Opinion
C097765
04-08-2024
THE PEOPLE, Plaintiff and Respondent, v. JOEL LADON LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. STKCRFECOD20090005429, SF110732A)
OPINION ON REHEARING
Keithley, J. [*]
In June 2017, a jury found defendant Joel Lewis guilty of first degree murder and found true a special circumstance that the murder was committed during the commission of a robbery. This court affirmed that conviction in May 2021, finding, among other things, that substantial evidence supported the jury's finding on the special circumstance. (People v. Lewis (May 18, 2021, C085621) [nonpub. opn.] (Lewis).) Defendant later petitioned the trial court for resentencing pursuant to Penal Code section 1172.6. The trial court denied the petition, finding defendant was precluded from relief as a matter of law.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
On appeal, defendant contends the trial court erred and he is entitled to an evidentiary hearing. In our initial decision, we agreed with defendant and reversed the trial court's order. The People petitioned for rehearing; we granted their petition. On rehearing, we conclude the jury's special circumstance finding precludes defendant from relief under section 1172.6 as a matter of law.
BACKGROUND
On January 22, 2009, the People charged defendant with first degree murder (§ 187, subd. (a)) committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A)), 10 counts of second degree robbery (§ 211), four counts of attempted murder with premeditation (§§ 187, 664), two counts of illegal possession of a firearm (§ 12021, subd. (e)), negligent discharge of a firearm (§ 246), burglary (§ 459), and resisting arrest (§ 148). The People also alleged multiple firearm enhancements. (§§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subd. (b).)
A jury found defendant guilty on most counts, including murder and the special circumstance allegation. In April 2015, this court reversed that judgment.
In June 2017, a second jury found defendant guilty of first degree murder, two counts of robbery, one count of illegal possession of a firearm, and one count of resisting arrest. (Lewis, supra, C085621.) The jury also found true the robbery-murder special circumstance, though the trial court's instructions on the special circumstance did not include the Banks/Clark factors., (Ibid.) The remaining charges and allegations were dismissed, and the trial court sentenced defendant to life without the possibility of parole, with additional concurrent and consecutive terms for defendant's other convictions. (Ibid.)
People v. Banks (2015) 61 Cal.4th 788, 803-808 [identifying factors to guide juries on finding whether defendant was a "major participant"]. People v. Clark (2016) 63 Cal.4th 522, 614-620 [identifying factors to guide juries on whether a defendant acted with "reckless disregard"].
On the court's own motion, we incorporate by reference the record in defendant's direct appeal, Lewis, supra, C085621.
Defendant appealed the judgment. On direct appeal, defendant argued, among other things, there was insufficient evidence to sustain the jury's true finding on the robbery-murder special circumstance. (Lewis, supra, C085621.) In May 2021, we determined there was sufficient evidence to support the jury's true finding that defendant was either the actual killer or a major participant in the robbery who acted with reckless indifference to human life. We affirmed the judgment accordingly. (Ibid.)
On March 7, 2022, defendant petitioned the trial court for resentencing under section 1172.6. The trial court denied the petition after finding that this court previously affirmed the robbery-murder special-circumstance finding, and the appellate court did so with consideration of Banks and Clark.
Defendant appeals from the order of the trial court denying his petition for resentencing.
DISCUSSION
Defendant argues that the trial court's reliance on the prior opinion of the appellate court, as the basis to summarily deny defendant's petition for resentencing, was error. Defendant argues the appellate court's opinion, finding sufficient evidence supported the jury's true finding of special circumstances, does not deprive defendant of an order to show cause for resentencing because the jury instructions at trial omitted Banks/Clark factors. As discussed below, the general principles of issue preclusion guide our decision here, and we affirm the trial court's order.
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) 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.) 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."
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. (People v. Lewis (2021) 11 Cal.5th 952, 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).)
Our Supreme Court has explained that subdivision (c) requires "only a single prima facie showing." (People v. 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)." (People v. Lewis, at p. 972.)" '[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.'" (Id. at p. 972.)
B. Robbery-Murder Special Circumstance
In 2022, our Supreme Court considered the effect a jury's true finding on a robbery-murder special-circumstance allegation would have on a section 1172.6 petition. (See People v. Strong (2022) 13 Cal.5th 698 (Strong).) The Court held that findings made before Banks and Clark would not preclude a defendant from making a prima facie case for relief under section 1172.6. (Strong, at p. 710.) The Court explained that its decisions in Banks and Clark "represent the sort of significant change that has traditionally been thought to warrant reexamination of an earlier-litigated issue." (Id. at p. 717.)
Findings made after Banks and Clark, however, would "ordinarily establish a defendant's ineligibility for resentencing under Senate Bill 1437 and thus preclude the defendant from making a prima facie case for relief." (Strong, supra, 13 Cal.5th at p. 710.) By tethering the definition of "major participant" and "reckless indifference" to the felony-murder special circumstance (§ 190.2, subds. (a)(17)(A)), the felony-murder statute under section 189, subdivision (e)(3) now incorporates the clarification given to those concepts in Banks and Clark. (Strong, at p. 708.) Thus, although the mandatory jury instructions did not change in the wake of Banks and Clark, "much else about the trial environment did." (Id. at p. 719.)
The "range of guiding factors" provided by our Supreme Court in Banks and Clark "significantly" changed the arguments available to trial counsel. (Strong, supra, 13 Cal.5th at p. 719.) The Banks/Clark factors also "altered what evidence defense counsel [might seek] to introduce." (Ibid.) "[M]ore broadly, the clarifications Banks and Clark offered about the height of the bar needed to prove a felony-murder special-circumstance finding might have fundamentally altered trial strategies . . . ." (Ibid.) And, the "optional additional instruction on the Banks and Clark factors [could be] given to guide the jury in its deliberations . . . ." (Strong, at p. 720.)
In 2023, our Supreme Court considered the effect a jury's true finding on a gang-murder special-circumstance allegation would have on a section 1172.6 petition. (See People v. Curiel (2023) 15 Cal.5th 433 (Curiel).) The Court explained that "[w]ithout deciding whether [the doctrine of issue preclusion] applies wholesale to criminal resentencing proceedings generally, or even section 1172.6 proceedings specifically, we continue to believe its contours are informative in this context and rely on them again here." (Curiel, at p. 451.) The general principles of issue preclusion require the issue be identical to the one previously litigated, the issue also must have been"' "actually litigated" '" and"' "necessarily decided," '" and the party seeking to preclude litigation of the issue must be"' "the same as, or in privity with, the party to the former proceeding." '" (Id. at pp. 451-452.)
Guided by these established principles of issue preclusion, our Supreme Court reiterated that, in order for an issue to have been "actually litigated," one must only have"' "the opportunity to litigate" '" the issue for it to have preclusive effect; one need not have actually"' "availed himself or herself of the opportunity." '" (Curiel, supra, 15 Cal.5th at p. 452.) The Court thus repeated its prior "observation" that "a relevant jury finding is generally preclusive in section 1172.6 proceedings, i.e., it 'ordinarily establish[es] a defendant's ineligibility for resentencing under Senate Bill 1437 and thus preclude[s] the defendant from making a prima facie case for relief.' (Strong, supra, 13 Cal.5th at p. 710.)" (Curiel, at pp. 453-454.) In short, the Court concluded, "it is difficult to foresee a situation in which a relevant jury finding, embodied in a final criminal judgment, would not meet the traditional elements of issue preclusion." (Id. at p. 454.)
Here, the relevant trial took place after Banks and Clark were decided. As a result, the robbery-murder special-circumstance allegation was litigated in the "trial environment" changed by those Supreme Court decisions. Trial counsel had the opportunity to make arguments about the Banks/Clark factors, present evidence guided by those factors, and even request optional jury instructions inspired by those factors. (See Strong, supra, 13 Cal.5th at p. 719.) Thus, regardless of whether he availed himself of those opportunities, defendant is precluded from relitigating the issue in his section 1172.6 petition; he is bound by the jury's true finding that he acted either with the intent to kill or with reckless indifference to human life.
In short, defendant could still be prosecuted for murder today, and based solely on his record of conviction, he is not eligible for relief under section 1172.6 as a matter of law. We therefore affirm the trial court's order denying defendant's petition for resentencing.
DISPOSITION
The trial court's order denying defendant's petition for resentencing under section 1172.6 is affirmed.
We concur: Hull, Acting P. J. Renner, J.
[*]Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.