Filed 9/28/16 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E065162
v. (Super.Ct.No. FSB903645)
LORAN L. LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 On April 29, 2010, defendant and appellant, Loran L. Lewis, pled guilty to two
counts of voluntary manslaughter. (Pen. Code, § 192, subd. (a).)1 Pursuant to the plea
agreement, the court sentenced defendant to two, concurrent, three-year determinate
terms of imprisonment to run consecutive with the sentence he was already serving, 50
years to life, for a total term of 53 years to life.
On November 14, 2012, defendant filed a petition for “recall of sentence” pursuant
to section 1170.126, which the court denied. In an opinion filed July 23, 2015, on appeal
from the court’s denial of his petition, we reversed and ordered the trial court to exercise
its discretion on the issue of whether a reduction of defendant’s sentence posed an
unreasonable risk of danger to public safety. On remand, the court again denied the
petition, finding defendant ineligible for resentencing and, regardless, finding that he
posed an unreasonable risk of danger to public safety.
After defendant filed a notice of appeal, this court appointed counsel to represent
him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a
statement of the case, and identifying two potentially arguable issues: (1) whether the
court erred in finding defendant was armed with a deadly weapon in his commission of
1 Defendant has been the subject of three prior opinions issued in this court in previous appeals. We take judicial notice of those opinions, two in case No. E031035, and one in case No. E0640430. (Evid. Code, § 459, subd. (a).) All further statutory references are to the Penal Code unless otherwise indicated.
2 the offenses and, therefore, ineligible for resentencing; and (2) whether the court erred in
finding defendant posed an unreasonable risk of danger to the community. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 7, 1999, defendant and his codefendant (collectively defendants)
stole a van from a store parking lot in Rialto, California. They abandoned the van in
Redlands with the engine running. They had broken out one of the windows and had
jimmied the ignition.
Defendants stole another vehicle from a home a short distance away from the
abandoned van. The owner of the second stolen car heard the vehicle door slam; she ran
to her front porch and saw her car backing out of the driveway. She called the police.
Redlands police officers heard the dispatch announcement of the theft and, within
minutes, spotted the stolen car. Defendants were inside. The officers observed the stolen
car run a stop sign, turn without signaling, cross into opposing lanes to pass cars stopped
at a traffic signal, and make other dangerous maneuvers.
The officers activated their red lights and siren, and gave pursuit. The stolen car
entered the freeway and traveled in the right lane at approximately 70 miles per hour.
The stolen car slowed somewhat as it approached an interchange. At the last minute, the
stolen car swerved from the right-hand interchange lane across four lanes of traffic to the
center lane. A short time later, the stolen car veered to the right, cutting in front of and
almost striking a semitruck.
3 The officers, still in pursuit, maneuvered around the semitruck and followed the
stolen car as it exited the freeway. The stolen car proceeded through one signal without
incident, traveling at approximately 70 miles per hour. At the next intersection, the
stolen car ran a red light traveling at 78 miles per hour and broadsided another vehicle
which had properly entered the intersection on a green light.
The impact was so severe that the rear end of the stolen car rose 10 feet into the
air. The victims’ vehicle came to rest 150 feet away from the stolen car. The two victims
were killed instantly.
When the stolen car came to rest, the officers saw defendants alight and run into
an open field. The officers chased them on foot and caught them a short distance away.
An eyewitness identified defendant as the driver of the stolen car. Blood samples
left inside the stolen car, together with accident reconstruction evidence, indicated that
the codefendant had been the passenger.
The People charged defendants with two counts of murder (Pen. Code, § 187), one
count of evading an officer in willful disregard of the safety of persons or property (Veh.
Code, § 2800.2, subd. (a)), and two counts of unlawful taking or driving of a vehicle
(Veh. Code, § 10851, subd. (a)). Defendant was also alleged to have suffered two prior
strike convictions. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
The case was tried on the thesis that defendant was the driver of the stolen car. A
jury found defendant guilty of all five charges. The second degree murder convictions
were based on the theory that the deaths resulted from the commission of an inherently
4 dangerous felony—fleeing or attempting to elude an officer with willful or wanton
disregard of the safety of persons or property. The People prosecuted defendant as the
driver committing the felony. The court found the prior strike allegations true. It
sentenced defendant to 140 years to life.
Defendant appealed his convictions contending that felony evading an officer was
not an inherently dangerous felony, as the offense could be committed in a manner or by
means which are not inherently dangerous to human life; therefore, he argued he could
not be found guilty of murder under the felony-murder rule. We affirmed.
Thereafter, the California Supreme Court decided People v. Howard (2005) 34
Cal.4th 1129, in which it determined that Vehicle Code section 2800.2 was not an
inherently dangerous felony, and so could not support a second degree felony-murder
conviction. After the California Supreme Court’s decision in Howard, we recalled the
remittitur and vacated our earlier opinion inasmuch as the basis for affirming the
convictions had been wholly abrogated. In a partially published opinion, we reversed
defendant’s convictions for murder.
In September 2006, the prosecutor filed a second amended information, realleging
the two murder counts. Three years later, in September 2009, the People moved to
dismiss the two murder counts. In December 2009, the People filed an information under
a new case number, alleging the same two counts of murder that had been previously
dismissed.
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Filed 9/28/16 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, E065162
v. (Super.Ct.No. FSB903645)
LORAN L. LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 On April 29, 2010, defendant and appellant, Loran L. Lewis, pled guilty to two
counts of voluntary manslaughter. (Pen. Code, § 192, subd. (a).)1 Pursuant to the plea
agreement, the court sentenced defendant to two, concurrent, three-year determinate
terms of imprisonment to run consecutive with the sentence he was already serving, 50
years to life, for a total term of 53 years to life.
On November 14, 2012, defendant filed a petition for “recall of sentence” pursuant
to section 1170.126, which the court denied. In an opinion filed July 23, 2015, on appeal
from the court’s denial of his petition, we reversed and ordered the trial court to exercise
its discretion on the issue of whether a reduction of defendant’s sentence posed an
unreasonable risk of danger to public safety. On remand, the court again denied the
petition, finding defendant ineligible for resentencing and, regardless, finding that he
posed an unreasonable risk of danger to public safety.
After defendant filed a notice of appeal, this court appointed counsel to represent
him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a
statement of the case, and identifying two potentially arguable issues: (1) whether the
court erred in finding defendant was armed with a deadly weapon in his commission of
1 Defendant has been the subject of three prior opinions issued in this court in previous appeals. We take judicial notice of those opinions, two in case No. E031035, and one in case No. E0640430. (Evid. Code, § 459, subd. (a).) All further statutory references are to the Penal Code unless otherwise indicated.
2 the offenses and, therefore, ineligible for resentencing; and (2) whether the court erred in
finding defendant posed an unreasonable risk of danger to the community. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 7, 1999, defendant and his codefendant (collectively defendants)
stole a van from a store parking lot in Rialto, California. They abandoned the van in
Redlands with the engine running. They had broken out one of the windows and had
jimmied the ignition.
Defendants stole another vehicle from a home a short distance away from the
abandoned van. The owner of the second stolen car heard the vehicle door slam; she ran
to her front porch and saw her car backing out of the driveway. She called the police.
Redlands police officers heard the dispatch announcement of the theft and, within
minutes, spotted the stolen car. Defendants were inside. The officers observed the stolen
car run a stop sign, turn without signaling, cross into opposing lanes to pass cars stopped
at a traffic signal, and make other dangerous maneuvers.
The officers activated their red lights and siren, and gave pursuit. The stolen car
entered the freeway and traveled in the right lane at approximately 70 miles per hour.
The stolen car slowed somewhat as it approached an interchange. At the last minute, the
stolen car swerved from the right-hand interchange lane across four lanes of traffic to the
center lane. A short time later, the stolen car veered to the right, cutting in front of and
almost striking a semitruck.
3 The officers, still in pursuit, maneuvered around the semitruck and followed the
stolen car as it exited the freeway. The stolen car proceeded through one signal without
incident, traveling at approximately 70 miles per hour. At the next intersection, the
stolen car ran a red light traveling at 78 miles per hour and broadsided another vehicle
which had properly entered the intersection on a green light.
The impact was so severe that the rear end of the stolen car rose 10 feet into the
air. The victims’ vehicle came to rest 150 feet away from the stolen car. The two victims
were killed instantly.
When the stolen car came to rest, the officers saw defendants alight and run into
an open field. The officers chased them on foot and caught them a short distance away.
An eyewitness identified defendant as the driver of the stolen car. Blood samples
left inside the stolen car, together with accident reconstruction evidence, indicated that
the codefendant had been the passenger.
The People charged defendants with two counts of murder (Pen. Code, § 187), one
count of evading an officer in willful disregard of the safety of persons or property (Veh.
Code, § 2800.2, subd. (a)), and two counts of unlawful taking or driving of a vehicle
(Veh. Code, § 10851, subd. (a)). Defendant was also alleged to have suffered two prior
strike convictions. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
The case was tried on the thesis that defendant was the driver of the stolen car. A
jury found defendant guilty of all five charges. The second degree murder convictions
were based on the theory that the deaths resulted from the commission of an inherently
4 dangerous felony—fleeing or attempting to elude an officer with willful or wanton
disregard of the safety of persons or property. The People prosecuted defendant as the
driver committing the felony. The court found the prior strike allegations true. It
sentenced defendant to 140 years to life.
Defendant appealed his convictions contending that felony evading an officer was
not an inherently dangerous felony, as the offense could be committed in a manner or by
means which are not inherently dangerous to human life; therefore, he argued he could
not be found guilty of murder under the felony-murder rule. We affirmed.
Thereafter, the California Supreme Court decided People v. Howard (2005) 34
Cal.4th 1129, in which it determined that Vehicle Code section 2800.2 was not an
inherently dangerous felony, and so could not support a second degree felony-murder
conviction. After the California Supreme Court’s decision in Howard, we recalled the
remittitur and vacated our earlier opinion inasmuch as the basis for affirming the
convictions had been wholly abrogated. In a partially published opinion, we reversed
defendant’s convictions for murder.
In September 2006, the prosecutor filed a second amended information, realleging
the two murder counts. Three years later, in September 2009, the People moved to
dismiss the two murder counts. In December 2009, the People filed an information under
a new case number, alleging the same two counts of murder that had been previously
dismissed. On April 29, 2010, the information in the new case was amended to add two
counts of voluntary manslaughter. (§ 192, subd. (a).)
5 On the same date, defendant pled guilty to two counts of voluntary manslaughter
pursuant to a plea agreement with an agreed sentence of three years, concurrent, on each
count. The murder counts and strike allegations were dismissed. The concurrent
sentences on the voluntary manslaughter counts ran consecutively to the three strikes
sentences in the earlier case arising from the same facts, i.e., 25 years to life, stayed, as to
the conviction for evading the police, 25 years to life on one count of unlawfully taking
and driving a vehicle, and a consecutive term of 25 years to life on the second count of
unlawfully taking and driving a vehicle. Defendant’s total term of incarceration was 53
years to life.
In 2012, the “Three Strikes” law was amended, to provide, in part, that persons
sentenced on third strikes for offenses that were not themselves serious or violent felonies
could petition for resentencing as if they had only been convicted of two strikes.
Defendant filed such a petition, pursuant to section 1170.126, in November 2012. The
trial court denied defendant’s petition on November 27, 2012, finding that defendant was
ineligible because he had been convicted of two counts of murder; the court was
evidently not aware that the murder convictions had been reversed on appeal.
On appeal from the denial of his petition, defendant contended that the court erred
in finding him ineligible for resentencing because his murder convictions had been
reversed. We agreed and reversed with directions that the trial court exercise its
discretion on the issue of whether reduction of defendant’s sentence posed an
unreasonable risk of danger to public safety.
6 On remand, the court found defendant ineligible for resentencing because he had
used a deadly weapon, a vehicle, in his commission of the instant offenses. The court
further found that even if defendant were eligible for resentencing, it would deny the
petition because defendant posed an unreasonable risk of danger to public safety. The
court noted that defendant had two prior convictions for assault with a deadly weapon,
his prior strike convictions. The court observed that defendant had just been released
from prison for those offenses 10 days earlier when he committed the instant offenses. It
further exposited that all of defendant’s convictions were for violent offenses.
Finally, the court noted that defendant had engaged in mutual combat with other
inmates on 10 occasions while incarcerated. “So, in looking at the totality of the
circumstances, if the defendant were statutorily eligible for resentencing . . . the Court
would, nevertheless, deny the petition . . . on the grounds that the Court finds that the
combination of the defendant’s prior record, the facts and circumstances of this case,
occurring only days after his release from state prison and being placed on parole and his
continuing violent conduct in state prison, all indicates that the defendant currently poses
. . . an unreasonable risk of dangerousness to the community.”
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
7 III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.