PEOPLE v.LEWIS

Filed 5/19/06 Reposted to provide correct version

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Craig S. Kamansky, Judge. Affirmed in part and reversed in part.

Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone Murphy.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Loran L. Lewis.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia Garcia, Supervising Deputy Attorney General, and Stacy A. Tyler, Deputy Attorney General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendants and appellants Loran L. Lewis and Tyrone Murphy were in a stolen car involved in a police pursuit. They crashed the car into another vehicle, killing the occupants of the second vehicle. Defendants were convicted of, among other charges, second degree felony murder for each of the two deaths. The first time they appealed, they argued that the convictions of second degree felony murder must be reversed because the predicate felony, violating Vehicle Code section 2800.2,^[1] was not an inherently dangerous felony. This court held that section 2800.2 was an inherently dangerous felony and affirmed the second degree murder convictions.

Thereafter, the California Supreme Court decided People v. Howard (2005) 34 Cal.4th 1129 (Howard), in which it determined that section 2800.2 was not an inherently dangerous felony, and so could not support a second degree felony-murder conviction. After the California Supreme Court's decision in Howard, we recalled the remittitur in this case and vacated our earlier opinion inasmuch as the basis for affirming the convictions had been wholly abrogated.

Following supplemental briefing, we filed an opinion reversing the murder convictions. The People then filed a petition for rehearing. The defendants filed answers to the petition. This court granted the petition, vacating our prior opinion (Cal. Rules of Court, rule 25(d)), and heard additional argument.

Upon reconsidering the matter, we conclude that the murder convictions must be reversed. As before, however, the convictions of the remaining counts are affirmed.

II.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

On a Sunday afternoon a van was stolen from a store parking lot in Rialto, California. The van was abandoned with the engine running in Redlands. A short distance away, a Chevrolet Suburban was stolen outside a residence. The owner of the Suburban saw her car being backed out of the driveway and called police. She described the driver as a Black male, not very large, with short hair.

Redlands police officers heard the dispatch announcement of the theft and, within minutes, spotted the stolen vehicle. Two Black males were inside. The officers began following the Suburban in a commercial area of Redlands. Initially, the driver of the stolen vehicle slowed down as he approached a stop sign, then made a left turn without signaling or stopping. At the next intersection, the Suburban stopped at a red light in the opposing lane of travel; the Suburban then made a right turn, crossing in front of a vehicle stopped at the red light.

The police officers pursued the Suburban onto Interstate 10 at speeds up to 70 miles per hour in medium traffic. The Suburban and the police car slowed as they approached the Tennessee Avenue off-ramp. The stolen car then moved abruptly across three lanes, in front of a big rig truck, and onto the off-ramp. The off-ramp, after crossing Tennessee Avenue, becomes a transition road leading to Alabama Street. The Suburban, traveling westbound on the transition road, entered the intersection of the transition road and Alabama Street against a red light. Traveling at 78 miles per hour, the Suburban collided with a northbound vehicle on Alabama Street. The occupants of that vehicle, Michael and Joan Grizzell, died as a result of the collision.

After the collision, officers saw two Black men get out of the Suburban and run into an open field. The officers chased them on foot and caught them a short distance away.

An eyewitness identified defendant Lewis as the driver of the stolen car; she could not identify defendant Murphy as the passenger. At trial she could no longer identify which defendant had been the driver. A blood sample left inside the stolen car, together with accident reconstruction evidence, indicated that defendant Murphy had been the passenger.

Defendants were convicted of two counts of murder (Pen. Code, § 187), one count of evading an officer in willful disregard of the safety of persons or property (§ 2800.2, subd. (a)), and two counts of unlawful taking or driving of a vehicle (§ 10851, subd. (a)).

In her opening statement to the jury, the prosecutor indicated that the case would be tried on both a felony-murder theory predicated upon violating section 2800.2, and an implied malice theory ‑ ‑ that defendants acted with â€