People v. Lewis CA4/2

• Court: California Court of Appeal
• Decided: April 17, 2023
• Docket: E079480
• Status: Unpublished

Opinion

Filed 4/17/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079480

v. (Super.Ct.No. CR25725)

DAVID LAMONT LEWIS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.

Affirmed.

David Lamont Lewis, in pro. per.; and Valerie G. Wass, under appointment by the

Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant David Lamont Lewis appeals from the Riverside County

Superior Court’s denial of his second petition for resentencing made pursuant to section

1172.6 of the Penal Code.1 We affirm.

BACKGROUND

Defendant and two codefendants were convicted of first degree murder in

violation of section 187 with the special circumstance that the murder was committed for

financial gain as provided for in subdivision (a)(1) of section 190.2. We affirmed the

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

McLead, et al. (1990) 225 Cal.App.3d 906, 921 (Lewis I).)

1. Defendant’s first petition for resentencing

In 2019, the trial court summarily denied defendant’s section 1172.6 petition for

resentencing. On appeal, defendant’s appointed appellate counsel filed a brief declaring

he was unable to find an arguably meritorious issue and asked us to independently review

the record pursuant to People v. Wende (1979) 25 Cal.3rd 436 (Wende) and Anders v.

California (1967) 386 U.S. 738. Defendant filed a supplemental brief in which he raised

a variety of arguments, including that he was not the actual killer, he did not, with the

intent to kill, aid or abet the murder, and he was not a major participant.

We affirmed the denial, finding defendant is not entitled to relief under section

1172.6 as a matter of law because the jury found he was a direct aider and abettor who

1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.

2 acted with intent to kill and he has a final and undisturbed special-circumstances finding.

(People v. Lewis (Apr. 8, 2021, E074796) [nonpub.opn.] (Lewis II).)

2. Defendant’s second petition for resentencing resulting in this appeal

In May 2022, defendant again petitioned for resentencing in the same matter that

was the subject of his first petition. He raised many of the same issues as in his first

petition and added that he is entitled to section 1172.6 relief because he was convicted on

a theory of natural and probable consequences. The trial court denied the petition with

prejudice. Defendant timely noticed this appeal, and we appointed counsel to represent

him.

Counsel again filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and

defendant again filed a supplemental brief.2

DISCUSSION

In his current petition, defendant seeks the same relief in the same matter as his

first petition even though our opinion in Lewis II already made clear he is not entitled to

resentencing relief. Nothing in defendant’s brief or in the record on appeal has altered

our conclusion that his conviction does not meet the requirements of section 1172.6 as a

matter of law.

2 We note that the brief was filed before the Supreme Court’s opinion in People v. Delgadillo (2022) 14 Cal.5th 216 became final. Because the opening brief and our notice to defendant referred to Wende, we will conduct an independent review of the record on appeal.

3 DISPOSITION

The trial court’s dismissal with prejudice of defendant’ petition for resentencing

pursuant to 1172.6 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J.

SLOUGH J.