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Filed 2/16/23 P. v. Lewis CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

OPINION ON TRANSFER

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

resentencing under Penal Code former 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. 

1 Effective June 30, 2022, Penal Code former section 1170.95 was renumbered 

section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) 

Undesignated statutory references are to the Penal Code.
2

We filed an unpublished opinion on December 29, 2020, affirming the trial court’s 

order. Our Supreme Court granted review of the matter on March 17, 2021, and 

transferred the case to us with directions to vacate our previous decision and reconsider 

the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis 

(2021) 11 Cal.5th 952 (Lewis). After reconsidering the matter, we will reverse the trial 

court’s order and remand the case for further proceedings.

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.].) “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. Defendant 

appealed the convictions and we summarized the relevant facts. In short, defendant and a 

codefendant took items of value from two apartments. 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. Defendant admitted 

participating in the burglary and bumping into the victim, but said she only “spun 

around” and did not fall down. (People v. Lewis et al., supra, C034860.) 

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. 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 
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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.

“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.’ ” (People v. Lewis et al., supra, C034860.) We 

affirmed defendant’s convictions. 

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

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 [] §§ 188 and 

189, effective January 1, 2019.” 

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

through counsel, filed a brief in 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 
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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 

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.

“[Former] § 1170.95(a) provide[d] 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 [] §§ 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 [] § 1170.95.” 

DISCUSSION

Defendant argues the trial court erred when it relied on the jury’s special

circumstance 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 
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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 special

circumstance 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 agree.

Senate Bill No. 1437 (2017-2018 Reg. Sess.) added former 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.” (Former § 1170.95, subd. 

(a); Stats. 2018, ch. 1015, § 4.)2 The now renumbered section 1172.6, subdivision (a) 

allows a petitioner to “file a petition with the court that sentenced the petitioner to have 

the petitioner’s murder . . . conviction vacated and to be resentenced . . . when all of the 

following conditions apply: [¶] (1) A complaint, information, or indictment was filed 

against the petitioner that allowed the prosecution to proceed under a theory of felony 

murder [or] murder under the natural and probable consequences doctrine . . . . [¶] 

(2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer 

in lieu of a trial at which the petitioner could have been convicted of murder . . . . [¶] 

(3) The petitioner could not presently be convicted of murder . . . because of changes to 

Section 188 or 189 made effective January 1, 2019.”

Subdivision (c) of section 1172.6 sets forth the process for the trial court to 

consider such a petition. Under section 1172.6, subdivision (c), the court reviews the 

petition to determine if the petitioner has made a prima facie showing that the petitioner 

is entitled to relief. (Lewis, supra, 11 Cal.5th at pp. 957-958.) “If the petitioner makes a 

prima facie showing that the petitioner is entitled to relief, the court shall issue an order 

to show cause.” (§ 1172.6, subd. (c).)

2 Senate Bill No. 775 (2021-2022 Reg. Sess.), which became effective January 1, 

2022, made various amendments to former section 1170.95. (Stats. 2021, ch. 551, § 2.)
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Our Supreme Court has explained that subdivision (c) requires “only a single 

prima facie showing.” (Lewis, supra, 11 Cal.5th at p. 962.) In the prima facie stage, “the 

parties can, and should, use the record of conviction to aid the trial court in reliably 

assessing whether a petitioner has made a prima facie case for relief under subdivision 

(c).” (Id. at p. 972, fn. omitted.) “ ‘[I]f the record, including the court’s own documents, 

“contain[s] facts refuting the allegations made in the petition,” then “the court is justified 

in making a credibility determination adverse to the petitioner.” ’ ” (Id. at p. 971.) “In 

reviewing any part of the record of conviction at this preliminary juncture, a trial court 

should not engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ [Citation.]” (Id. at p. 972.)

After the trial court’s decision, the Supreme Court issued its decision in Strong, 

supra, 13 Cal.5th 698, which concluded that “[f]indings issued by a jury before Banks 

and Clark do not preclude a defendant from making out a prima facie case for relief 

under Senate Bill [No.] 1437.” (Strong, at p. 710.) 

Considering the issue in the context of issue preclusion, the court observed, 

“Banks and Clark represent the sort of significant change that has traditionally been 

thought to warrant reexamination of an earlier-litigated issue. Our earlier discussion of 

habeas corpus petitioners who have obtained relief from their felony-murder special 

circumstances in the wake of Banks and Clark [citation] does much to explain why: 

There are many petitioners with pre-Banks and Clark felony-murder special-circumstance 

findings who nevertheless could not be convicted of murder today. Senate Bill [No.] 

1437 requires petitioners seeking resentencing to make out a prima facie case that they 

‘could not presently be convicted of murder or attempted murder because of changes to [] 

Section 188 or 189 made effective January 1, 2019.’ (§ 1172.6, subd. (a)(3).) A preBanks and Clark special circumstance finding does not negate that showing because the 

finding alone does not establish that the petitioner is in a class of defendants who would 

still be viewed as liable for murder under the current understanding of the major 
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participant and reckless indifference requirements. [Citations.]” (Strong, supra, 13 

Cal.5th at pp. 717-718.) 

The Supreme Court also considered whether “a court may reject a petition at the 

prima facie stage if it independently examines the record and determines, applying the 

Banks and Clark standards, that sufficient evidence supports the earlier findings.” 

(Strong, supra, 13 Cal.5th at p. 719.) Noting the differences between pre- and postBanks and Clark special circumstance requirements, the Supreme Court observed the 

changes may “have altered what evidence defense counsel would have sought to 

introduce . . . might have fundamentally altered trial strategies” (id. at p. 719), and may 

have affected what jury instructions were requested or given. (Id. at pp. 719-720.) “An 

after-the-fact court review of a pre-Banks and Clark record does not account for all these

differences. . . . And as the Legislature has made explicit in a recent amendment to the 

predecessor to section 1172.6, a court determination that substantial evidence supports a 

homicide conviction is not a basis for denying resentencing after an evidentiary hearing. 

[Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an 

evidentiary hearing in the first place.” (Id. at p. 720, fn. omitted.) Thus, neither “the 

jury’s pre-Banks and Clark findings nor a court’s later sufficiency of the evidence review 

amounts to the determination section 1172.6 requires, and neither set of findings supplies 

a basis to reject an otherwise adequate prima facie showing and deny issuance of an order 

to show cause.” (Ibid.)

Accordingly, neither the pre-Banks/Clark special circumstance findings in 

defendant’s case, nor our conclusion that there was sufficient evidence to support 

defendant’s murder conviction, preclude defendant’s eligibility for relief as a matter of 

law. The trial court’s decision is thus no longer supported, and we must reverse the order 

denying defendant’s petition.
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DISPOSITION

The trial court’s order denying defendant’s petition is reversed. The matter is 

remanded to the trial court for issuance of an order to show cause and further proceedings 

consistent with section 1172.6, subdivision (d).

 KRAUSE , J.

We concur:

 RENNER , Acting P. J.

 EARL , J.