People v. Lewis CA2/5 ( 2023 )

Filed 12/21/23 P. v. Lewis CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B328722
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144866)
v.
ARTHUR LEE LEWIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Carol J. Najera, Judge. Affirmed.
California Appellate Project and Richard B. Lennon,
Executive Director, under appointment by the Court of Appeal,
for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
Arthur Lee Lewis appeals the trial court’s order denying
his petition for vacatur of his murder conviction and resentencing
under Penal Code section 1172.6.1
In 2019, Lewis was convicted of voluntary manslaughter.
(§ 192) The jury found that he personally discharged a firearm
causing death (§ 12022.53, subd. (d)) and that he committed the
crime for the benefit of or in association with a criminal street
gang (§ 186.22, subd. (b)(1)(C)). Lewis was sentenced to 21 years
in prison.
In 2021, this court affirmed the conviction. (People v. Lewis
(Apr. 15, 2021, No. B302108) [nonpub. opn.].)
In 2018, Senate Bill No. 1437 (2017–2018 Reg. Sess.) was
enacted. The legislation amended sections 188 and 189, and
added former section 1170.95 (now § 1172.6). (Stats. 2018, ch.
1015, §§ 2–4.) Senate Bill No. 1437 limited application of the
felony murder rule and eliminated murder based on the natural
and probable consequences doctrine. Through former section
1170.95, Senate Bill No. 1437 also created a procedure by which a
defendant previously convicted of murder under either of those
theories could file a petition for resentencing. Former section
1170.95 became effective on January 1, 2019.
Effective January 1, 2022, Senate Bill No. 775 (2021–2022
Reg. Sess.) amended former section 1170.95 to expand its reach
to defendants convicted of manslaughter, including persons
convicted under a “theory under which malice is imputed to a
person based solely on that person’s participation in a crime.”
(former § 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.)
1 All further references are to the Penal Code.
2
In 2022, Lewis filed his section 1172.6 petition.2 The trial
court appointed counsel and held a hearing. The court denied
Lewis’s petition for failure to make a prima facie case because the
jury found Lewis was the actual killer. Lewis timely appealed.
Lewis’s counsel filed a brief indicating he could find no
arguable issues to raise on appeal and requesting that this court
follow the procedures set forth in People v. Delgadillo (2022) 14
Cal.5th 216, 231–232.
On August 15, 2023, we sent Lewis a letter informing him
of his right to file a supplemental brief. Lewis personally filed a
brief raising two issues: (1) while conceding that he is the actual
killer, he argues that he is eligible for resentencing because he
did not intend to kill the victim or act with malice, and (2) his due
process rights were violated because the trial court sentenced
him to the upper term rather than the middle term.
We reject Lewis’s arguments and find that appellate
counsel correctly concluded there are no arguable issues. First,
Lewis was convicted as the actual killer. He is prima facie
ineligible for relief under section 1172.6 because his conviction is
still valid following the amendments to sections 188 and 189
made on January 1, 2019. (People v. Garcia (2022) 82
Cal.App.5th 956, 969.) Second, a petition for resentencing filed
pursuant to section 1172.6 is limited to the issues implicated by
that statute (see, e.g., People v. DeHuff (2021) 63 Cal.App.5th
428, 438); a section 1176.2 petition is not the proper vehicle for
other challenges to the trial court’s sentencing determinations.
2 Effective June 30, 2022, former section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
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DISPOSITION
The trial court’s order denying the petition for resentencing
under section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting, P. J.
KIM, J.
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