Opinion
E074254
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DEMOND ODELL LEWIS, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF099009) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On May 20, 2019, defendant and appellant Demond Odell Lewis filed a petition for resentencing under Penal Code section 1170.95 to vacate his conviction of premeditated attempted murder. Defendant alleged that an information "was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine" and that at trial, "I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine."
On June 4, 2019, the People filed a response arguing that the new law was unconstitutional, or in the alternative, defendant was ineligible for relief because he was convicted of attempted murder, not murder.
On November 15, 2019, the trial court dismissed defendant's petition under People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26, 2019, S258234. In Munoz, the court held that the changes in the law did not apply to attempted murder. (Id. at p. 754.)
On December 2, 2019, defendant filed a timely notice of appeal.
B. UNDERLYING CONVICTION
On December 6, 2002, an amended information charged defendant with premeditated attempted murder under Penal Code sections 664 and 187, subdivision (a). The information also alleged that defendant personally and intentionally discharged a firearm causing great bodily injury under Penal Code section 12022.53, subdivision (d); that defendant personally inflicted great bodily injury under Penal Code section 12022.7; and that the offense was committed for the benefit of a criminal street gang under Penal Code section 186.22, subdivision (b). The information further alleged that defendant suffered two prior convictions that qualified as serious felonies and strikes under Penal Code sections 667, subdivision (a), 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
On February 27, 2003, a jury found defendant guilty as charged and the enhancement allegations as true. The trial court found true the prior conviction allegations.
On April 3, 2003, defendant was sentenced to 45 years to life for attempted murder, enhanced by 25 years to life for the firearm discharge allegations.
Defendant filed an appeal. On July 9, 2004, in case No. E033480, we ordered the matter remanded for resentencing after vacating the true finding on one of the prior conviction allegations.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error:
1. "Whether the trial court erred in finding [defendant]'s conviction of attempted murder precluded relief under [Penal Code] section 1170.95."
2. "Whether the trial court's denial of [defendant]'s petition constituted prejudicial error."
We offered defendant an opportunity to file a personal supplemental brief. On March 13, 2020, he filed a motion for extension of time to file his supplemental brief until April 18, 2020. We granted his request but defendant has not filed a brief. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and find no arguable issue for reversal on appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.