People v. Lemeur CA4/1

Filed 2/9/22 P. v. Lemeur CA4/1
Opinion following transfer from Supreme Court
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076846
Plaintiff and Respondent,
v. (Super. Ct. No. SWF026931)
STEVEN EUGENE LEMEUR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside, John D.
Molloy, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters
and Julie L. Garland, Assistant Attorneys General, Meredith S. White and
Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Steven Eugene Lemeur was convicted of one count of premeditated
attempted murder (Pen. Code,1 §§ 187, subd. (a), 664), among other offenses.
In 2019, he petitioned to vacate his attempted murder conviction and obtain
resentencing under section 1170.95. The trial court found section 1170.95 did
not apply to his attempted murder conviction and dismissed the resentencing
petition. We affirmed the summary dismissal order on the same grounds,
and the Supreme Court granted review. (People v. Lemeur (Oct. 23, 2020,
D076846) [nonpub. opn.].)
While the case was pending review, the Governor signed Senate Bill
No. 775 (2020–2021 Reg. Sess.) into law. Senate Bill No. 775 amended
section 1170.95 to “[c]larif[y] that persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and the natural
probable consequences doctrine are permitted the same [resentencing] relief
as those persons convicted of murder under the same theories.” (Stats. 2021,
ch. 551, § 1(a).) After Senate Bill No. 775 went into effect, the Supreme
Court transferred the case to our court with instructions to vacate our prior
decision and reconsider the cause in light of Senate Bill No. 775.
Upon reconsideration, we conclude Lemeur remains ineligible for
resentencing under amended section 1170.95. Therefore, we once again
affirm the order summarily denying his resentencing petition.
1 Further undesignated statutory references are to the Penal Code.
2
II
BACKGROUND
A
The following factual background is taken from our opinion in People v.
Lemeur (Oct. 1, 2012, D060131) [nonpub. opn.].
“Cory Smith and Lisha Blakley were injecting themselves
with heroin in the bathroom of the apartment of Aaron King
when Lemeur and [codefendant Timothy Aaron] True burst in
and attacked Smith. During the attack, True stabbed Smith
several times. Smith lost a great deal of blood and was treated at
a hospital for five life-threatening stab wounds to the chest.
“Until approximately two months before the stabbing,
Smith had been a member of a White supremacist gang. Before
the stabbing, Smith also had met members of another White
supremacist gang, the COORS[] Family Skins (CFS), through
Blakley; he socialized with them, but declined an invitation to
join the gang. Smith later learned the CFS ‘felt disrespected’ by
his declination of the invitation, and he ‘got[ ] in fights with
skinheads’ over the matter. Some CFS members also accused
Smith of being a ‘rat’ or a ‘snitch’ in connection with the police
investigation of certain theft offenses that occurred at a house
where Smith was residing.
“[¶] . . . [¶]
“The People charged defendants with the willful, deliberate
and premeditated attempted murder of Smith (... §§ 187,
subd. (a), 189, 664…); burglary (§ 459); and active participation
in a criminal street gang (§ 186.22, subd. (a)).
“With respect to the attempted murder and burglary
charges, the People alleged defendants committed those offenses
for the benefit of, at the direction of, or in association with a
criminal street gang with the specific intent to promote, further
and assist criminal conduct by gang members. (§ 186.22,
subd. (b).)
“The People alleged True personally used a deadly and
dangerous weapon (a knife) in the commission of the attempted
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murder (§ 12022, subd. (b)(1)), and personally inflicted great
bodily injury on Smith in the commission of the attempted
murder and the burglary (§ 12022.7, subd. (a)).
“As part of the burglary charge, the People alleged that at
the time of the offense, a person other than an accomplice was
present in the residence. (§ 667.5, subd. (c)(21).)
“Finally, the People alleged Lemeur had a prior conviction
of arson (§ 451, subd. (b)), for which he had served a prison term
(§ 667.5, subd. (b)) and which qualified as a prior serious felony
(§ 667, subd. (a)) and a strike under the Three Strikes law
(§§ 667, subds. (b)–(i), 1170.12).
“The jury found defendants guilty of all charges; fixed the
degree of burglary as first; and found true all the special
allegations against them, except the prior conviction allegations
against Lemeur, which the trial court found true in a separate
bench trial.
“The court sentenced True to prison for an aggregate
[prison] term of 19 years to life…. [¶] The court sentenced
Lemeur to an aggregate prison term of 35 years to life.”
(People v. Lemeur, supra, D060131.)
On direct appeal, our court affirmed the judgments. (People v. Lemeur,
supra, D060131.) The Supreme Court denied review on January 3, 2013.
B
In 2019, Lemeur filed a petition in the trial court seeking resentencing
of his premeditated attempted murder conviction under section 1170.95.
The People responded to the resentencing petition. They argued the
court should deny the petition because section 1170.95 applied only to
petitioners who were convicted of felony murder or murder under a natural
and probable consequences theory—not petitioners like Lemeur, who were
convicted of premeditated attempted murder.
4
The court appointed counsel for Lemeur and, with the assistance of
counsel, Lemeur filed a reply brief in support of his resentencing petition.
The court held a hearing and summarily denied Lemeur’s resentencing
petition without issuing an order to show cause. It reasoned Lemeur’s
conviction did not qualify for relief under section 1170.95.
Lemeur appealed and this court affirmed the order summarily denying
his resentencing petition. (People v. Lemeur, supra, D076846.) We reasoned
summary dismissal was warranted because “section 1170.95 applie[d] only to
murder convictions,” not attempted murder convictions. (Ibid.)
The Supreme Court granted review and deferred further action
pending consideration and disposition of a related issue in People v. Lopez,
S258175. In that case, the Supreme Court granted review to consider, among
other issues, whether Senate Bill No. 1437 (2017–2018 Reg. Sess.), the law
that implemented section 1170.95, “appl[ied] to attempted murder liability
under the natural and probable consequences doctrine ….”
C
While the case was pending review, Senate Bill No. 775 was signed into
law, effective January 1, 2022. According to the Legislative Counsel’s Digest,
the Legislature enacted Senate Bill No. 775, among other reasons, to “allow a
person who was convicted of … attempted murder under the natural and
probable consequences doctrine … to apply to have their sentence vacated
and be resentenced if, among other things, the complaint, information, or
indictment was filed to allow the prosecution to proceed under a theory of …
attempted murder under the natural and probable consequences doctrine.”
(Legis. Counsel’s Dig., Sen. Bill No. 775 (2021–2022 Reg. Sess.).)
Amended section 1170.95 provides as follows: “(a) A person convicted
of felony murder or murder under the natural and probable consequences
5
doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted murder under the
natural and probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts when all of the following conditions
apply: [¶] (1) A complaint, information, or indictment was filed against the
petitioner 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, or attempted murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of
murder, attempted murder, or manslaughter following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could have been convicted of
murder or attempted murder. [¶] (3) The petitioner could not presently be
convicted of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.”2 (§ 1170.95, subd. (a).)
A resentencing petition must include “(A) A declaration by the
petitioner that the petitioner is eligible for relief … based on all the
requirements of [section 1170.95,] subdivision (a). [¶] (B) The superior court
case number and year of the petitioner’s conviction. [¶] (C) Whether the
petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1).) “If
a petition fails to comply with subdivision (b)(1), ‘the court may deny the
2 The changes to sections 188 and 189 “eliminated natural and probable
consequences liability for murder as it applies to aiding and abetting, and
limited the scope of the felony murder rule.” (People v. Lewis (2021) 11
Cal.5th 952, 957 (Lewis).)
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petition without prejudice to the filing of another petition.’ (§ 1170.95,
subd. (b)(2).)” (Lewis, supra, 11 Cal.5th at p. 960.)
“Where the petition complies with subdivision (b)’s three requirements,
then the court proceeds to subdivision (c) to assess whether the petitioner has
made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra,
11 Cal.5th at p. 960.) When deciding whether a petitioner has made a prima
facie case, the trial court may rely on the petitioner’s record of conviction.
(Id. at pp. 970–971.) “ ‘[I]f the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the petition,” then “the
court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Id. at p. 971.) Generally, an appellate opinion is “considered
to be part of the record of conviction.” (Id. at p. 972.) A court may also “rely
on the jury instructions, which are part of the record of conviction, in
assessing the prima facie showings under section 1170.95(c). [Citation.] The
jury instructions given at a petitioner’s trial may provide ‘readily
ascertainable facts from the record’ that refute the petitioner’s showing, and
reliance on them to make the eligibility or entitlement determinations may
not amount to ‘factfinding involving the weighing of evidence or the exercise
of discretion.’ ” (People v. Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto).)
If the trial court determines a prima facie case for relief has been made,
it must issue an order to show cause, and then hold a hearing “to determine
whether to vacate the murder, attempted murder, or manslaughter
conviction and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not previously
been sentenced, provided that the new sentence, if any, is not greater than
the initial sentence.” (§ 1170.95, subd. (d)(1).)
7
III
DISCUSSION
A
After Senate Bill No. 775 went into effect, the Supreme Court
transferred the present case back to our court with instructions to vacate our
prior decision affirming the summary dismissal of Lemeur’s resentencing
petition, and to reconsider the cause in light of Senate Bill No. 775.
Lemeur filed a supplemental opening brief, the People filed a
supplemental responding brief, and Lemeur filed a supplemental reply brief
without obtaining leave of court.
B
There is no dispute that Lemeur’s codefendant, True, was the direct
perpetrator of the attempted murder. Because he was the direct perpetrator,
the jury only could have convicted Lemeur of premeditated attempted murder
under one of the following bases of liability: (1) direct aiding and abetting
principles; or (2) the natural and probable consequences doctrine.3
If the record of conviction shows the jury found Lemeur guilty as a
direct aider and abettor, the jury necessarily would have found that he
harbored an intent to kill, and Lemeur could not make a prima facie case for
relief. (See People v. Lee (2003) 31 Cal.4th 613, 624 [“to be guilty of
attempted murder as an aider and abettor, a person must give aid or
encouragement with knowledge of the direct perpetrator’s intent to kill and
with the purpose of facilitating the direct perpetrator’s accomplishment of the
intended killing—which means that the person guilty of attempted murder as
3 Felony murder principles are not at issue here. “For the felony-murder
rule to apply, there must be a killing. (See § 189.) Thus, the rule is
inapplicable to attempted murder, as well as aiding and abetting an
attempted murder.” (In re Lucero (2011) 200 Cal.App.4th 38, 51.)
8
an aider and abettor must intend to kill”]; People v. Beeman (1984) 35 Cal.3d
547, 560 [“When the definition of the offense includes the intent to do some
act or achieve some consequence beyond the actus reus of the crime [citation],
the aider and abettor must share the specific intent of the perpetrator.”].)
However, if the record of conviction fails to show the jury convicted him as a
direct aider and abettor, he would be entitled to an order to show cause.
The record of conviction conclusively shows the jury found Lemeur
guilty of premediated attempted murder as a direct aider and abettor. In
particular, the jury instructions from Lemeur’s criminal trial show the jury
received instructions on aiding and abetting (CALJIC 3.01) and accomplice
liability (CALJIC 3.10); however, it received no instructions on the natural
and probable consequences doctrine.4 Based on these instructions, the jury
could not have convicted Lemeur under a natural and probable consequences
theory of liability. Therefore, as a matter of law, Lemeur is not entitled to
resentencing. (See People v. Daniel (2020) 57 Cal.App.5th 666, 678 [jury
instructions showed petitioner was not entitled to resentencing as a matter of
law]; Soto, supra, 51 Cal.App.5th at p. 1055 [petitioner did not make prima
facie showing under section 1170.95 because jury instructions showed he was
not convicted of murder under natural and probable consequences doctrine];
accord People v. Rivera (2021) 62 Cal.App.5th 217, 236–237 [“The fact that a
petitioner was not ‘convicted of felony murder or murder under a natural and
probable consequences theory’ at trial may be conclusively determined if, for
example, the jury did not receive instructions on either theory.”].)
4 The People requested judicial notice of the jury instructions from
Lemeur’s trial, which were part of the appellate record in the direct appeal
from Lemeur’s conviction. We grant the request for judicial notice. (Evid.
Code, §§ 452, 459, subd. (a); see People v. Vizcarra (2015) 236 Cal.App.4th
422, 426 fn. 1 [judicially noticing appellate record from prior appeal].)
9
Lemeur concedes the jury was not instructed on the natural and
probable consequences doctrine. However, he speculates “the prosecutor may
have argued the natural and probable consequences to the jury” during
closing arguments. Further, he postulates the jury “might have asked for
clarification on the law applicable to aiding and abetting” during jury
deliberations, and the court “might have responded by instructing them on an
additional natural and probable consequences theory of liability ….”
Even if we reach the merits of Lemeur’s arguments—which he raised
for the first time in a supplemental reply brief filed without leave of court—
they would not change the outcome. Regardless of whether the prosecution
mentioned the natural and probable consequences doctrine during closing
arguments—and there is no indication in the record that the prosecution did
so—we “ ‘presume that jurors treat the court’s instructions as a statement of
the law by a judge, and the prosecutor’s comments as words spoken by an
advocate in an attempt to persuade.’ ” (People v. Cortez (2016) 63 Cal.4th
101, 131.) As noted, those instructions were limited solely to direct aiding
and abetting principles—not the natural and probable consequences doctrine.
Further, Lemeur himself does not even contend that the prosecution
argued the natural and probable consequences doctrine to the jury, or that
the jury asked the court for clarification on aiding and abetting principles, or
that the court responded to a jury note with an instruction on the natural and
probable consequences doctrine. He points to nothing in the record of
conviction showing or implying that the jury relied on a natural and probable
consequences doctrine. Instead, he theorizes that the jury might have done
so. In light of the aiding and abetting instructions that were actually given to
the jury, we are not persuaded that Lemeur is entitled to an order to show
cause based solely on unsupported conjecture.
10
Because the jury instructions show the jury was instructed solely on
direct aiding and abetting principles—not the natural and probable
consequences doctrine—the record of conviction demonstrates, as a matter of
law, that the jury convicted Lemeur as a direct aider and abettor to
premediated attempted murder. For that reason, Lemeur has failed to make
a prima facie case for relief under section 1170.95.
IV
DISPOSITION
The order is affirmed.
McCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
IRION, J.
11