People v. Hardin CA2/2

Filed 3/8/23 P. v. Hardin CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B319223

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA271293) v.

LEWIS EDWARD HARDIN,

Defendant and Appellant.

THE COURT: Defendant and appellant Lewis Edward Hardin (defendant) appeals from the denial of his petition for vacatur of his murder conviction and for resentencing under Penal Code former section 1170.95, now section 1172.6.1 After examination of the record,

1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new numbering only. All further unattributed code sections are to the Penal Code unless otherwise stated.

appointed counsel filed an opening brief raising no issues and asking this court to independently review the record. Counsel provided defendant with a copy of the record on appeal and informed him of his right to file his own supplemental brief. As defendant has done so, we evaluate the specific arguments raised in his brief, but do not conduct an independent review of the record to identify unraised issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 232.) In his supplemental brief, defendant contends that the trial court erred in finding he had failed to make the required prima facie showing of eligibility for relief under section 1172.6, and in denying his petition. Finding no merit to defendant’s arguments, we affirm the trial court’s order.

BACKGROUND In 2007, a jury convicted defendant and codefendant Theodore Shove of the first degree murders of Hubert Souther and Elizabeth Souther (Pen. Code, § 187) and found true the special circumstance allegation as to each victim that defendant committed the murder for financial gain within the meaning of section 190.2, subdivision (a)(1). On June 2, 2008, the trial court sentenced defendant to life in prison without the possibility of parole. The judgment was affirmed on appeal. (See People v. Hardin (Oct. 19, 2009, B208895) [nonpub. opn.].) After defendant’s conviction, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), amending sections 188 and 189, the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, “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 acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,