People v. Lewis

          APPEAL from an order of the Superior Court of Los Angeles County, No. TA117431 Ricardo R. Ocampo, Judge. Affirmed.

          Robert Bacon, 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) [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 (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.)^[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; 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.)

         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 ...