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Filed 12/29/20 P. v. Lewis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CARL LEWIS,

Defendant and Appellant.

C091066

(Super. Ct. No. 98F07013)

Defendant Carl Lewis appeals the trial court’s denial of his petition for 

resentencing under Penal Code section 1170.95,1 arguing the trial court incorrectly found 

that his conviction for first degree murder with a burglary-murder special circumstance 

precluded his eligibility for relief. We will affirm the trial court’s order.

1 Undesignated statutory references are to the Penal Code.
2

BACKGROUND

In 2000, defendant was convicted of burglary (§ 459), robbery (§ 211), and first 

degree murder (§ 187, subd. (a)). (People v. Lewis et al. (Jan. 8, 2002, C034860) 

[nonpub. opn.] (Lewis).) “The jury also found true the special circumstance that the 

murder was committed during the commission of burglary.” (Ibid.) With respect to the 

special-circumstance finding under section 190.2, the jury was instructed with then 

current CALJIC No. 8.80.1, which required the prosecution to prove beyond a reasonable 

doubt that defendant was the actual killer, acted with intent to kill, or was a major 

participant in the underlying felony and acted with reckless indifference to human life. 

(Lewis, supra, C034860.) Defendant appealed the convictions and we summarized the 

relevant facts. (Ibid.) In short, defendant and a codefendant took items of value from 

two apartments. (Ibid.) One of the victims, an elderly woman who lived in one of the 

apartments, was found in a coma the next day with injuries consistent with blunt force 

trauma, and later died. (Ibid.) Defendant admitted participating in the burglary and 

bumping into the victim, but said she only “spun around” and did not fall down. (Ibid.)

In his direct appeal, defendant challenged the sufficiency of the evidence for the 

special-circumstance finding, arguing there was insufficient evidence to show he acted 

with reckless indifference to human life. (Lewis, supra, C034860.) We rejected 

defendant’s argument, saying there was no need to establish he acted with reckless 

indifference because sufficient evidence supported the conclusion he was the actual 

killer: “As Lewis acknowledges, the requirement of finding reckless indifference to 

human life before finding true a burglary special circumstance does not apply if there was 

sufficient evidence for the jury to conclude that the defendant was the actual killer. (See 

Pen. Code, § 190.2 [requiring reckless indifference only if defendant not actual killer]; 

see also People v. Smithey (1999) 20 Cal.4th 936, 1016 [same].) Since we conclude there 

was sufficient evidence for the jury to conclude that Lewis was the actual killer, we need 

not consider his reckless indifference argument.
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“Lewis admittedly encountered [the victim] as he was exiting the apartment. He 

asserted he merely bumped her, but the evidence, including his proximity to her, her 

injuries, and the likelihood that the injuries were caused by the flashlight he was carrying, 

support the inference he beat her, striking her at least four times with considerable force. 

Additionally, he criticized [codefendant] for leaving him at the apartment and stated he 

had hit [the victim] ‘upside the head.’ ” (Lewis, supra, C034860.) We affirmed 

defendant’s convictions. (Ibid.)

On January 28, 2019, defendant filed a petition for resentencing under section 

1170.95. The petition alleged defendant was eligible for relief because he was charged 

“under a theory of felony murder or murder under the natural and probable consequences 

doctrine,” he “was convicted of 1st or 2nd degree murder pursuant to the felony murder 

rule or the natural and probable consequences doctrine,” and he could “not now be 

convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 

and 189, effective January 1, 2019.” 

The district attorney’s office filed a response to the petition, and defendant, 

through counsel, filed opposition to the district attorney’s response. The trial court 

denied defendant’s petition, saying, “Defendant Lewis, at trial by jury, was found guilty 

of first degree murder, and the jury also found true, by unanimous verdict and beyond a 

reasonable doubt, that a burglary-murder special circumstance was true. In making its 

determination on the special circumstance allegation, the jury is presumed to have 

followed CALCRIM No. 8.80.1, with which it had been instructed regarding the special 

circumstance, and found that defendant Lewis either was the actual killer, acted with 

intent to kill, or was a major participant in the burglary and acted with reckless 

indifference to human life in committing the burglary.

“Defendant Lewis’s judgment, including the special circumstance finding, was 

affirmed on appeal by the Third District Court of Appeal. [¶] The court’s underlying file 

does not show that defendant Lewis has obtained a vacating of his special circumstance 
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finding by any court, and defendant Lewis has not alleged that that has occurred or 

submitted any reasonably available documentary evidence to show that that has occurred.

“Penal Code § 1170.95(a) provides that ‘A person convicted of felony murder or 

murder under a natural and probable consequences theory may file a petition with the 

court that sentenced the petitioner to have the petitioner’s murder conviction vacated and 

to be resentenced on any remaining counts when all of the following conditions apply: 

. . . (3) The petitioner could not be convicted of first or second degree murder because of 

changes to Section 188 or 189 made effective January 1, 2019.’ Defendant Lewis is not 

such a person. As Penal Code §§ 187 and 189 still provide for first degree murder based 

on burglary-murder, when the trier of fact has found beyond a reasonable doubt that the 

defendant either was the actual killer, intended to kill, or was a major participant who 

acted in the robbery with reckless indifference to human life, as a unanimous jury in Case 

No. 98F07013 necessarily found that to be so beyond a reasonable doubt, and as it does 

not appear that there has been any postconviction proceeding in which it was ordered that 

the special circumstance finding be vacated in Case No. 98F07013 with regard to 

defendant Lewis, the court now finds that defendant Lewis simply is ineligible for relief 

under Penal Code § 1170.95.” 

DISCUSSION

Defendant argues the trial court erred when it relied on the jury’s specialcircumstance finding to determine he was ineligible for relief as a matter of law. He 

argues that because the definitions of “major participant” and “reckless indifference to 

human life” were clarified by our Supreme Court after the jury made its finding in People 

v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, the specialcircumstance finding from his trial is invalid. Because the order denying defendant’s 

petition relied on the special-circumstance finding, defendant claims the order must be 

reversed. We disagree.
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Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted to 

“amend the felony murder rule and the natural and probable consequences doctrine, . . . 

to ensure that murder liability is not imposed on a person who is not the actual killer, did 

not act with the intent to kill, or was not a major participant in the underlying felony who 

acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).) Senate 

Bill 1437 achieved these goals by amending section 188 to require that a principal act 

with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by 

amending section 189 to state that a person can be liable for felony murder only if 

(1) “[t]he person was the actual killer”; (2) the person, with an intent to kill, was an aider 

or abettor “in the commission of murder in the first degree”; or (3) “[t]he person was a 

major participant in the underlying felony and acted with reckless indifference to human 

life . . . .” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)

Senate Bill 1437 (2017-2018 Reg. Sess.) also added section 1170.95 to provide the 

resentencing petition process for a “person convicted of felony murder or murder under a 

natural and probable consequences theory.” (§ 1170.95, subd. (a).) After a defendant 

submits a petition and the court performs an initial review for missing information, 

subdivision (c) of section 1170.95 provides, in part: “The court shall review the petition 

and determine if the petitioner has made a prima facie showing that the petitioner falls 

within the provisions of this section. If the petitioner has requested counsel, the court 

shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a 

response within 60 days of service of the petition and the petitioner may file and serve a 

reply within 30 days after the prosecutor response is served.” (§ 1170.95, subd. (c).)

We concluded in defendant’s direct appeal that there was sufficient evidence to 

find defendant was the victim’s actual killer. (Lewis, supra, C034860.) This conclusion 

is law of the case and is binding. (Friends of Spring Street v. Nevada City (2019) 33

Cal.App.5th 1092, 1106.) Thus, he still could be convicted of murder, even after the 

changes introduced to section 189 by Senate Bill 1437 (2017-2018 Reg. Sess.), and is 
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thus ineligible for relief under section 1170.95. (See §§ 189, subd. (e)(1), 1170.95, subd. 

(a)(3).) Whether or not his eligibility is also precluded because he was a major 

participant who acted with reckless indifference to human life is irrelevant.

2

Defendant contends the fact there was sufficient evidence to show he was the 

actual killer does not compel the denial of his section 1170.95 petition because there is no 

evidence in the record showing the jury actually relied on that theory of liability, rather 

than a theory he was a major participant who acted with reckless indifference to human 

life. But as explained above, the controlling question for eligibility under section 

1170.95 is whether defendant could still be convicted of murder under a theory permitted 

by section 189, not whether a jury used that same theory at trial. (§ 1170.95, subd. 

(a)(3).) Because we previously concluded that there was sufficient evidence to find, 

beyond a reasonable doubt, that defendant was the actual killer in his case, he could still 

be convicted of murder under section 189. (Lewis, supra, C034860.) We conclude the 

trial court did not err when it denied defendant’s section 1170.95 petition. 

2 Defendant cites People v. Torres (2020) 46 Cal.App.5th 1168, review granted 

June 24, 2020, S262011, for the proposition that a pre-Banks/Clark finding that defendant 

was a major participant who acted with reckless indifference to human life should not 

preclude eligibility for section 1170.95 relief. For their part, the People argue that Torres

was wrongly decided. Because defendant is ineligible for relief even without reaching 

the question whether he was a major participant who acted with reckless indifference to 

human life, Torres is not applicable here, and we decline the People’s invitation to 

examine its reasoning.
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DISPOSITION

The trial court’s order denying defendant’s section 1170.95 petition is affirmed.

 KRAUSE , J.

We concur:

 BLEASE , Acting P. J.

 RENNER , J.