Opinion
B329869
07-26-2024
THE PEOPLE, Plaintiff and Respondent, v. KEITH DWAYNE LEWIS, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA406579 H. Clay Jacke II, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION AND PROCEDURAL BACKGROUND
In 2014, a jury convicted defendant and appellant Keith Dwayne Lewis of two counts of willful, deliberate and premeditated attempted murder. (Pen. Code, §§ 664, 187, subd. (a).) The trial court found true the allegation that Lewis sustained a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court sentenced Lewis to consecutive terms of life with the possibility of parole on each attempted murder count, with each life term enhanced by 25 years to life under section 12022.53, subdivisions (d) and (e)(1). The court additionally sentenced Lewis to a determinate term of 18 years, consisting of an eight-year upper term on an assault with a firearm count (§ 245, subd. (a)(2)), a five-year gang enhancement (§ 186.22, subd. (b)(1)(B)), and a five-year prior serious felony enhancement (§ 667, subd. (a)(1)).
All undesignated statutory references are to the Penal Code. The jury also found Lewis guilty of assault with a firearm (§ 245, subd. (a)(2)) and found various firearm and gang allegations true, though none of those findings have any direct bearing on this appeal.
In 2022, Lewis filed a petition for resentencing under former section 1170.95. The trial court appointed counsel on Lewis's behalf. The prosecution filed an opposition, arguing Lewis was ineligible for relief as a matter of law because the record of conviction demonstrated the jury was never instructed on the natural and probable consequences doctrine. The prosecution noted the jury was only instructed on the theory that Lewis was a direct aider and abettor in the attempted murders who harbored the intent to kill. Along with its opposition, the prosecution attached the jury instructions from Lewis's trial. The trial court denied Lewis relief as a matter of law, noting the record demonstrated the jury was never instructed on the natural and probable consequences doctrine nor any other theory of imputed-malice liability.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For the sake of simplicity, we will refer to the statute by its new code section. That section provides relief for certain individuals convicted of attempted murder under the natural and probable consequence doctrine. (See § 1172.6.)
Lewis timely appealed, and we appointed counsel to represent him. On February 5, 2024, appellate counsel filed a brief raising no issues and requesting discretionary independent review of the record under People v. Delgadillo (2022) 14 Cal.5th 216. On March 6, 2024, Lewis filed a supplemental brief.
DISCUSSION
In his brief, Lewis argues: (1) the trial court erred by denying him relief as a matter of law because he filed a facially valid petition; and (2) the court erred by holding the prima facie hearing without him present. We are unpersuaded.
As the trial court correctly explained, Lewis's jury was never instructed on the natural and probable consequences nor any other imputed-malice theory of liability. Indeed, a review of the jury instructions reveals that, in order to convict Lewis of attempted murder, the jury necessarily needed to find beyond a reasonable doubt that he aided and abetted the attempted murders while harboring the intent to kill. Because the record shows the jury convicted Lewis of attempted murder under a theory that is still valid under current law (i.e., express malice), the trial court was correct in concluding Lewis is ineligible for section 1172.6 relief as a matter of law. For these reasons, we reject Lewis's assertion that the court erred in denying him relief as a matter of law.
Nor are we persuaded by Lewis's argument that remand is appropriate because he was not present at his prima facie hearing. First, the statute contains no requirement that the petitioner be given the opportunity to be present at the prima facie hearing. (See § 1172.6, subds. (b) &(c).) Second, even if Lewis had been present at his hearing, because he is ineligible for section 1172.6 relief as a matter of law, his presence would have had no bearing on the outcome of his case. In short, because Lewis is ineligible for relief under the plain language of the statute, there is no chance he can receive a more favorable outcome, and remand is unwarranted.
In addition to rejecting the arguments Lewis raised in his supplemental brief, we have exercised our discretion to independently review the record, and we conclude no arguable issues exist. (See People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
We affirm the order denying Lewis section 1172.6 relief.
We concur: COLLINS, J. MORI, J.