Filed 6/17/24 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E081272
v. (Super.Ct.No. RIF105632)
EDDIE JAMES LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, James M. Toohey and Daniel
Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Eddie James Lewis appeals from the trial court’s order
denying his petition for resentencing pursuant to Penal Code1 section 1172.6. For the
reasons set forth post, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
In 2002, defendant and a codefendant participated in two drive-by shootings in
Riverside. (People v. Lewis (April 25, 2006, E035918) [nonpub. opn.].)
B. PROCEDURAL HISTORY
On March 25, 2004, a jury found defendant guilty of three counts of attempted
murder under sections 664 and 187, subdivision (a) (counts 1-3), and one count of
discharging a firearm from a motor vehicle under section 12034, subdivision (c) (count
4). The jury found the following special allegations true: a principal personally and
intentionally discharged a firearm pursuant to section 12022.53, subdivisions (c) and
(e)(1) as to counts 1 and 2; a principal personally and intentionally discharged a firearm
causing great bodily injury pursuant to section 12022.53, subdivisions (d) and (e)(1) as to
counts 3 and 4; and each of the offenses was committed for the benefit of a criminal
street gang pursuant to section 186.22, subdivision (b). Finally, defendant admitted
having a prior serious felony conviction under section 667, subdivision (a) and two prior
strike convictions under section 667 subdivisions (c) and (e)(2)(A), 1170.12, subdivision
(c)(2)(A).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On May 14, 2004, the defendant was sentenced to a total determinate sentence of
47 years to be followed by an indeterminate term of 155 years to life.
On November 17, 2022, defendant filed a petition for resentencing under section
1172.6.
On April 28, 2023, the court denied defendant’s petition at the prima facie stage.
On May 3, 2023, defendant filed a notice of appeal.
DISCUSSION
Defendant argues: (1) the superior court violated section 1172.6 subdivision (c),
and defendant’s due process rights; and (2) counsel provided ineffective assistance.
Neither argument is persuasive. Because defendant is ineligible for relief as a matter of
law, any errors were harmless and thus not prejudicial.
A. DEFENDANT’S DUE PROCESS RIGHTS WERE NOT IMPLICATED
BY THE VIOLATION OF 1172.6 SUBDIVISION (C), AND ANY
ERROR WAS HARMLESS BECAUSE DEFENDANT IS INELIGIBLE
AS A MATTER OF LAW
Defendant claims “the court violated section 1172.6, subdivision (c) and
[defendant’s] rights of due process.” Specifically, defendant argues the court “did not . . .
require the prosecution to file and serve a response setting forth its legal analysis, or basis
for its opposition” and because “the record also does not reflect that the court had
available to it for review any portion of the record of conviction nor did it comply with its
statutory obligation to fully set forth its reasons for denying [defendant’s] petition.”
3 The People concede that 1172.6 (c) was not followed, stating, “it appears
[defendant] is correct that the prosecutor did not file a written response to the petition.”
However, the People argue that “the failure to file a written response to the petition is at
most an error of state law and any error was harmless under any standard because the jury
instructions conclusively demonstrate the jury was not instructed on an improper theory
of liability.” We agree.
Section 1172.6 subdivision (c) states, “[w]ithin 60 days after service of a petition
that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve
a response.” It is clear that the court did not adhere to this subdivision, with the People
conceding, “the record on appeal does not include any written response to [defendant’s]
section 1172.6 petition,” “there was no mention of any written response or filing by the
prosecutor made at the hearing on appellant’s petition,” and the People therefore
“assume[] no written response to the petition was filed.”
Still, defendant’s due process rights were not implicated by the omission. “In
some contexts, a court’s failure to comply with a statutory procedure will constitute a
denial of due process. [Citations]. [¶] But a trial court’s statutory omissions at the first
step of the section 1172.6 process are not state or federal constitutional violations.”
(People v. Hurtado (2023) 89 Cal.App.5th 887, 892.) Moreover, defendant’s challenge
was forfeited by counsel’s failure to object. “The forfeiture doctrine is a ‘well-
established procedural principle that, with certain exceptions, an appellate court will not
consider claims of error that could have been—but were not—raised in the trial court.’ ”
(People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
4 Defendant’s second contention, that the court did not review any portion of the
record of conviction, is without evidence. Defendant states, “there is no indication in the
record that the court had a copy or reviewed [the jury instructions] itself. There is also no
indication the court or defense counsel had a copy of the verdicts and true findings of the
jury, or the prosecutor’s closing arguments at trial, or this Court’s prior appellate opinion
setting forth the procedure of the matter” and defendant therefore concludes that the court
ruled without review of the record. The hearing itself demonstrates that the court’s denial
was not made in a vacuum devoid of pertinent information from the record of conviction
necessary for a ruling. At the hearing, the prosecutor indicated that “there was no theory
instructed to the jury on natural and probable consequences, felony murder, or any theory
under which malice would be imputed to the defendant.” Defendant’s counsel said that
he had read the provided instructions and submitted. The court subsequently denied the
petition. This exchange demonstrates that the court considered the contents of the jury
instructions, at the very least, on the basis of both the prosecutor’s and defense counsel’s
representations.
Finally, even assuming defendant’s arguments are valid, any error was harmless
under a Watson2 analysis because defendant is ineligible for relief as a matter of law.
Defendant claims “the instructions given in this case commingled the concepts of
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Filed 6/17/24 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, E081272
v. (Super.Ct.No. RIF105632)
EDDIE JAMES LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, James M. Toohey and Daniel
Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Eddie James Lewis appeals from the trial court’s order
denying his petition for resentencing pursuant to Penal Code1 section 1172.6. For the
reasons set forth post, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
In 2002, defendant and a codefendant participated in two drive-by shootings in
Riverside. (People v. Lewis (April 25, 2006, E035918) [nonpub. opn.].)
B. PROCEDURAL HISTORY
On March 25, 2004, a jury found defendant guilty of three counts of attempted
murder under sections 664 and 187, subdivision (a) (counts 1-3), and one count of
discharging a firearm from a motor vehicle under section 12034, subdivision (c) (count
4). The jury found the following special allegations true: a principal personally and
intentionally discharged a firearm pursuant to section 12022.53, subdivisions (c) and
(e)(1) as to counts 1 and 2; a principal personally and intentionally discharged a firearm
causing great bodily injury pursuant to section 12022.53, subdivisions (d) and (e)(1) as to
counts 3 and 4; and each of the offenses was committed for the benefit of a criminal
street gang pursuant to section 186.22, subdivision (b). Finally, defendant admitted
having a prior serious felony conviction under section 667, subdivision (a) and two prior
strike convictions under section 667 subdivisions (c) and (e)(2)(A), 1170.12, subdivision
(c)(2)(A).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On May 14, 2004, the defendant was sentenced to a total determinate sentence of
47 years to be followed by an indeterminate term of 155 years to life.
On November 17, 2022, defendant filed a petition for resentencing under section
1172.6.
On April 28, 2023, the court denied defendant’s petition at the prima facie stage.
On May 3, 2023, defendant filed a notice of appeal.
DISCUSSION
Defendant argues: (1) the superior court violated section 1172.6 subdivision (c),
and defendant’s due process rights; and (2) counsel provided ineffective assistance.
Neither argument is persuasive. Because defendant is ineligible for relief as a matter of
law, any errors were harmless and thus not prejudicial.
A. DEFENDANT’S DUE PROCESS RIGHTS WERE NOT IMPLICATED
BY THE VIOLATION OF 1172.6 SUBDIVISION (C), AND ANY
ERROR WAS HARMLESS BECAUSE DEFENDANT IS INELIGIBLE
AS A MATTER OF LAW
Defendant claims “the court violated section 1172.6, subdivision (c) and
[defendant’s] rights of due process.” Specifically, defendant argues the court “did not . . .
require the prosecution to file and serve a response setting forth its legal analysis, or basis
for its opposition” and because “the record also does not reflect that the court had
available to it for review any portion of the record of conviction nor did it comply with its
statutory obligation to fully set forth its reasons for denying [defendant’s] petition.”
3 The People concede that 1172.6 (c) was not followed, stating, “it appears
[defendant] is correct that the prosecutor did not file a written response to the petition.”
However, the People argue that “the failure to file a written response to the petition is at
most an error of state law and any error was harmless under any standard because the jury
instructions conclusively demonstrate the jury was not instructed on an improper theory
of liability.” We agree.
Section 1172.6 subdivision (c) states, “[w]ithin 60 days after service of a petition
that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve
a response.” It is clear that the court did not adhere to this subdivision, with the People
conceding, “the record on appeal does not include any written response to [defendant’s]
section 1172.6 petition,” “there was no mention of any written response or filing by the
prosecutor made at the hearing on appellant’s petition,” and the People therefore
“assume[] no written response to the petition was filed.”
Still, defendant’s due process rights were not implicated by the omission. “In
some contexts, a court’s failure to comply with a statutory procedure will constitute a
denial of due process. [Citations]. [¶] But a trial court’s statutory omissions at the first
step of the section 1172.6 process are not state or federal constitutional violations.”
(People v. Hurtado (2023) 89 Cal.App.5th 887, 892.) Moreover, defendant’s challenge
was forfeited by counsel’s failure to object. “The forfeiture doctrine is a ‘well-
established procedural principle that, with certain exceptions, an appellate court will not
consider claims of error that could have been—but were not—raised in the trial court.’ ”
(People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
4 Defendant’s second contention, that the court did not review any portion of the
record of conviction, is without evidence. Defendant states, “there is no indication in the
record that the court had a copy or reviewed [the jury instructions] itself. There is also no
indication the court or defense counsel had a copy of the verdicts and true findings of the
jury, or the prosecutor’s closing arguments at trial, or this Court’s prior appellate opinion
setting forth the procedure of the matter” and defendant therefore concludes that the court
ruled without review of the record. The hearing itself demonstrates that the court’s denial
was not made in a vacuum devoid of pertinent information from the record of conviction
necessary for a ruling. At the hearing, the prosecutor indicated that “there was no theory
instructed to the jury on natural and probable consequences, felony murder, or any theory
under which malice would be imputed to the defendant.” Defendant’s counsel said that
he had read the provided instructions and submitted. The court subsequently denied the
petition. This exchange demonstrates that the court considered the contents of the jury
instructions, at the very least, on the basis of both the prosecutor’s and defense counsel’s
representations.
Finally, even assuming defendant’s arguments are valid, any error was harmless
under a Watson2 analysis because defendant is ineligible for relief as a matter of law.
Defendant claims “the instructions given in this case commingled the concepts of
imputed malice and aider and abettor culpability with ambiguity in their wording as to
2 People v. Watson (1956) 46 Cal.2d 818.
5 whom the jury was required to find harbored express malice to find [defendant] guilty of
attempted murder.” Defendant’s argument is without merit.
Defendant was convicted of attempted murder under a direct aiding and abetting
theory. (People v. Lewis, supra, E035918.) “It is well settled that [Senate Bill No. 1437]
‘does not eliminate direct aiding and abetting liability for murder because a direct aider
and abettor to murder must possess malice aforethought.’ ” (People v. Williams (2022)
86 Cal.App.5th 1244, 1252.) At defendant’s trial, one instruction given, titled “Specific
Intent of Aider and Abettor,” read: Aiding and abetting the perpetrator of a specific
intent crime requires that the perpetrator share the specific intent of the perpetrator.
However, an aider and abettor will “share” the perpetrator’s specific intent when he or
she knows the full extent of the perpetrator’s criminal purpose and gives aid or
encouragement with the intent or purpose of facilitating the perpetrator’s commission of
the crime. This instruction specifically informs the jury that to find the defendant guilty
under a theory of aiding and abetting, the jury must find the aider and abettor himself had
specific intent. Consequently, defendant was not convicted under a theory where malice
was imputed and thus is not entitled to 1172.6 relief.
If defendant had been convicted as a direct aider and abettor under an imputed
malice theory, defendant would still not be entitled to relief under section 1172.6. As
explained by Division One:
“By arguing that the jury instructions allowed the jury to convict him as a
direct aider and abettor of murder on an imputed malice theory, [a petitioner] is
necessarily asserting that they were erroneous under the law in effect at the time of
6 his 2010 trial and subsequent direct appeal. Under Burns and Flores[3], however, a
section 1172.6 petitioner cannot establish a prima facie case for relief by asserting
that the jury instructions permitted conviction on a theory of imputed malice that
was already prohibited even before the enactment of Senate Bill No. 1437. This
amounts to ‘a routine claim of instruction error’ that ‘could have been raised on
appeal from the judgment of conviction.’ [Citation.] ‘Section 1172.6 does not
create a right to a second appeal, and [a petitioner] cannot use it to resurrect a
claim that should have been raised in his [direct] appeal.’ ” (People v. Berry-
Vierwinden (2023) 97 Cal.App.5th 921, 936.)
Thus, the record of conviction conclusively establishes that defendant is ineligible
as a matter of law and any errors were harmless.
B. DEFENDANT’S CLAIM OF INEFFECTIVE ASSISTANCE OF
COUNSEL FAILS FOR LACK OF PREJUDICE
Defendant claims his trial counsel was ineffective for “failing to object to the court
making a prima facie finding without compliance with the statute’s procedural
requirements, as well as failing to investigate and advocate for him at the prima facie
hearing.”
To establish a violation of affective assistance of counsel, a defendant must show
counsel’s performance fell below an objective standard of reasonableness and show that
he was prejudiced, that is, the results of the proceeding would have been different.
3 People v. Burns (2023) 95 Cal.App.5th 862; People v. Flores (2023) 96 Cal.App.5th 1164.
7 (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should
be followed.” (Id. at p. 697.)4
As outlined above, defendant is ineligible for 1172.6 relief as a matter of law.
Defendant, therefore, cannot demonstrate prejudice. Had defense counsel objected to the
procedural failings, the outcome of the 1172.6 proceedings would have been the same.
DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
4 Because we find that defendant was not prejudiced we need not resolve the People’s issue regarding a petitioner’s right to raise a claim of ineffective assistance of counsel at the prima facie stage of a section 1172.6 proceeding.