People v. Lewis CA2/4 ( 2023 )

Filed 12/15/23 P. v. Lewis CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B328045
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA032791-02)
v.
LONNIE LEWIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Joseph J. Burghardt, Judge. Affirmed.
Mi Kim, under appointment by the Court of Appeal, and Lonnie Lewis,
in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In 1999, defendant Lonnie Lewis (Lewis) was convicted of second
degree murder and attempted murder after a jury trial. His conviction was
affirmed on direct appeal. In 2022, Lewis filed a petition for recall and
resentencing under former Penal Code section 1170.95.1 The trial court
denied the petition, concluding Lewis was ineligible for relief as a matter of
law.
On appeal, appellate counsel filed a brief that summarized the
procedural history with citations to the record, raised no issues, and asked
this court to independently review the record pursuant to People v. Delgadillo
(2022) 14 Cal.5th 216. Lewis submitted his own letter brief and requested
that this court address one issue. We address Lewis’s issue and affirm the
order.
PROCEDURAL BACKGROUND
In 1999, a jury found Lewis guilty of second degree murder (Pen. Code,
§ 187, subd. (a); count 1) and attempted murder (Pen. Code, §§ 664/187, subd.
(a); count 2).2 As to both counts, the jury found true the allegation that
during the commission of the offenses a principal was armed with a firearm
(§ 12022, subd. (a)(1)) but found not true the allegation that Lewis personally
and intentionally discharged a firearm (§ 12022.5, subd. (a)(1)). As to count
2, the jury found not true the allegation that the attempted murder was
1 Effective June 30, 2022, the Legislature renumbered section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive
changes to the statute.
2 All undesignated statutory references are to the Penal Code.
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willful, deliberate, and premeditated. (§ 664, subd. (a).) The court sentenced
Lewis to 58 years to life in state prison.
In 2001, this court affirmed Lewis’s convictions. (People v. Lewis (July
6, 2001, B138676) [nonpub. opn.].)
In March 2020, Lewis filed, in pro. per., a petition for resentencing
under section 1172.6. The trial court denied the petition, without appointing
counsel, finding that Lewis failed to establish a prima facie case that he was
entitled to relief.
In March 2022, Lewis filed again, in pro. per., a petition for
resentencing. The court appointed counsel. On January 6, 2023, the trial
court summarily denied the petition, reasoning that the jury was instructed
on aiding and abetting, that express malice was required for both counts 1
and 2, and that attempted murder requires intent to kill. The court also
stated that the jury was not instructed on either felony murder, the natural
and probable consequences doctrine, or any imputed-malice theory.
Lewis filed a timely notice of appeal.
DISCUSSION
A. Governing Principles
Senate Bill No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability
under the felony-murder rule, eliminated the natural and probable
consequences doctrine as it relates to murder, and eliminated convictions for
murder based on a theory under which malice is imputed to a person based
solely on that person’s participation in a crime. (See generally People v. Reyes
(2023) 14 Cal.5th 981; People v. Lewis (2021) 11 Cal.5th 952, 957, 959
(Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) Senate
Bill No. 1437 (SB 1437) added section 189, subdivision (e) (limiting
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application of the felony-murder rule) and section 188, subdivision (a)(3)
(stating that “to be convicted of murder, a principal in a crime shall act with
malice aforethought” and “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime”). As amended by Senate Bill No.
775, effective January 1, 2022, these ameliorative changes to the law now
expressly apply to attempted murder and voluntary manslaughter.
SB 1437 also created a procedure, codified at section 1172.6, for a
person convicted of murder, attempted murder, or voluntary manslaughter
under the former law to be resentenced if the person could no longer be
convicted of those crimes under the current law. (Lewis, supra, 11 Cal.5th at
p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that
procedure by filing a petition containing a declaration that, among other
things, the defendant could not presently be convicted of murder, attempted
murder, or voluntary manslaughter under the current law. (People v. Strong
(2022) 13 Cal.5th 698, 708.) If a petition establishes a prima facie case for
relief, the trial court must appoint counsel if requested, issue an order to
show cause, and hold an evidentiary hearing. (Strong, at pp. 708–709;
§ 1172.6, subds. (b)(3), (c), & (d)(1).)
Where a trial court denies a section 1172.6 petition based on the failure
to make a prima facie case for relief, our review is de novo. (See People v.
Drayton (2020) 47 Cal.App.5th 965, 981, overruled in part on another ground
in Lewis, supra, 11 Cal.5th at pp. 962–970.)
B. Analysis
In his letter brief, Lewis contends his right to due process was violated
when his codefendants entered a plea during jury selection. Lewis argues the
entry of his codefendants’ plea during jury selection caused the prosecution to
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change its theory of the case. This due process argument is a collateral
attack on the judgment and outside the purview of section 1172.6 relief.
(People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 “entitle[s a
petitioner] to resentencing only if [the defendant] is able to make [a] prima
facie showing that [the petitioner] ‘could not be convicted . . . because of
changes to [s]ection 188 or 189” and “does not permit a petitioner to establish
eligibility on the basis of alleged trial error”].) Because Lewis has not
presented any cognizable arguments on appeal, we must affirm the trial
court’s order. (People v. Davis (1996) 50 Cal.App.4th 168, 172 [“a trial court’s
order/judgment is presumed to be correct, error is never presumed, and the
appealing party must affirmatively demonstrate error on the face of the
record”].)
DISPOSITION
The trial court’s postjudgment order denying Lewis’s section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
COLLINS, J.
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