People v. Lewis CA1/2 ( 2024 )

Filed 10/14/24 P. v. Lewis CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A168606
v.
DERRICE TRAY LEWIS, (Napa County
Super. Ct. No. CR142480)
Defendant and Appellant.
Derrice Tray Lewis appeals from the trial court’s denial of his petition
for resentencing pursuant to Penal Code section 1172.6. He contends the
trial court erred in denying the petition based on the preliminary hearing
transcript, without issuing an order to show cause. The People agree that the
trial court erred. We also agree and remand the case to the trial court to
issue an order to show cause and hold an evidentiary hearing.
BACKGROUND
I.
The Original Case
Lewis and codefendant Donovan Pierre were charged in 2008 with
murder (Pen. Code,1 § 187, subd. (a)) and second degree robbery (§ 211) and
Further statutory references will be to the Penal Code except as
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otherwise specified.
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held to answer after a preliminary hearing. Evidence at the preliminary
hearing showed that Lewis and Pierre planned to commit a robbery to get
money to get Lewis’s sister out of jail. Lewis confronted the victim and threw
him to the ground, and both Lewis and Pierre kicked and punched him.
Lewis took money, a cell phone and marijuana from the victim. The victim
died from blunt force injury to his head, the cumulative effect of multiple
blows.
An information filed on March 13, 2009, charged Lewis and Pierre with
one count of murder (§ 187, subd. (a)), alleged to have been personally
committed with intent to inflict great bodily injury (§ 1203.075), and one
count of second degree robbery (§ 211). It was alleged that Lewis was over 14
years of age (Welf. & Inst. Code, § 602, subd. (b)) and that a special
circumstance applied. (§ 190.2.)
On September 15, 2009, Lewis pleaded no contest to first degree
murder, with an agreed sentence of 25 years to life, and admitted he was 16
years old at the time of the offense, in exchange for dismissal of the robbery
count and great bodily injury enhancement. Based on the preliminary
hearing, the trial court found a factual basis that the murder was committed
in the course of a robbery. On October 20, 2009, the court sentenced Lewis in
accordance with the plea agreement.
II.
Resentencing Proceedings
“Effective January 1, 2019, the Legislature passed Senate Bill
[No.] 1437 ‘to amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability
is not imposed on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying felony who
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acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).)” (People v. Lewis (2020) 11 Cal.5th 952, 959 (Lewis).) Pursuant to
section 1172.6 (formerly section 1170.95), persons convicted of murder prior
to these amendments may seek relief in the trial court if they could not be
convicted of murder under the current murder statutes. (Stats. 2018,
ch. 1015, § 4; Stats. 2022, ch. 58, § 10.)
On December 28, 2022, Lewis filed a pro per petition for resentencing
pursuant to section 1172.6, alleging, as relevant, that an information had
been filed against him that allowed the prosecution to proceed under a theory
of felony murder, murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime; he accepted a plea offer in
lieu of a trial at which he could have been convicted of murder; and he could
not presently be convicted of murder because of changes made to sections 188
and 189. An accompanying declaration argued the evidence was insufficient
to support his conviction, there was no evidence the fatal blow was delivered
by him, rather than his older, taller and bigger codefendant, and the court
should “forestall a claim of ineffective assistance of counsel . . . for counsel
persuading [Lewis] to plead guilty to first degree murder.” Lewis requested
that the court appoint counsel to represent him, and the court did so.
The People’s reply argued that Lewis failed to make a prima facie
showing that he could not be convicted of murder under current law because
he did not allege facts so demonstrating and the arguments he presented
were not relevant to the issue. The People further argued that Lewis could
be convicted under present law because the facts demonstrated that he acted
with implied malice, as required under section 188, and that he was a major
participant in the robbery and acted with reckless indifference to human life,
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as required under section 189. The People’s response attached a copy of the
preliminary hearing transcript.
At a hearing on August 18, 2023, after reading aloud a number of
excerpts of testimony from the preliminary hearing transcript, the trial court
concluded Lewis failed to make a prima facie showing of eligibility for relief.
The court explained that Lewis “very well could have been convicted of First
or Second Degree Murder” and “there may well be a finding that he was a
major participant in the underlying felony and acted with reckless
indifference to human life.” The court denied Lewis’s petition.
Lewis filed a timely notice of appeal.
DISCUSSION
The process for seeking retroactive relief under section 1172.6 “begins
with the filing of a petition containing a declaration that all requirements for
eligibility are met (id., subd. (b)(1)(A)), including that ‘[t]he petitioner could
not presently be convicted of murder or attempted murder because of changes
to [Penal Code] Section 188 or 189 made effective January 1, 2019 . . . .’ ”
(People v. Strong (2022) 13 Cal.5th 698, 708, quoting section 1172.6,
subd. (a)(3).) The trial court “must evaluate the petition ‘to determine
whether the petitioner has made a prima facie case for relief.’ (§ 1172.6,
subd. (c); [citations].) If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition. (See § 1172.6, subd. (c); Lewis, [supra, 11 Cal. 5th] at
pp. 970-972.) If, instead, the defendant has made a prima facie showing of
entitlement to relief, ‘the court shall issue an order to show cause.’ ” (Strong,
at p. 708, quoting § 1172.6, subd. (c).)
“If there has been ‘a prior finding by a court or jury that the petitioner
did not act with reckless indifference to human life or was not a major
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participant in the felony, the court shall vacate the petitioner’s conviction and
resentence the petitioner.’ ([§ 1172.6], subd. (d)(2).) Additionally, the parties
may stipulate that the petitioner is eligible for resentencing. (Ibid.)
Otherwise, the court must hold an evidentiary hearing at which the
prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder’ under state law as
amended by Senate Bill [No.] 1437. (§ 1172.6, subd. (d)(3).) ‘A finding that
there is substantial evidence to support a conviction for murder, attempted
murder, or manslaughter is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.’ (Ibid.) ‘If the prosecution
fails to sustain its burden of proof, the prior conviction, and any allegations
and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.’ (Ibid.)” (Strong,
supra, 13 Cal.5th at pp. 708-709.)
The trial court may rely on the record of conviction in determining
whether a prima facie showing has been made. (Lewis, supra, 11 Cal.5th at
p. 970.) The record of conviction may include the preliminary hearing
transcript. (People v. Reed (1996) 13 Cal.4th 217, 223.) But the prima facie
inquiry is “limited”: “ ‘ “[T]he court takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the petitioner
would be entitled to relief if his or her factual allegations were proved. If so,
the court must issue an order to show cause.” ’ ([People v.] Drayton [(2020)]
47 Cal.App.5th [965,] 978, quoting Cal. Rules of Court, rule 4.551(c)(1)).) ‘[A]
court should not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’ (Drayton,
fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456.) ‘However, if the
record, including the court’s own documents, “contain[s] facts refuting the
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allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.” ’ (Drayton, at p. 979,
quoting Serrano, at p. 456.)” (Lewis, at p. 971.)
Lewis was charged with murder committed “unlawfully, and with
malice aforethought.” This is a “generic charge permitting the prosecution to
proceed on any theory of murder,” including felony murder or the natural and
probable consequences doctrine. (People v. Rivera (2021) 62 Cal.App.5th 217,
234; People v. Flores (2022) 76 Cal.App.5th 974, 987; People v. Contreras
(2013) 58 Cal.4th 123, 147 [information need not specify theory of murder on
which prosecution relies at trial].) In pleading no contest to first degree
murder, Lewis did not admit or stipulate to any specific facts or theory of
murder. While the trial court found a factual basis for Lewis’s plea, and “that
this murder was committed in the course of a robbery,” based on the
preliminary hearing transcript, Lewis did not stipulate to the facts presented
at the preliminary hearing or otherwise admit the truth of that evidence.
The question whether a trial court engaged in impermissible fact
finding by relying on the preliminary hearing transcript to deny a
section 1172.6 petition at the prima facie stage is currently pending before
the California Supreme Court. (People v. Patton, review granted June 28,
2023, S279670.) The Court of Appeal in Patton held the preliminary hearing
transcript irrefutably established the defendant was convicted as the actual
perpetrator of an attempted murder because uncontroverted evidence showed
the defendant was the sole shooter. (People v. Patton (2023) 89 Cal.App.5th
649, 657-658.) Other cases have reached similar conclusions. (E.g., People v.
Mares (2024) 99 Cal.App.5th 1158, 1161, review granted May 1, 2024,
S284232; People v. Pickett (2023) 93 Cal.App.5th 982, 990, review granted
Oct. 11, 2023, S281643.)
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In other cases, courts have concluded that trial courts engaged in
impermissible factfinding by denying a section 1172.6 petition at the prima
facie stage based on preliminary hearing testimony when the defendant did
not admit facts conclusively refuting eligibility for resentencing and the
record did not otherwise definitively establish ineligibility. (E.g., People v.
Estrada (2024) 101 Cal.App.5th 328, 340; People v. Davenport (2021)
71 Cal.App.5th 476, 481-482; People v. Flores, supra, 76 Cal.App.5th at
pp. 991-992; People v. Rivera, supra, 62 Cal.App.5th at pp. 234-235, 239.) We
agree with these cases. The trial court in the present case relied on
preliminary hearing testimony that supported a finding he could be convicted
under present law, but Lewis never admitted the truth of that evidence. As
the People concede, to conclude based on the preliminary hearing evidence,
“even if uncontroverted, that [Lewis] could still be convicted of murder under
current law, the trial court would have to make . . . factual
findings/credibility determinations.” Since Lewis’s allegation that he could
not currently be convicted of a homicide offense was not refuted by the record
conclusively establishing every element of the offense, the trial court was
required to accept the allegation as true (People v. Curiel (2023) 15 Cal.5th
433, 463; Strong, supra, 13 Cal.5th at p. 708) and erred in finding him
ineligible for relief as a matter of law.
DISPOSITION
The order denying Lewis’s section 1172.6 petition is reversed. The
matter is remanded to the superior court with directions to issue an order to
show cause and hold an evidentiary hearing on Lewis’s petition.
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STEWART, P.J.
We concur.
RICHMAN, J.
MILLER, J.
People v. Lewis (A168606)
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