California Court of Appeals, Second District, First Division
from an order of the Superior Court of Los Angeles County,
No. TA117431 Ricardo R. Ocampo, Judge. Affirmed.
Bacon, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
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)
[nonpub. opn.] (Lewis).) In January 2019,
defendant filed a petition for resentencing under Penal
Code 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.
AND PROCEDURAL BACKGROUND
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; 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.
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 (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.) 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; see also In re
Martinez (2017) 3 Cal.5th 1216, 1218.) 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.)
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.)
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.
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.”
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.
Senate Bill No. 1437 ...