People v. Lewis CA4/2

California Court of Appeal·Decided April 8, 2021·No. E074796·Unpublished

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

William Rodgers, and Phillip LeBlanc (§ 182). In addition, in counts 3 and 5, the jury

found Lewis personally used a firearm (§ 12022.5), and in counts 2 through 6 included

findings that a principal was armed with a firearm in those counts (§ 12022, subd. (a)).

Lewis was sentenced to life without possibility of parole (LWOP) for the murder

with special circumstances in count 1, plus a determinate term of seven years for the

attempted murder in count 2, and a one year enhancement for allegation that a principal

was armed with a firearm, for a total of 8 years. The determinate terms for counts 3, 5

and 6 were ordered to run concurrent, and the indeterminate sentence of 25 years to life

imposed for count 9 (conspiracy to murder), was ordered to run concurrently to the

determinate term. The sentences for counts 4, 7, and 8 were stayed.

Defendant appealed his convictions and sentences, which were affirmed with

modifications to the sentence in a partially published opinion in 1990. (People v.

McLead, et al. (1990) 225 Cal.App.3d 906 (McLead).) Subsequently, defendant’s

petition for review was denied. In 2019, after enactment of section 1170.95 pursuant to

Senate Bill No. 1437, defendant petitioned to have his conviction for murder vacated and

for resentencing, which was summarily denied, and he appeals.

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 At Lewis’s request, we appointed counsel to represent him on appeal. Counsel

filed a brief declaring he found no arguably meritorious issues and asking us to conduct

an independent review of the record under People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Defendant has filed a

supplemental brief challenging (a) whether the trial court followed the mandated

procedures of section 1170.95; (b) whether the trial court erred in denying the issuance of

an order to show cause; and (c) whether he is entitled to an evidentiary hearing at which

he could present evidence that the financial gain special circumstances finding was the

product of prosecutorial misconduct. We affirm.

BACKGROUND

We summarize and abbreviate the facts leading to the convictions from our

opinion in the direct appeal, McLead, supra, 225 Cal.App.3d at pages 910-913:

Phillip LeBlanc helped his sister move to Perris in December 1985. In late

December 1985 he returned to Perris with Anthony Frazier in order to sell drugs. On

December 31, 1985, Frazier and LeBlanc returned to Los Angeles because they had

received a warning. They returned to Perris with William Rodgers, and brought with

them an M-1 rifle and more drugs. They also had Rodgers’s .22-caliber rifle, a 12-gauge

shotgun that belonged to Anthony Durgin, and a baseball bat.

On January 1, 1986, they were selling drugs from the apartment of Weberlee

Gobert (W.L.). LeBlanc was the doorman. Around noon or 12:30 p.m., LeBlanc heard a

knock. No one answered when LeBlanc asked who was there. When LeBlanc opened

3 the door, he saw Derron McLead holding a .357 magnum. McLead said, “You know

what this is,” and pushed LeBlanc into the apartment. McLead kicked the rifle that was

next to Rodgers who was on the couch. McLead then began hitting Frazier in the face.

Approximately 11 people, all holding guns, entered the apartment. LeBlanc also

recognized Lucky Pierre and Derrick Smith among the group.

Smith told Frazier that Frazier was in Smith’s spot, meaning where Smith sold

drugs. McLead gave his .357 to Pierre and left, taking Rodgers’s radio with him. Pierre

told LeBlanc that he had warned LeBlanc not to come to Perris and start a business and

that now LeBlanc must pay the consequences. When McLead returned about 45 minutes

later, David Lewis came with him.

Smith and McLead took LeBlanc into a bedroom, where Smith asked LeBlanc

how much money they had made and why LeBlanc had brought Frazier to Perris. Smith

said Frazier would die at sundown. LeBlanc was returned to the living room, and

Rodgers was taken into the bathroom for three or four minutes. Rodgers was returned to

the living room, then Frazier was taken to the bedroom where he remained for at least an

hour. While Frazier was in the bedroom, LeBlanc heard Smith say from the bedroom,

“They lied to us.” Smith returned to the living room, pointed an Uzi machine gun at

LeBlanc and Rodgers, and said they had lied to him about how much money they made.

Smith had a roll of money in his hand and added, “I’m rich” or “I’m richer.” Lewis and

McLead were present at the time. Smith gave Frazier’s cocaine to Pierre and told Pierre

to sell it.

4 McLead struck Frazier with a bat a couple of times during the afternoon. Lewis

struck Rodgers with a bat twice that afternoon. Smith struck LeBlanc and said, “Didn’t I

tell you not to bring . . . Frazier out here.”

Eugene Burns (Red) and Anthony Durgin, who both worked for Frazier, entered

the apartment. Smith asked them why they were helping Frazier instead of working for

Smith. Eventually, Red and Durgin were allowed to leave.

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.

At one point, McLead brought in some yellow rope, and Smith asked him where

the handcuffs were. McLead replied he could not find them. Rodgers and LeBlanc were

tied together with the yellow rope McLead had brought. Frazier’s hands were tied with a

lamp cord which McLead cut from a lamp in the apartment. When Smith led Frazier

from the apartment, Frazier looked as if he had been injured and said to LeBlanc and

Rodgers, “Tell them I just had fun.” Lewis and McLead were there at the time. Smith

led LeBlanc and Rodgers to a brown Buick and placed them in the backseat. Something

covered with a blanket was in the backseat.

Lewis, who was wearing gloves, drove the Buick. Smith got in the front

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