People v. Lewis CA3

Filed 12/29/20 P. v. Lewis CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C091066

Plaintiff and Respondent, (Super. Ct. No. 98F07013)

v.

CARL LEWIS,

Defendant and Appellant.

Defendant Carl Lewis appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95,1 arguing the trial court incorrectly found that his conviction for first degree murder with a burglary-murder special circumstance precluded his eligibility for relief. We will affirm the trial court’s order.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND In 2000, defendant was convicted of burglary (§ 459), robbery (§ 211), and first degree murder (§ 187, subd. (a)). (People v. Lewis et al. (Jan. 8, 2002, C034860) [nonpub. opn.] (Lewis).) “The jury also found true the special circumstance that the murder was committed during the commission of burglary.” (Ibid.) With respect to the special-circumstance finding under section 190.2, the jury was instructed with then current CALJIC No. 8.80.1, which required the prosecution to prove beyond a reasonable doubt that defendant was the actual killer, acted with intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life. (Lewis, supra, C034860.) Defendant appealed the convictions and we summarized the relevant facts. (Ibid.) In short, defendant and a codefendant took items of value from two apartments. (Ibid.) One of the victims, an elderly woman who lived in one of the apartments, was found in a coma the next day with injuries consistent with blunt force trauma, and later died. (Ibid.) Defendant admitted participating in the burglary and bumping into the victim, but said she only “spun around” and did not fall down. (Ibid.) In his direct appeal, defendant challenged the sufficiency of the evidence for the special-circumstance finding, arguing there was insufficient evidence to show he acted with reckless indifference to human life. (Lewis, supra, C034860.) We rejected defendant’s argument, saying there was no need to establish he acted with reckless indifference because sufficient evidence supported the conclusion he was the actual killer: “As Lewis acknowledges, the requirement of finding reckless indifference to human life before finding true a burglary special circumstance does not apply if there was sufficient evidence for the jury to conclude that the defendant was the actual killer. (See Pen. Code, § 190.2 [requiring reckless indifference only if defendant not actual killer]; see also People v. Smithey (1999) 20 Cal.4th 936, 1016 [same].) Since we conclude there was sufficient evidence for the jury to conclude that Lewis was the actual killer, we need not consider his reckless indifference argument.