California Court of Appeal Apr 8, 2021 No. E074796Unpublished
Filed 4/8/21 P. v. Lewis CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074796
v. (Super.Ct.No. CR25725)
DAVID LAMONT LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Malloy, Judge.
Affirmed.
David Lewis, in pro. per., and Kevin J. Lindsley, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1989, defendant David Lewis, along with codefendants Derron McLead and
Derrick Shawn Smith, was convicted by a jury of one count of first degree murder (Pen.
1
Code, § 187),1 with a special circumstances finding that the murder was committed for
financial gain (§ 190.2, subd. (a)(1)), as well as two counts of attempted murder (§§ 664,
187), two counts of kidnaping (§ 207, subd. (a)), one count of residential robbery (home
invasion, §§ 211, 213.5), and three counts of conspiracy to murder Anthony Frazier,
S263939.) Here, defendant is ineligible for relief under section 1170.95 as a matter of
law because he “was convicted on a ground that remains valid notwithstanding Senate
Bill 1437’s amendments to sections 188 and 189.” (People v. Verdugo, supra, 44
Cal.App.5th at p. 330, review granted, S260493.) The record shows the jury at
defendant’s trial adopted a theory of murder liability that remains valid under section 188
as amended by Senate Bill 1437—the theory that defendant, with the intent to kill,
directly aided and abetted the commission of first degree murder.
In this regard, at the hearing in the trial court, the prosecutor argued and the trial
court agreed that the jury had to find defendant personally intended to kill the victim in
order to make a true finding on the special circumstances finding. (CALJIC No. 8.81.1.)
In addition, as we observed in our opinion on direct appeal, during the home invasion
robbery, “Twice McLead told LeBlanc and Rodgers that they could work for Smith
selling drugs, but said that Frazier would die at sundown. Lewis told them the same
thing.” (McLead, supra, 225 Cal.App.3d at p. 911, italics added.)
The record of conviction, including our opinion on direct appeal, demonstrates
defendant was a major participant in the home invasion, the kidnaping, and the shootings,
and that he expressed an intent to kill. When McLead struck Frazier with a baseball bat,
Lewis struck Rodgers with a bat twice that afternoon. Although defendant did not
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personally shoot into the car where the victims were bound up, he was major participant
who manifested the intent to kill, so his conviction was not grounded on the natural and
probable consequences doctrine.
Defendant presented no evidence that he was convicted under the natural and
probable consequences theory, and his conviction on the conspiracy counts supports a
conclusion he had a specific intent to kill Frazier, which is inconsistent with a theory he
was convicted under a natural and probable consequences theory.
Insofar as the record of conviction includes our opinion on direct appeal, we note
our conclusion that all three defendants clearly acted with the intent to kill Frazier, and
that there was substantial evidence that they had a concurrent intent to steal. (McLead,
supra, 225 Cal.App.3d at p. 916.)
C. Whether Defendant Is Entitled to An Evidentiary Hearing to Relitigate the
Validity of the True Finding on the Financial Gain Special Circumstances Finding.
Defendant argues he is entitled to an evidentiary hearing at which he could present
evidence that the true finding on the special circumstance allegation was the product of
prosecutorial misconduct. We disagree.
First, we point out that defendant did not raise this point in his petition for relief
under section 1170.95, so it is forfeited. (People v. Verdugo, supra, 44 Cal.App.5th at p.
333, fn. 11, review granted, S260493.) In the trial court, his reply to the People’s
response to his petition argued only that he had made a prima facie showing and that any
factual disputes should be resolved at the evidentiary hearing. He also argued that he had
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made a prima facie showing based on the fact that his jury was instructed on the theories
of aiding and abetting a felony murder (CALJIC Nos. 3.01 [aiding and abetting], 8.34
[aiding and abetting a felony murder]). He did not challenge the special circumstances
allegation, nor could he: if defendant seeks to collaterally attach the validity of the
special circumstance finding, he must do so by way of a petition for writ of habeas
corpus. (People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, citing People v. Gomez
(2020) 52 Cal.App.5th 1,17.)
Under section 190.2, subdivision (a)(1), a defendant is subject to the special
circumstance if the “murder was intentional and carried out for financial gain.” Even if
the defendant is “not the actual killer,” if that defendant “with the intent to kill, aids,
abets, counsels, commands, induces, solicits, requests, or assists any actor in the
commission of murder in the first degree,” he or she is also subject to this special
circumstance. (§ 190.2, subd. (c); People v. Fayed (2020) 9 Cal.5th 147, 201-202.) The
1978 version of section 190.2, in effect at the time of defendant’s crime, had the same
requirements. (People v. Freeman (1987) 193 Cal.App.3d 337, 339.)
We have recently held that defendants with undisturbed and final special
circumstance findings are barred as a matter of law from petitioning for relief under
section 1170.95. (People v. Jones (2020) 56 Cal.App.5th 474 [270 Cal.Rptr.3d. 362],
review granted January 27, 2021, S265854.) Defendant has an undisturbed and final
special circumstances finding, so he is barred from relief under section 1170.95. The
record of conviction establishes the jury found that Lewis, with the intent to kill, directly
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aided and abetted the commission of first degree murder whether that murder was based
on a theory of felony murder, or on a theory of deliberate and premeditated murder.
Certainly, the record in this case, which includes defendant’s repetition of McLead’s
statement that the murder victim would be killed, establishes he could be convicted of
first degree murder even after the enactment of Senate Bill 1437.
If defendant wishes to challenge the validity of the special circumstances finding,
whether pursuant to the holdings of People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522, or based upon an alleged Brady violation (ref. Brady v.
Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194]), or some other ground of
collateral attack, he must file a petition for writ of habeas corpus.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1170.95, holding that the defendant failed to make a prima facie showing of eligibility because his murder conviction and special circumstance finding remain valid under current law.
Issues
Whether the trial court followed the mandated procedures of Penal Code section 1170.95.
Whether the trial court erred in denying the issuance of an order to show cause.
Whether the defendant is entitled to an evidentiary hearing to challenge the validity of the financial gain special circumstance finding.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial court followed the mandated procedures in considering the petition.”
“Defendant has an undisturbed and final special circumstances finding, so he is barred from relief under section 1170.95.”