Opinion
G062241
12-14-2023
THE PEOPLE, Plaintiff and Respondent, v. MARK LORWAY LEWIS, Defendant and Appellant.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 02CF2617, Scott A. Steiner, Judge.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
A jury convicted defendant Mark Lorway Lewis of one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and one count of criminal threats (§ 422; count 4). As to count 1, the jury found true three enhancement allegations: (1) defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); (2) defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); and (3) the attempted murder was willful, deliberate, and premeditated (§ 664, subd. (a)). Defendant also pleaded guilty to one count of possession of a controlled substance (Health &Saf. Code, 11377, subd. (a); count 3.)
All further statutory references are to the Penal Code unless otherwise stated.
The court sentenced defendant to 32 years to life in state prison as follows: (1) Seven years on count 1; and (2) a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) on count 1. The court also struck the three-year term for the great bodily injury enhancement pursuant to section 12022.7, struck punishment on count 3, and stayed sentence on counts 2 and 4 pursuant to section 654.
After another panel of this court affirmed the judgment but modified the sentence, the trial court vacated the seven years to life sentence on count 1 and resentenced defendant to life with the possibility of parole, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). (People v. Lewis (May 27, 2005, G034615) [nonpub. opn.].) The trial court further imposed the midterm on counts 2 and 4 and stayed execution of sentence pursuant to section 654.
In July 2022, defendant filed a petition for resentencing under former section 1170.95 (now § 1172.6). The trial court summarily denied defendant's petition for resentencing. Defendant timely filed a notice of appeal. Consistent with Anders v. California (1967) 386 U.S. 738, appointed counsel identified the following issues to assist in our independent review: (1) whether defendant's conviction of a willful, deliberate, and premeditated attempted murder is sufficient, as a matter of law, to render him ineligible for resentencing; (2) whether the trial court improperly relied on the statement of facts from this court's opinion in defendant's prior appeal; and (3) whether the trial court improperly relied on the jury's true finding as to the section 12022.53, subdivision (d) firearm enhancement. Defendant was given the opportunity to file written argument on his own behalf, but he has not done so. Although defendant has not filed a supplemental brief, we exercise our discretion to conduct an independent review of the record and appointed counsel's brief. (People v. Delgadillo (2022) 14 Cal.5th 216, 232.)
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
We have examined the entire record and have not found an arguable issue on appeal. Accordingly, we affirm the postjudgment order.
FACTS
In July 2022, defendant filed a petition for resentencing. In his petition, defendant averred: "1. A complaint, information, or indictment was filed against me 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. [Citation.] [¶] 2. I was convicted of murder, attempted murder, or manslaughter following a trial or I accepted a plea offer in lieu of a trial at which I could have been convicted of murder or attempted murder. [Citation.] [¶] 3. I could not presently be convicted of murder or attempted murder because of changes made to [sections] 188 and 189, effective January 1, 2019."
The court appointed counsel for defendant, received additional briefing from the prosecution, and conducted a prima facie hearing. The court then denied defendant's petition for resentencing. The court held defendant was the actual perpetrator and was not convicted of attempted murder under the natural and probable consequences doctrine. The court noted the jury did not receive any instructions on natural and probable consequences and the prosecution did not rely on this theory. The court also stated the jury was not presented with any theory of "'extended liability' in the form of aiding and abetting or conspiracy liability." Instead, the court emphasized: "[I]nasmuch as the jury found it to be true that [defendant] personally discharged a firearm causing great bodily injury within the meaning of . . . section 12022.53[, subdivision (d)], the record abundantly supports the conclusion that the [defendant] was the actual perpetrator and is guilty of attempted murder under current law." Finally, the court indicated it had reviewed the information, abstract of judgment, minute orders, jury instructions, verdict forms, and our prior appellate decision.
DISCUSSION
Relief under section 1172.6 is restricted to those convicted of murder "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 ...." (Id., subd. (a)(1).) Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) amended section 1172.6 to expand resentencing eligibility to persons convicted of attempted murder. In determining whether the petitioner has made a prima facie case for relief under section 1172.6, the trial court may rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971.) The record of conviction includes the court's own documents, including "the trial evidence, the jury instructions, and closing arguments of counsel." (People v. Lopez (2022) 78 Cal.App.5th 1, 13.) As our Supreme Court explained, "The record of conviction will necessarily inform the trial court's prima facie inquiry . . . allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, at p. 971.)
Here, defendant's petition is without merit because the record of conviction established he was not convicted of attempted murder under a natural and probable consequences theory. The information alleges defendant "did willfully, unlawfully and with malice aforethought attempt to murder" the victim. It further alleges defendant did so "willfully, deliberately and with premeditation ...." The jury also was never instructed on the natural and probable consequences doctrine or any theory of aiding and abetting liability. Instead, the jury was instructed: "The prosecution of count 1 is based on the act of discharging a firearm at [the victim]. Do not consider the [d]efendant's act of driving his truck at the victim as a possible theory of attempted murder." The jury was further instructed it could find the deliberation and premeditation allegation on the attempted murder count true if defendant "weigh[ed] and consider[ed] the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide[d] to kill and [made] a direct but ineffectual act to kill another human being." The instructions also stated the attempted murder had to be "preceded and accompanied by a clear, deliberate intent to kill." The record accordingly demonstrates defendant was not convicted based upon felony murder, the natural and probable consequences theory, or other theory under which malice is imputed.
As noted ante, appointed counsel questions whether defendant's conviction of a willful, deliberate, and premeditated attempted murder is sufficient, as a matter of law, to render him ineligible for resentencing. But the trial court did not only rely on defendant's conviction. It considered the information and the jury instructions. Appointed counsel also questions whether the trial court improperly relied on the facts in our prior appellate opinion. The court did not err and merely indicated it had reviewed the information, abstract of judgment, minute orders, jury instructions, verdict forms, and our prior appellate decision. The record otherwise does not suggest the trial court engaged in improper fact finding at the prima facie stage. (People v. Lewis, supra, 11 Cal.5th at p. 972 [noting appellate opinions are part of the record of conviction but their probative value is case specific, and trial courts cannot engage in factfinding at the prima facie stage]; § 1172.6, subd. (d)(3) [an appellate opinion is relevant insofar as it establishes "the procedural history of the case"].) Finally, appellate counsel questions whether the trial court improperly relied on the jury's true finding on the section 12022.53, subdivision (d) enhancement. A sentence enhancement under section 12022.53, subdivision (d) for personally and intentionally discharging a firearm and proximately causing great bodily injury or death does not preclude relief under section 1172.6 because the enhancement "does not require the prosecution to prove that the defendant harbored a particular mental state as to the victim's injury or death." (People v. Offley (2020) 48 Cal.App.5th 588, 598.) But here, the jury's true finding on this enhancement confirms defendant was the actual perpetrator. The other jury instructions and findings establish defendant had the requisite intent to kill.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: MOORE, ACTING P. J., MOTOIKE, J.