People v. Lewis CA1/2

Filed 10/14/24 P. v. Lewis CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A168606 v. DERRICE TRAY LEWIS, (Napa County Super. Ct. No. CR142480) Defendant and Appellant.

Derrice Tray Lewis appeals from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.6. He contends the trial court erred in denying the petition based on the preliminary hearing transcript, without issuing an order to show cause. The People agree that the trial court erred. We also agree and remand the case to the trial court to issue an order to show cause and hold an evidentiary hearing. BACKGROUND I. The Original Case Lewis and codefendant Donovan Pierre were charged in 2008 with murder (Pen. Code,1 § 187, subd. (a)) and second degree robbery (§ 211) and

Further statutory references will be to the Penal Code except as 1

otherwise specified.

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held to answer after a preliminary hearing. Evidence at the preliminary hearing showed that Lewis and Pierre planned to commit a robbery to get money to get Lewis’s sister out of jail. Lewis confronted the victim and threw him to the ground, and both Lewis and Pierre kicked and punched him. Lewis took money, a cell phone and marijuana from the victim. The victim died from blunt force injury to his head, the cumulative effect of multiple blows. An information filed on March 13, 2009, charged Lewis and Pierre with one count of murder (§ 187, subd. (a)), alleged to have been personally committed with intent to inflict great bodily injury (§ 1203.075), and one count of second degree robbery (§ 211). It was alleged that Lewis was over 14 years of age (Welf. & Inst. Code, § 602, subd. (b)) and that a special circumstance applied. (§ 190.2.) On September 15, 2009, Lewis pleaded no contest to first degree murder, with an agreed sentence of 25 years to life, and admitted he was 16 years old at the time of the offense, in exchange for dismissal of the robbery count and great bodily injury enhancement. Based on the preliminary hearing, the trial court found a factual basis that the murder was committed in the course of a robbery. On October 20, 2009, the court sentenced Lewis in accordance with the plea agreement. II. Resentencing Proceedings “Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who