Filed 8/24/20 P. v. Gray CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                                        G058895

                    v.                                                 (Super. Ct. No. RIF127539)

 LEWIS GRAY IV,                                                        OPINION

      Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Riverside
County, John D. Molloy, Judge. Affirmed.
                   Neil Auwarter, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.


                                             *               *               *
              In 2011, a jury convicted appellant Lewis Gray IV on four counts, as
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follows: first degree murder (Penal Code, § 187, subd. (a); count 1) ; conspiracy to
commit murder (§ 182, subd. (a); count 2); attempted voluntary manslaughter, as a lesser
included offense of premeditated attempted murder, (§§ 664; 187, subd. (a); count 3); and
malicious discharge of a firearm at an inhabited dwelling. (§ 246; count 4.)
              On all counts, the jury found Gray committed his crimes to benefit a
criminal street gang (§ 186.22, subd. (b)). On count 1, the jury additionally found two
special circumstances true: Gray already had been convicted for a different murder and
committed the murder in this case as an active gang participant (§ 190.2, subds. (a)(2) &
(22).) On counts 1 and 2, the jury found Gray committed his crimes as a principal and as
a principal he discharged a firearm causing great bodily injury to benefit a gang.
(§ 12022.53, subds. (d) & (e).) On count 4, the jury found Gray personally used a
firearm. (§§ 667; 1192.7, subd. (c)(8).) In an unpublished opinion, this court reversed
the gang participant special circumstance for count 1 and ordered the correction of two
errors in the abstract of judgment, but affirmed the judgment in all other respects.
(People v. Gray (Dec. 10, 2014, as modified Jan. 7, 2015, G049823) [nonpub. opn.].)
              In 2019, Gray filed a petition to vacate his convictions under section
1170.95, alleging he was convicted “pursuant to the felony murder rule or the natural and
probable consequences doctrine.” The prosecutor moved to dismiss, asserting no felony
murder or natural and probable consequence instructions were given at trial. The
prosecutor also asserted that on count 1, the jury had been instructed through CALCRIM
No. 702 to find as true a special circumstance for a prior murder conviction to be true
only if it concluded Gray had either actually killed or acted with intent to kill in the
underlying shooting. Gray’s counsel did not disagree with the assertions and the court
dismissed Gray’s petition.
1
        All further undesignated statutory references are to the Penal Code.


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              Gray appealed, and his appointed appellate counsel filed a brief under the
procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.
California (1967) 386 U.S. 738 (Anders). Gray has not filed a supplemental brief.
Because our review of the record discloses no arguable issue, we affirm the postjudgment
order denying Gray’s section 1170.95 petition.
                                              I
                            FACTS AND PROCEDURAL HISTORY
              We discussed in detail the underlying facts in our earlier opinion. In 2002,
Gray and a group of men went uninvited to a home birthday party, seeking revenge for an
earlier altercation with someone attending the party. Gray and others from the group
opened fire into the home’s garage where bystander 13-year-old D.L. was struck in the
head by a bullet and died. Gray also shot into a second story bedroom window where
another individual, K.R., had observed Gray.
              As noted, in addition to convicting Gray for the first degree murder of D.L.,
the jury found two special circumstances true: Gray had intentionally killed D.L. as a
gang participant (§ 190.2, subd. (a)(22)) and previously been convicted for a different
murder. (§ 190.2, subd. (a)(2).) In our earlier opinion, we struck the gang special
circumstance based on instructional error but affirmed the prior murder conviction
special circumstance. (People v. Gray (Dec. 10, 2014, as modified Jan. 7, 2015,
G049823) [nonpub. opn.].) As noted, we also corrected two clerical errors in the
judgment abstract but affirmed the judgment in all other respects, including Gray’s
principal sentence term of life without the possibility of parole for his murder conviction.
              Following the Legislature’s enactment of Senate Bill No. 1437 (Sen. Bill
No. 1437), Gray filed a petition in the trial court for resentencing under section 1170.95.
The court received briefing from both Gray’s counsel and the District Attorney’s office.
As noted, the court dismissed Gray’s petition following the prosecutor’s representations
about the jury instructions given and not given at trial.

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              After Gray appealed the denial of his section 1170.95 petition, his
appointed appellate counsel filed a brief raising no issue, but asking this court to
independently review the appellate record. As noted, Gray has not filed a supplemental
brief.
                                              II
                                         DISCUSSION
              Following the Wende guidelines, we have reviewed counsel’s brief and the
entire appellate record. Per Anders, supra, 386 U.S. 738, counsel’s brief suggests four
potential legal issues to assist the court in its review: (1) “[w]hether the lack of jury
instructions on any theory of murder abrogated by Senate Bill 1437 rendered [Gray]
ineligible for relief under section 1170.95”; (2) “[w]hether the intent to kill element of the
section 190.2, subdivision (a)(2), . . . special circumstance renders [Gray] ineligible for
section 1170.95 relief”; (3) [w]hether the guilty verdict on conspiracy to murder was a
finding of intent to kill rendering [Gray] ineligible for relief under section 1170.95;
(4) “[w]hether [Gray] has a claim for relief under the change in the law of ‘kill zones’ as
to count 3 (attempted voluntary manslaughter as [a lesser included offense] of attempted
murder) under People v. Canizales (2019) 7 Cal.5th 591 [(Canizales)].”
              The Legislature enacted Sen. Bill No. 1437 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.’” (People v. Martinez (2019) 31 Cal.App.5th
719, 723, quoting Stats. 2018, ch. 1015, § 1, subd. (f).)
              The bill created section 1170.95 to allow persons “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,

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subd. (a).) Among others conditions, a petition should show “[t]he petitioner could not
be convicted of first or second degree murder because of changes . . . made . . . [by Sen.
Bill No. 1437].” (Id., subd. (a)(3).) The statute also provides in pertinent 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
makes a prima facie showing that he or she is entitled to relief, the court shall issue an
order to show cause.” (§ 1170.95, subd. (c).)
              We do not discern any arguable issue that might cast doubt on the trial
court’s denial of Gray’s section 1170.95 petition. It is clear Gray is not entitled to relief
under Sen. Bill No. 1437 because his convictions for counts 1 through 3 were all based
on charges that Gray was either the direct perpetrator or directly aided and abetted the
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murder, and each conviction included jury findings of intent to kill. (See CALCRIM
No. 702 [a true finding for prior murder conviction special circumstance under section
190.2, subd. (a)(2), requires a jury to find either the defendant was the actual killer or
acted with intent to kill as an accomplice]; § 189, subd. (e)(2) [Sen. Bill No. 1437 did not
alter felony murder liability for a defendant who assisted, with an intent to kill, the actual
killer]; see People v. Verdugo (2020) 44 Cal.App.5th 320 [section 1170.95 petition
properly denied where defendant was convicted of conspiracy to commit murder, a
specific intent crime], review granted March 18, 2020, S260493.) Sen. Bill No. 1437’s
benefits are not available to alter Gray’s convictions.
              No arguable issue is raised by counsel’s final potential issue noted above,
based on the recent change in the law on “kill zone” jury instructions under Canizales,
supra, 7 Cal.5th 591. Gray’s appeal of his dismissed petition does not provide ground for
an arguable issue based on Canizales because relief under section 1170.95 is not

2
        As noted, Gray’s conviction on count 4 was for maliciously discharging a firearm
at an inhabited dwelling. The crime does not involve killing a human being and Senate
Bill No. 1437 does not apply.

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available for Gray’s conviction for attempted voluntary manslaughter on count 3, as a
lesser included offense of attempted murder. (See People v. Medrano (2019)
42 Cal.App.5th 1001, 1018 [section 1170.95 relief does not apply to attempted murder
convictions], review granted March 11, 2020, S259948.)
             In sum, our review of the entire record, including the potential issues
identified by counsel, does not show the existence of an arguable issue. (Wende, supra,
25 Cal.3d at pp. 442-443.) Consequently, we affirm. (Id. at p. 443.)
                                           III
                                      DISPOSITION
             The postjudgment order denying Gray’s section 1170.95 petition is
affirmed.




                                                 ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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