enacted "to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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 underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1(f), p. 6674; see People v. Martinez (2019) 31 Cal.App.5th 719, 723, 242 Cal.Rptr.3d 860.)⁵ The legislation accomplished this in part by amending section 188 to require that, when the felony murder rule does not apply, a principal in the crime of murder shall act with malice aforethought, and that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2, p. 6675; In re R.G. (2019) 35 Cal.App.5th 141, 144, 247 Cal.Rptr.3d 24.)⁶ As a result, the natural and probable consequences doctrine can no longer be used to support a murder conviction. ( Lopez , supra , 38 Cal.App.5th at p. 1103 & fn. 9 ; Stats. 2018, ch. 1015, § 1(f), p. 6674.) The change did not, however, alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily "know and share the murderous intent of the actual perpetrator." ( People v. McCoy (2001) 25 Cal.4th 1111, 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210 ; see Chiu , supra , 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972 [a direct aider and abettor "acts with the mens rea required for first degree murder"].) One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.

Senate Bill No. 1437 also added section 1170.95, which permits a person convicted of murder under a natural and probable consequences theory to petition the court to have the murder conviction vacated and to be resentenced. ( § 1170.95, subds. (a) & (e) ; Stats. 2018, ch. 1015, § 4, pp. 6675-6677). Thus, section 1170.95 subdivision (a) provides that a person convicted of felony murder or murder under a natural and probable consequences theory may petition the trial court to have his or her murder conviction vacated or be resentenced on any remaining counts if the following conditions are met: (1) A charging document was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) The petitioner was convicted of first or second degree murder following a trial or an accepted plea; and (3) The petitioner could "not be convicted of first or second degree murder because of changes to Section[s] 188 or 189" made by Senate Bill No. 1437. ( § 1170.95, subd. (a).)

Under section 1170.95, subdivision (b), the petition must include: a declaration from the petitioner that he or she is eligible for relief under the statute, the superior court’s case number and year of conviction, and a statement as to whether the petitioner requests appointment of counsel. ( § 1170.95, subd. (b)(1).) If any of the required information is missing and cannot "readily [be] ascertained by the court, the court may deny the petition without prejudice to the filing of another petition." ( § 1170.95, subd. (b)(2).)

Section 1170.95, subdivision (c) sets forth the trial court’s responsibilities upon the filing of a complete petition: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served.... If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." ( § 1170.95, subd. (c).)

If the court issues an order to show cause, it shall hold a hearing to determine whether to vacate the murder conviction. ( § 1170.95, subd. (d).) At that hearing, the prosecution has the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. ( § 1170.95, subd. (d)(3).) The prosecutor and petitioner "may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid. )⁷ Thus, "relief must be denied if the People...