People v. Lewis

         [257 Cal.Rptr.3d 266] APPEAL from an order of the Superior Court of Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed. (Los Angeles County Super. Ct. No. TA117431)

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         COUNSEL

         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.

         OPINION

         ROTHSCHILD, P. J.

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         [257 Cal.Rptr.3d 267] A jury convicted defendant Vincent E. Lewis of first degree premeditated murder in 2012, and we affirmed the conviction in 2014.

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(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 ...