Filed 1/19/22 P. v. Lewis CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B313176
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142561)
v.
GEORGE LEWIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys
General, for Plaintiff and Respondent.
_____________________
George Lewis appeals from a postjudgment order denying
his petition for resentencing under Penal Code section 1170.951
as to his 2016 conviction of first degree murder. Lewis contends,
the People concede, and we agree the trial court erred by failing
to appoint counsel and afford the parties an opportunity to file
briefs, and by summarily denying Lewis’s petition before issuing
an order to show cause and holding an evidentiary hearing
pursuant to section 1170.95, subdivision (d). However, the error
is harmless because Lewis is ineligible as a matter of law. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
We described the 2016 killing of Jose Raya and the
attempted murder of Reann Lott in our prior opinion in People v.
Booker (2020) 58 Cal.App.5th 482 (Booker). On the evening of
December 17, 2016, Lott and Raya drove in Lott’s car to a liquor
store to buy beer. As Lott walked to the entrance of the liquor
store, she noticed a white car with tinted windows parked in a lot
on the side of the building. Inside the liquor store, Raya talked to
a friend he saw inside the store while Lott walked into another
aisle to get beer.
Lewis and codefendants Damon Lamar Booker, William
Weaver, Jeremiah Stone, and Marcus Posey entered the store
together, then separated and moved throughout the store. As the
men spoke to one another, Lott heard the men use a slang word
commonly used by members of the Crips street gang. The men
1 All statutory references are to the Penal Code.
2
stared at Raya, who was talking to his friend. Raya’s friend
asked the men where they were from. One of the men answered
“Fruit Town,” to which Raya’s friend responded he “was cool with
them.” Raya was not a member of any gang. Shortly thereafter,
the five men left together without buying anything. Surveillance
video of the interior of the liquor store taken the night of the
shooting showed Booker, Lewis, Weaver, Stone, and Posey in the
store.
When Raya and Lott left the store, the white car with
tinted windows was no longer parked in the lot. The two
returned to Lott’s car. Raya drove, and Lott was in the front
passenger seat. As they drove down 130th Street toward Lott’s
home, Lott noticed a white car following closely behind their car.
Lott said to Raya, “[T]hey look like they’re about to hit us.” Raya
stopped at a stop sign or stop light. The white car pulled up next
to Lott’s car on the driver’s side “within seconds” of Raya
stopping the car. Lott recognized the car was the same white car
from outside the liquor store. Raya told Lott to duck down, which
she did. As she ducked, Lott saw a hand emerge from the front
passenger window of the white car, and she heard five shots fired
at Lott’s car. Lott was not hit, but Raya was killed. The white
car and a black car in front of it drove off.
Booker, Lewis, Weaver, Stone, and Posey were later
arrested in connection with the murder. In his recorded
interview with two police detectives, Lewis admitted he knew
Booker, Weaver, Stone, and Posey, and they were all members of
the Poccet Hood gang. But Lewis claimed he was in Las Vegas on
the night of the shooting. On January 18, 2018 Deputy District
Attorney Brian Kang and Los Angeles County Sherriff’s
3
Department Detective Kasey Woodruff interviewed Posey.2
Posey admitted that at about 5:00 on the night of the shooting,
he, Stone, Weaver, Booker, and Lewis went in three cars to the
liquor store. The liquor store was located on the border of Poccet
Hood and rival gang territory. When Posey entered the store, he
went down an aisle toward the back of the store while Booker,
Weaver, and Lewis went toward the cash register where “the guy
banged on them or whatever.” Posey did not hear Booker, Lewis,
Weaver, or Stone say anything in response.
When they left the store, Posey and Stone got in Stone’s
car; Weaver into his car; and Booker and Lewis into Booker’s car,
with Booker in the driver’s seat. Weaver pulled out, and Stone
followed. They turned on 130th Street, where Booker had pulled
his car over. Lewis and Booker switched seats, with Lewis now
in the driver’s seat. Lewis also took off his gray sweatshirt and
gave it to Booker, who put it on. According to Posey, a gang
member would switch clothing with another “[t]o cover [his] self.”
A white car then passed by, and all three cars followed it down
130th Street, first Lewis, then Weaver, then Stone. At the
intersection of 130th Street and Wilmington Avenue, Booker
2 At the outset of the interview, the deputy district attorney
presented Posey with a proffer agreement, which Posey signed.
At trial, Posey answered “I don’t remember” to every question the
prosecutor asked regarding the night of December 17, 2016.
Weaver and Stone testified after being offered use immunity.
However, Weaver responded to all the prosecutor’s questions
with “I don’t know,” “I don’t remember,” or “I plead the 5th.”
When the prosecutor asked Stone about the liquor store incident,
Stone repeatedly responded, “I can’t recall, sir.”
4
stuck his arm out of the window and “started shooting . . . into
the white car.” Posey heard five to seven shots. The three cars
left the scene.
Lewis testified in his defense that he never lived in Poccet
Hood territory but began associating with the gang during high
school. Lewis admitted he was a member of the gang and the
liquor store was “in the hood.” On the day of the shooting, the
five men went to the liquor store, but Lewis claimed he drove his
own car, a burgundy Impala. Booker, Stone, and Weaver drove
their own cars and followed each other to the store. Lewis parked
on the street. Lewis did not remember hearing anyone in the
liquor store say “[w]here you from.” When Lewis left, he did not
talk to his friends, and he drove by himself to the house of the
father of his sister’s child. Lewis did not hear any gunshots. But
he admitted speaking separately with Booker, Weaver, and Stone
by phone “within minutes” after the shooting. Lewis returned to
Las Vegas after staying two days in California.
B. The Verdict and Sentencing
The jury found Booker and Lewis guilty of first degree
murder; attempted willful, deliberate, and premeditated murder;
and shooting at an occupied vehicle. The jury also found true
that Booker and Lewis committed the offenses for the benefit of,
at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)), and Booker or a principal personally used a
firearm, personally and intentionally discharged a firearm, and
personally and intentionally discharged a firearm causing great
bodily injury or death (§ 12022.53, subds. (b), (c), (d) & (e)(1)).
After a bifurcated trial, the trial court found true the prior
conviction allegations against Booker and Lewis. The court
5
sentenced Booker and Lewis to aggregate terms of 170 years to
life in state prison.
C. Lewis’s Appeal
Lewis and Booker appealed, arguing, among other grounds,
that the trial court prejudicially erred in instructing the jury on
the “kill zone” theory of concurrent specific intent to prove
attempted murder in light of the Supreme Court’s holding in
People v. Canizales (2019) 7 Cal.5th 591, 596-597). We agreed
the trial court committed prejudicial error in instructing the jury
on the kill zone theory and reversed the attempted murder
convictions. We otherwise affirmed. (Booker, supra,
58 Cal.App.5th at p. 486).3
D. Lewis’s Petition for Resentencing and the Superior Court’s
Ruling
On May 19, 2021 Lewis, representing himself, filed a form
petition for resentencing seeking to vacate his murder conviction
and be resentenced in accordance with recent statutory changes
relating to accomplice liability for murder. In his petition, Lewis
declared he “was convicted of 1st or 2nd degree murder pursuant
to the felony murder rule or the natural and probable
consequences doctrine,” and he “could not now be convicted of 1st
or 2nd degree murder because of changes made to Penal Code
§§ 188 and 189, effective January 1, 2019.” He also checked the
box on the form stating he was not the actual killer and did not
act with the intent to kill. Lewis requested the court appoint him
3 It does not appear from the record that Booker and Lewis
were retried for the attempted murders.
6
counsel during the resentencing process. Lewis attached to his
petition multiple exhibits, including his declaration (stating he
was the driver, not the shooter), the jury instructions on murder
and aiding and abetting, and the verdict forms.
On June 1, 2021 the superior court, without appointing
counsel for Lewis, summarily denied the petition, finding Lewis
ineligible for resentencing under section 1170.95. The court
explained, “The petitioner was convicted by a jury of first degree
murder on December 28, 2018. As petitioner points out in his
moving papers, the only theory of first degree murder was willful,
deliberate, and premediated murder. The jury was never
instructed as to natural and probable consequences. The jury
was never instructed as to felony murder. The only way the jury
could have found the defendant guilty of murder was by way of
an express malice theory. The only way the jury could have
found Petitioner guilty of first degree murder is by way of the
same theory. Pursuant to Penal Code Section 1170.95(a) the
petitioner is not eligible for resentencing.” (Capitalization
omitted.)
Lewis timely appealed.
DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) eliminated the natural and probable consequences doctrine
as a basis for finding a defendant guilty of murder and
significantly limited the scope of the felony-murder rule. (People
v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile
(2020) 10 Cal.5th 830, 842-843, 847-848 (Gentile).) New
7
section 188, subdivision (a)(3), provides, “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” New section 189, subdivision (e), in
turn, limits the felony-murder rule exception to the malice
requirement for aiders and abettors to circumstances where the
People prove the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.”
Senate Bill 1437 also provides a procedure in new
section 1170.95 for an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder under Senate Bill 1437’s changes to
sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; Gentile,
supra, 10 Cal.5th at pp. 842-843.) If the section 1170.95 petition
contains all the required information, including a declaration by
the petitioner that he or she was convicted of murder and could
not now be convicted of murder because of changes to section 188
or 189 (§ 1170.95, subd. (b)(1)(A)), the court must appoint counsel
to represent the petitioner upon his or her request pursuant to
section 1170.95, subdivision (b)(3).4 (Lewis, at pp. 959-960.)
4 Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 551, § 2) amended section 1170.95, effective January 1, 2022,
to, among other changes, (1) apply section 1170.95 to convictions
for voluntary manslaughter and attempted murder; (2) add new
subdivision (b)(3), which requires the appointment of counsel at
the prima facie review stage if requested; (3) affirm the standard
8
Further, upon the filing of a facially sufficient petition, the court
must direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply, and the court must
determine whether the petitioner has made a prima facie
showing that he or she is entitled to relief. (See § 1170.95,
subd. (c); Lewis, at p. 964.)
In determining whether the petitioner has made a prima
facie showing he or she is entitled to relief under section 1170.95,
subdivision (c), “[l]ike the analogous prima facie inquiry in
habeas corpus proceedings, ‘“the 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.”’ [Citations.] ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
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.”’” (Lewis, supra, 11 Cal.5th at p. 971.)
If the petitioner makes a prima facie showing under
section 1170.95, subdivision (c), the court must issue an order to
show cause and hold a hearing “to determine whether to vacate
the murder conviction and to recall the sentence and resentence
of proof at the order to show cause hearing is proof beyond a
reasonable doubt; and (4) clarify that “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.”
9
the petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).)
If a hearing is held, “[t]he prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
Gentile, supra, 10 Cal.5th at p. 853.)
B. The Trial Court Erred in Summarily Denying Lewis’s
Petition Without Appointing Counsel and Affording an
Opportunity for Briefing, but the Error Was Harmless
Lewis contends, the People concede, and we agree the trial
court erred in summarily denying his petition without first
appointing him counsel and affording his attorney an opportunity
to file a brief because Lewis had filed a facially sufficient petition.
(Lewis, supra, 11 Cal.5th at p. 963 [“[P]etitioners who file a
complying petition requesting counsel are to receive counsel upon
the filing of a compliant petition.”].) Because Lewis checked all
the boxes on his form petition necessary to show he was eligible
for relief, the superior court erred by denying his petition without
first appointing counsel.
However, the superior court’s failure to appoint counsel at
the prima facie stage of review is state law error reviewable under
the standard in People v. Watson (1956) 46 Cal.2d 818, 836, in
which we review whether the defendant has “‘demonstrate[d]
there is a reasonable probability that in the absence of the error
he . . . would have obtained a more favorable result.’” (Lewis,
supra, 11 Cal.5th at p. 974; see People v. Farfan (2021)
71 Cal.App.5th 942, 956 [error in not appointing counsel before
denying facially sufficient petition was harmless because
defendant was ineligible for relief as a matter of law based on
jury’s 2016 felony-murder-special-circumstance finding]; People v.
10
Mancilla (2021) 67 Cal.App.5th 854, 864, 866 [error in not
appointing counsel before denying facially sufficient
section 1170.95 petition was harmless error because conviction of
provocative act murder necessarily required proof defendant
personally harbored malice].) Here, the superior court’s error was
harmless because Lewis was ineligible for relief as a matter of
law.
Lewis contends the superior court’s error was not harmless
because the jury was instructed with CALJIC No. 8.25.1 on drive-
by murder, which allowed the jury to convict Lewis based on
imputed malice in light of the instruction’s requirement that the
perpetrator intend to inflict death, without requiring that an
aider and abettor intend to kill. The trial court instructed the
jury that “[m]urder which is perpetrated by means of discharging
a firearm from a motor vehicle intentionally at another person
outside of the vehicle when the perpetrator specifically intended
to inflict death, is murder of the first degree. [¶] The essential
elements of drive-by murder are: [¶] 1. The defendant
committed the crime of murder; [¶] 2. The defendant
perpetrated the murder by means of discharging a firearm from a
motor vehicle intentionally at another person outside of the
vehicle; and [¶] 3. The defendant specifically intended to kill a
human being.”5
Lewis argues that CALJIC No. 8.25.1, by requiring that the
“perpetrator specifically intended to inflict death,” allows a
5 The jury was also instructed with CALJIC 8.20 on
deliberate and premeditated murder with express malice
aforethought and CALJIC No. 8.25 on murder by means of lying
in wait, but Lewis concedes that if he was convicted on either of
these theories, he would not be entitled to relief.
11
defendant to be convicted of a drive-by-murder based on his or
her aiding and abetting a shooter who (as the perpetrator)
intended to kill, even if the aider and abettor did not have an
intent to kill. It is true that the drive-by murder instruction
refers to the intent to kill of the perpetrator (the shooter). But
Lewis could only be convicted as an aider and abettor if, as the
trial court’s instruction of the jury with CALJIC No. 3.01
explained, he “aid[ed], promote[d], encourage[d] or instigate[d]
the commission of the crime” with knowledge of the unlawful
purpose of the perpetrator and “[w]ith the intent or purpose of
committing or encouraging or facilitating the commission of the
crime.” Thus, as a direct aider and abettor, he must have shared
the intent of the perpetrator (Booker) to kill.
Because the jury was not instructed on felony murder or
the natural and probable consequences doctrine, Lewis’s
conviction as a direct aider and abettor of the murder of Raya
with the intent to kill is a still-valid theory under Senate Bill
No. 1437. (See People v. Daniel (2020) 57 Cal.App.5th 666, 677
[because the jury was not instructed on felony murder or the
natural and probable consequences doctrine, error in not
appointing counsel was harmless error], review dismissed, cause
remanded (Dec. 1, 2021, No. S266336).) Therefore, the superior
court’s error in failing to appoint counsel and afford counsel an
opportunity to file a brief supporting Lewis’s petition was
harmless because there is no “reasonable probability that in the
absence of the error he . . . would have obtained a more favorable
result.’” (Lewis, supra, 11 Cal.5th at p. 974; see People v. Watson,
supra, 46 Cal.2d at p. 836.)
12
DISPOSITION
The order denying Lewis’s petition for resentencing under
section 1170.95 is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
13