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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

EDDIE JAMES LEWIS,

Defendant and Appellant.

E081272

(Super.Ct.No. RIF105632)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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.
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Defendant and appellant Eddie James Lewis appeals from the trial court’s order 

denying his petition for resentencing pursuant to Penal Code1section 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). 

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 All further statutory references are to the Penal Code unless otherwise indicated. 
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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.”
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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 ‘wellestablished 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.) 
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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 

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 People v. Watson (1956) 46 Cal.2d 818.
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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 
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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. BerryVierwinden (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. 

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 People v. Burns (2023) 95 Cal.App.5th 862; People v. Flores (2023) 96 

Cal.App.5th 1164.
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(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.

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 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.