Filed 6/2/22 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Daniel Rogers, Acting Assistant Attorney General, A. Natasha Cortina, and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On November 20, 2009, a jury convicted defendant and appellant Peter Michael Lewis of first degree murder under Penal Code[1] section 187, subdivision (a) (count 1); first degree residential robbery under section 211 (count 2); and residential burglary under section 459 (count 3). With respect to all three counts, the jury also found true that a principal in all three counts was armed with a handgun under section 12022, subdivision (a)(1).

On January 12, 2010, the trial court sentenced defendant to prison for seven years for count 2, followed by 25 years to life for count 1, with a consecutive one year for the possession conviction. After defendant appealed, on March 22, 2011, we affirmed the defendant’s conviction in People v. Lewis (March 22, 2011, E050174) [nonpub. opn.].)

On February 26, 2019, defendant filed a petition for resentencing under section 1170.95. The trial court found that defendant presented a prima facie case for relief and conducted an evidentiary hearing. After the hearing, the court denied defendant’s petition.

On May 20, 2021, defendant filed a notice of appeal.

B. FACTUAL HISTORY[2]

“On March 7, 2008, defendant Peter Lewis and three companions, Troy Fava, Charles Carr, and Chris Rivera, entered the apartment of [Lucas] Buckingham during the daytime. At the time of entry, the front door was open. Rivera, who was armed with a handgun, entered first. Just prior to entering, defendant observed Rivera cock the gun by pulling the slide back. Rivera was followed by Fava, defendant, and Carr, in that order. Present in the apartment was Buckingham, who was asleep in his bedroom, and [the victim] who, after spending the night, was seated on the couch in the living room. The apartment was small with only a living room, kitchen, bedroom, and bathroom. After proceeding through the living room, Fava, Rivera, and defendant entered Buckingham’s bedroom. Carr stopped just inside the front entrance of the apartment. The bedroom was dark. Once in the bedroom, Fava got onto Buckingham’s bed and, while straddling him, began striking him multiple times on and around his face. During this interval, Rivera was pointing a gun at Buckingham. Buckingham was pulled from the bed onto the floor. During this time frame, one of the perpetrators asked Buckingham where his ‘stash’ or ‘cash’ was; one of them also asked, ‘[w]here the fuck are the guns?’^[[3]^] Buckingham testified that at this point Fava said, ‘[w]e’re not here for that.’ While Buckingham was on the floor defendant began choking him.

“Carr testified that when he got to the front door he heard fighting going on in the bedroom. He asked [the victim], who was seated on the couch, what was going on. [The victim] did not answer. Carr then observed [the victim] get off the couch and move toward the hallway. Carr observed that [the victim] had a gun in his hand and Carr heard the gun being cocked. He fled from the apartment. As he was running from the scene he heard gunshots. Buckingham testified that about 10 seconds into being choked, he heard a ‘thud’ coming from the living room. Shortly thereafter gunfire started. The shots were coming from the living room and just outside the apartment. He heard 7 to 15 shots. In a statement to Detective Minard, defendant stated that Rivera fired multiple shots toward the front door, where [the victim] was located. The gun being used by Rivera was a Sig Sauer. It was owned by William Rivera. Following the incident, Rivera told Carr that [the victim] fired first and he was just shooting back.^[[4]^]

“Prior to the incident, Buckingham had purchased a Glock 40 handgun for purposes of self-defense. He remembered last seeing the gun on the kitchen counter about 2:00 a.m. on the morning of the shooting. After the incident the Glock was no longer there.

“San Bernardino County Sheriff’s Detective Steven Pennington and criminalist Hazel Whitworth testified that the Glock and the Sig Sauer were the only two weapons fired in the apartment. Whitworth believed that at least two shots were fired from the Sig Sauer and that the Glock was fired at least four times. [The victim] suffered three gunshot wounds to the chest; he died from a shot to the left side of his chest. William Matty, employed in the firearms division of the San Bernardino County Sheriff’s Department crime lab, testified that while the Glock could not have fired the bullet retrieved from [the victim]’s heart, the Sig Sauer could have.

“After defendant and his companions left the apartment, Buckingham ran outside and saw [the victim] on the ground. [The victim] was breathing heavily and blood was coming from his chest. After calling 911, Buckingham returned to [the victim], who seemed to be no longer alive. Buckingham saw no firearm in the vicinity.

“Fava and defendant left the apartment complex in defendant’s vehicle. As Rivera was leaving in his car, he stopped to pick up Carr, who was walking in the vicinity. Rivera and Carr drove to Carr’s house. While in the backyard, Rivera pulled two guns from his jacket. Carr testified that one of the guns looked like the gun that [the victim] was handling prior to the shooting. Rivera told Carr that as he was leaving the apartment he picked the gun up off the ground; [the victim], who was on the ground, was still moving.

“Carr and Rivera drove into the nearby hills and hid the guns under some rocks. Detective Pennington later retrieved both guns.^[[5]^]” (People v. Lewis, supra, E050174.)

DISCUSSION

A. THE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE FOR RELIEF UNDER SECTION 1170.95[6]

In this case, the trial court denied defendant’s petition at the final stage of review, finding beyond a reasonable doubt after a hearing pursuant to section 1170.95, subdivision (d)(1), that defendant was ineligible for resentencing because he was a major participant and acted with reckless indifference to human life. Defendant contends that the trial court erred in finding him ineligible for relief because there was insufficient evidence that he was a major participant in the underlying robbery and burglary, and that he acted with reckless indifference to human life. For the reasons set forth post, we find that the trial court properly found defendant ineligible for relief under section 1170.95.

1. ADDITIONAL FACTS FROM THE SECTION 1170.95 HEARING

Here, at the section 1170.95 hearing, the parties relied on the record of conviction and did not introduce additional evidence. The trial court indicated that it had read the relevant portions of the trial transcript, the motions and responses filed by the parties, and the prior appellate decisions in this case. No additional evidence was presented or considered.

Defense counsel noted that that “there was some issue at trial and I think still to this day as to whether or not [defendant] himself was personally armed. I don’t believe that he was. That was never proven. I believe the only testimony that supported that was Mr. Buckingham’s.” Counsel then went on to argue that defendant’s “participation was, is not the higher level of participation that is required under Banks. I think it is more of the standard run of the mill participation that you would see in your average robbery or in your average burglary. While those acts may be inherently dangerous, that’s not the legal standard. . . . [¶] So if that’s the reason why [defendant] is found to be a major participant acting with reckless indifference then, therefore, that would kind of logically follow that anyone involved in a robbery would have to found a major participant with reckless indifference if a felony murder conviction was sustained against them. [¶] I don’t think this meets the standards of Banks required for being in participation and reckless indifference. That’s why I do believe that [defendant] should be resentenced to the underlying crimes, and the murder conviction should be vacated.”

The prosecutor responded by stating “that this was more than a garden variety robbery. It was a home invasion robbery of a drug dealer, who was known by these defendants to have firearms. [¶] Additionally, the evidence does show that [defendant] was armed per Mr. Buckingham. He had an up-close viewpoint when [defendant] was beating on him, specially described it as a Glock 19, 9[-]millimeter midsize firearm. And specifically also said that he was very familiar with guns because he used to work at a gun store. [¶] While it has never been the People’s position that [defendant] was the shooter in this case and the murder weapon was a Sig Sauer, the fact is that there was substantial evidence and significant evidence that [defendant] was armed.”

After hearing argument from both counsel, the trial court found that defendant “was, in fact, a major participant to the underlying felony and did act with reckless indifference to human life.”

The court then stated the following:

“Going through specifically the categories or the factors, the role of the defendant in planning the act that led to the death, [defendant] was—there were three separate incidents involving—that culminated in this murder. And [defendant] although he was not present at the second incident, the incident in the carport, he was present for the first incident, and then, once again, drove himself and Mr. Fava to the incident location where ultimately the murder occurred.

“So he was involved in planning the criminal enterprise. Even if it wasn’t planning to go murder someone, he was certainly involved in planning to go and participate in this home invasion robbery.

“The second factor, the role the defendant had in supplying or using lethal weapons. The testimony and the evidence was that [defendant] did, in fact, have a firearm. Even if that wasn’t the firearm that was used for the murder, he did, per the testimony, have a firearm and have it with him when he was in the home and beating up Mr. Buckingham, also a victim in this case. Again, although he was not a murder victim, he was still a victim in the case. And there was substantial involvement by [defendant].

“The third factor, the awareness that he had of particular dangers imposed by the nature of the crime, weapons used, past experience and conduct of other participants. Well, there had been previously beatings. A beating was taking place. He knew there were guns there. They were looking for guns. He had a gun.

“The fourth, whether the defendant was present at the scene of the killing. It is uncontroverted that he was inside the home when the shooting took place and walked by the victim who was laying in the doorway.

“The fifth factor, whether the defendant was in a position to facilitate or prevent the actual murder. He certainly didn’t do anything to stop this from happening. He didn’t do anything to deescalate. He didn’t do anything to stop and try to help. I don’t know that he could have helped once the shooting had occurred. But he was in a position that he could have.

“Sixth factor, whether the defendant’s own actions or inactions played a particular role in the death. He was with multiple people. There were four people. He drove there. He brought Mr. Fava with him in his vehicle. He went into the house. He was beating up Mr. Buckingham. He had a gun. All of those things led to [the victim’s] shooting and being shot.

“The final factor, whether the defendant acted in a particular way after lethal force was used. He left. To leave he had to walk right by [the victim], who was laying on the ground after he had been shot.

“When you add all of these factors up, it’s clear to the Court that [defendant] was, in fact, a major participant, and [defendant] did, in fact, act with reckless indifference to human life. And the motion and request for resentencing will be denied.”

2 ANALYSIS

Effective January 1, 2019, Sen. No. 1437 was enacted to “amend the felony-murder rule and the natural and probable consequences doctrine, as it relates to murder, 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, subd. (f).) It accomplished this by amending section 188, which defines malice, to add a requirement that all principals to a murder must act with express or implied malice to be convicted of that crime. (Id., § 2, subd. (a).) It also amended section 189, which defines the degrees of murder, by adding a condition to the felony-murder rule. Henceforth, in order to be convicted of felony murder, a defendant who was neither the actual killer nor a direct aider and abettor to the murder must have been a major participant in the underlying felony who acted with reckless indifference to human life. (Id. at § 3, subd. (d)(3); see Lewis, supra, 11 Cal.5th at pp. 959-960; People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)

“In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.) Thus, section 1170.95 allows those “convicted of felony murder or murder under a natural and probable consequences theory [to] 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.” (§ 1170.95, subd. (a).) The section goes on to describe what must be included in a petition for resentencing, and sets forth the procedure to be followed by a trial court upon receiving such a petition.

In its initial review of whether a petitioner has made a threshold showing that he or she falls within the provisions of section 1170.95, the court examines whether the petitioner has stated eligibility for relief. A petitioner must allege: (1) an accusatory pleading was filed against him or her allowing prosecution under the felony-murder rule or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she was convicted of first or second degree murder following a trial, or pleaded guilty to first or second degree murder in lieu of a trial at which he could have been so convicted (id., subd. (a)(2)); and (3) he or she could not today be convicted of first or second degree murder because of the 2019 amendments to sections 188 and 189 (id., subd. (a)(3)).

If the petitioner meets this facial showing of eligibility, the court must appoint counsel and entertain briefing from the prosecutor and appointed counsel. If, after briefing, the petitioner has established a prima facie case he or she is entitled to relief, i.e., if a showing regarding his or her eligibility has been made, the court must issue an order to show cause, and thereafter hold a full hearing to determine whether petitioner is entitled to relief. (§ 1170.95, subds. (c) & (d)(1); see also Lewis, supra, 11 Cal.5th at pp. 959-960.) “If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Lewis, supra, at p. 960.)

To be eligible for resentencing, defendant must show that he “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective” in Sen. No. 1437. (§ 1170.95, subd. (a)(3).) As we have described ante, Sen. No. 1437 amended section 189 to require, in all felony-murder cases, proof that the defendant was the actual killer, acted with the intent to kill, or “was a major participant in the underlying felony and acted with reckless indifference to human life.” (§ 189, subd. (e)(3); see People v. Gentile (2020) 10 Cal.5th 830, 841-843, superseded by statute on another ground as stated in People v. Hola 2022 Cal.App.LEXIS 303, *11.)

In October 2021, Senate Bill 775 (2021-2-22 Reg. Sess.) amended section 1170.95, effective January 1, 2022. Among other changes, the amendments clarify that at a section 1170.95 evidentiary hearing, the burden of proof is “on the prosecution to prove, beyond a reasonable doubt, . . . that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 51; see also People v. Clements (2022) 75 Cal.App.5th 276, 297.)

Although section 1170.95 establishes a multi-stage review process for the trial court to determine a defendant’s eligibility, the statute does not indicate that, when we review the trial court, we should repeat the final stage of that process with no deference to the trial court’s findings. On appeal, the judgment must be affirmed if the trial court’s denial of the petition is supported by substantial evidence. (People v. Williams (2020) 57 Cal.App.5th 652, 663.) When reviewing for substantial evidence, we examine the evidence in the light most favorable to the judgment. We determine whether the evidence is reasonable, credible, and of solid value, so that a reasonable factfinder could make the necessary finding. If the finding is supported by substantial evidence, we will give it deference. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Westerfield (2019) 6 Cal.5th 632, 713.)

3. SUBSTANTIAL EVIDENCE SUPPORT’S THE TRIAL COURT’S FINDING

Under the substantial evidence standard of review, we find that substantial evidence supports the trial court’s finding that defendant was a major participant who acted with reckless indifference to human life in the robbery/burglary.

In People v. Banks (2015) 61 Cal.4th 788 (Banks) the Supreme Court set out a series of factors relevant to determining whether a defendant’s participation in a felony “was sufficiently significant to be considered ‘major.’ ” (Id. at p. 803.) These factors are: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Ibid., fn. omitted.)

After listing the relevant factors to determining whether a defendant was a major participant, the Supreme Court in Banks cautioned that “[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation ‘in criminal activities known to carry a grave risk of death [citation] was sufficiently significant to be considered ‘major.’ ” (Banks, supra, 61 Cal.4th at p. 803.)

Subsequently, in People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court elaborated on the Banks case. To determine whether a defendant exhibited a reckless indifference to human life, a court should look at: the defendant’s knowledge of weapons, including the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the offensive conduct and “whether a murder came at the end of a prolonged period of restraint of the victims by defendant”; the defendant’s awareness that his cohorts were likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime. (Clark at pp. 616-623.)

Applying the Banks and Clark factors, as the trial court did in this case, we find that substantial evidence supports the finding that defendant was a major participant in the burglary/robbery and that he acted with indifference to human life during the commission of the crimes.

a. Defendant Was A Major Participant

First, substantial evidence supports the trial court’s finding that defendant was closely involved with the planning and execution of the armed robbery/burglary.

In this case, prior to the robbery when the murder occurred, defendant and Fava went to Buckingham’s apartment, beat him, and stole his gun. Weeks later, defendant returned to the same apartment, with the same cohort and two additional people. Defendant joined the group even after two of the cohorts discussed, in defendant’s presence, beating up Buckingham again. With defendant’s participation in the prior incident, the discussion among the codefendants, and defendant driving one of the cars containing the perpetrators to Buckingham’s apartment, the evidence amply supports defendant’s active role in planning the robbery.

Defendant’s actions after he drove to Buckingham’s apartment also demonstrate that defendant was a significant participant in the plan and instrumental in carrying out the plan. The evidence showed that defendant was present when the murder took place. Defendant entered Buckingham’s apartment, uninvited, with the other codefendants. Defendant then went to the bedroom and started beating up Buckingham.

Moreover, defendant was aware of the dangers posed by the nature of their crime, the weapons use, and the past experience and conduct of the participants. Defendant had his own violent encounter with Buckingham just three weeks prior; Fava was present during that incident, too. Defendant knew Buckingham possessed weapons since defendant stole a shotgun from Buckingham during the prior incident.

Additionally, defendant presented no evidence that he attempted to prevent the shooting in any way or that he made efforts to minimize the violence during the crime. Instead, defendant substantially contributed to the violence by choking Buckingham and then by simply leaving the scene of the crime instead of rendering aid to the murder victim.

Furthermore, defendant used a lethal weapon in the commission of the offense. Buckingham saw defendant holding a gun, and he only put the gun down in order to choke Buckingham. Notwithstanding, defendant contends that the record fails to support that defendant was personally armed by focusing on the evidence that Rivera fired the fatal shot. The People do not dispute that the fatal shot was fired by Rivera. However, the fact that Rivera was also armed, and was the actual killer, does not mean defendant was not armed. The finding by the court that defendant was armed during the robbery is supported by Buckingham’s testimony that defendant was armed. On appeal, we review the evidence in the light most favorable to the trial court’s ruling. Moreover, even if defendant was not holding a gun, the evidence discussed ante amply supports that defendant was a major participant in the robbery/burglary.

Based on the above, we find that there is substantial evidence to support the trial court’s finding that defendant was a major participant in the robbery/burglary.

b. Defendant Acted With Reckless Disregard for Human Life

There was also substantial evidence that defendant acted with reckless indifference to human life. “Although we state these two requirements [major participation in the felony committed and reckless indifference to human life] separately, they often overlap. For example, we do not doubt that there are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life. Moreover, even in cases where the fact that the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding.” (Tison v. Arizona (1987) 481 U.S. 137, 158, fn. 12.)

As explained in detail ante, the evidence of defendant’s major participation was overwhelming and the evidence amply establishes reckless indifference to human life.

For one, defendant was present when the victim was murdered. “Presence at the scene of the murder is a particularly important aspect of the reckless indifference inquiry.” (People v. Garcia (2020) 46 Cal.App.5th 123, 148.) It is even more so when it is evident that defendant was aware the robbery could be highly volatile; Rivera was armed when they went to the apartment; they knew that Buckingham, a drug dealer, would also be armed; and defendant and his cohorts have had escalating interactions with Buckingham.

Moreover, defendant actively participated in beating up Buckingham with Fava. When defendant and his cohorts arrived at the apartment, he and Fava went into Buckingham’s bedroom. Fava punched Buckingham 10 to 20 times. When defendant asked Buckingham where his “stash” was, Fava told defendant that they were not at the apartment for that, and told defendant “Do what we came to do.” Defendant then put down the gun he had been holding, put his hands around Buckingham’s neck, and chocked him for about 10 seconds; Buckingham began to lose consciousness.

Furthermore, after defendant saw that the victim got shot, he made no effort to offer the victim any aid. The court noted, “[Defendant] left. To leave he had to walk right by [the victim], who was laying on the ground after he had been shot.”

Based on the above, we find there is substantial evidence to support the trial court’s finding that defendant acted with reckless disregard for human life.

Therefore, we agree with the trial court that “when you add all of these factors up, it’s clear to the Court that [defendant] was, in fact, a major participant, and [defendant] did, in fact, act with reckless indifference to human life.”

DISPOSITION

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.

[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] The facts are taken from the unpublished opinion in case No. E050174.

[3] “In a statement to San Bernardino County Sheriff’s Detective John Gaffney, Rivera indicated that he was the person that asked, ‘[w]here’s the cash?’ or ‘[w]here’s the stash?’ Buckingham testified that defendant asked where the ‘stash’ or ‘cash’ was. Defendant told San Bernardino County Sheriff’s Detective John Minard that either Rivera or Fava asked, ‘[w]here the fuck are the guns?’ ”

[4] “Buckingham testified that defendant was the individual who not only trained the gun on him, but also the person that was firing the gun and shot and killed [the victim].”

[5] “Relevant events leading up to the incident were as follows: Fava and Buckingham initially met about five months before the incident. Shortly after meeting, a dispute arose between Buckingham and Fava’s girlfriend’s mother, to whom Buckingham was selling drugs. As a result, Fava and defendant went to Buckingham’s apartment. While there, defendant held Buckingham at gunpoint with Buckingham’s shotgun while Fava physically beat him. Fava and defendant left the apartment with Buckingham’s shotgun, a camcorder, and approximately $400 to $700. Following this incident, Buckingham purchased the Glock 40. Shortly before the murder, Fava again went to Buckingham’s apartment. At the time of this second visit, Buckingham was seated in his car in the parking lot of the apartment complex. Fava, Rivera, and a third person pulled their SUV in back of Buckingham’s car. Fava approached the driver’s window of Buckingham’s car, whereupon Buckingham aimed his Glock 40 at Fava. Buckingham then placed his car into reverse and rammed into the SUV. The SUV gave chase, but was lost by Buckingham’s vehicle.”

[6] We are aware of the Supreme Court’s opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), addressing the appropriate stage in section 1170.95 proceedings for appointment of counsel. This is not an issue in this case because the trial court appointed counsel for defendant, the parties briefed the petition, and the trial court held a hearing to determine whether defendant made a prima facie case for relief.