Filed 7/23/15 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



THE PEOPLE,

         Plaintiff and Respondent,                                       E060430

v.                                                                       (Super.Ct.Nos. FRE03786 &
                                                                          FSB903645)
LORAN L. LEWIS,
                                                                         OPINION
         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.

         Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy A.

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       Defendant and appellant Loran L. Lewis appeals after the trial court denied his

petition for three strikes resentencing, pursuant to Penal Code section 1170.126. He

contends that the trial court erred in denying his request because it mistakenly believed

defendant was ineligible based on his conviction of two counts of second degree murder

in his original trial in 2001. Defendant points out that the two murder convictions were

later reversed on appeal, leaving only non-serious and non-violent felony convictions to

support his three strikes sentence in that case. The People respond that, although

defendant is technically eligible for discretionary resentencing, the ruling should be

affirmed because there is no realistic probability that the trial court would have exercised

its discretion to reduce defendant’s three strikes sentence. Defendant urges that the

statute and considerations of due process require the trial court to exercise its discretion

on the issue in the first instance. We agree with the defendant, and we reverse and

remand for the trial court to exercise its discretion on the issue whether reduction of

defendant’s sentence poses an unreasonable risk of danger to public safety.

                        FACTS AND PROCEDURAL HISTORY1

       In 1999, defendant and a companion, Tyrone Murphy, stole a van from a parking

lot, and later abandoned it; the two men then stole a sport utility vehicle (SUV) from the


       1  The People have asked this court to take judicial notice of the appellate record
of the trial underlying the convictions as to which defendant sought resentencing. The
material is helpful to an understanding of the factual background and procedural history
of the case, as well as the substantive issues to be decided in this appeal. We grant the
request to take judicial notice of the appellate record in People v. Lewis (May 19, 2006,
E031035 [nonpub. opn.]).


                                              2
driveway in front of an occupied residence in Redlands. Redlands police officers Kelvin

Bryant and Steve Crane were in their patrol car when they received a dispatch

notification about the stolen SUV. They spotted the SUV and began to follow it.

Defendant, who was driving the SUV, drove erratically, running through stop signs, and

swerving into oncoming traffic lanes to get around other vehicles. The officers turned on

their lights and siren, and pursued the SUV.

       Defendant failed to yield to the pursuing police car, and soon drove onto the

freeway. Once on the freeway, defendant crossed several lanes of traffic without

signaling. The officers positioned their patrol car behind defendant; he responded by

swerving abruptly to an off ramp, narrowly missing a large truck and almost causing the

officers to crash into a barrier wall. The off ramp led to a transition road that intersected

Alabama Street; defendant drove the SUV through the Alabama Street intersection at

approximately 78 miles per hour against a red light. Defendant collided with another

vehicle, a small passenger sedan. The force of the impact propelled the sedan sideways

causing it to glance off a guardrail and spin for a distance of 149 feet before coming to

rest. The occupants of the sedan, Michael and Joan Grizzell, were killed instantly. The

force of the impact was so great that Michael Grizzell suffered fractures of the skull, jaw,

ribs and spine. His internal organs were torn from their places, and his heart and

abdomen were torn. Joan Grizzell suffered fractures of several bones, including her

pelvis. Her heart was torn and her spine was severed.




                                               3
       After the collision, defendant and Murphy fled on foot from the crashed SUV.

Both men were apprehended a short distance away.

       As a result of these incidents, defendant and Murphy were charged in 2001 with

two counts of murder (Pen. Code, § 187, subd. (a)), one count of driving with willful

and wanton disregard for the safety of persons and property to evade a police officer

(Veh. Code, § 2800.2, subd. (a)), and two counts of unlawful taking and driving a vehicle

(Veh. Code, § 10851, subd. (a)). Defendant was also alleged to have suffered two prior

strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

       The case was initially tried on a felony-murder theory. In 2001, a jury convicted

defendant and his codefendant Murphy of all counts. The court found the strike

allegations true. The court sentenced defendant to 140 years to life: 45 years to life for

each of the murder counts (15 years to life, tripled as a third strike), and 25 years to life

(third strike sentences) for each of the taking and driving counts. The court stayed the

sentence on the count of evading a police officer.

       In March 2003, this court affirmed the judgment in its entirety. (People v. Lewis,

supra, E031035.) We issued our remittitur on June 16, 2003.

       In January 2005, the California Supreme Court held in People v. Howard (2005)

34 Cal.4th 1129, that a violation of Vehicle Code section 2800.2, subdivision (a), is not a

proper basis for a felony-murder conviction, because that offense is not inherently

dangerous to human life. The holding in Howard affected defendant’s case, because the

murder convictions had been based on a felony-murder theory, predicated on violation of



                                               4
Vehicle Code section 2800.2, subdivision (a). In April 2005, this court recalled the

remittitur in defendant’s case. On rehearing, we issued a decision in People v. Lewis

(2006) 139 Cal.App.4th 874, affirming the convictions as to the count of evading an

officer, and the two counts of unlawful taking and driving of a vehicle, but reversing the

convictions as to the two murder counts. Although the two murder counts had been

reversed, defendant still remained subject to a three strikes sentence of 25 years to life on

the remaining felony convictions.

       In September 2006, the prosecutor filed a second amended information, realleging

the two murder counts. Three years later, in September 2009, the People moved to

dismiss the two murder counts. In December 2009, the People filed an information under

a new case number, alleging the same two counts of murder that had been previously

dismissed. In April 2010, the information in the new case was amended to add two

counts of voluntary manslaughter. (Pen. Code, § 192, subd. (a).) On the same date,

defendant entered into a plea agreement to plead guilty to two counts of voluntary

manslaughter, with an agreed sentence of three years, concurrent, on each count. The

murder counts would be dismissed, and the strike allegations would also be dismissed.

The concurrent sentences on the voluntary manslaughter counts would be run

consecutively to the three strikes sentences in the earlier case arising from the same facts,

i.e., 25 years to life, stayed, as to the conviction for evading the police, 25 years to life on

one count of unlawfully taking and driving a vehicle, and a consecutive term of 25 years




                                               5
to life on the second count of unlawfully taking and driving a vehicle. Defendant’s total

term for both cases was 53 years to life.

       In 2012, the “Three Strikes” law was amended, to provide in part that persons

sentenced as third strikers for offenses that were not themselves serious or violent

felonies could petition for resentencing as second strikers. Defendant filed such a

petition, pursuant to Penal Code section 1170.126, in November 2012. The trial court

denied defendant’s petition on November 27, 2012, finding that defendant was ineligible

because of the two counts of murder; the court was evidently not aware that the murder

convictions had been reversed on appeal.

       Defendant filed a notice of appeal, in propria persona on February 13, 2013. By

order pursuant to a writ petition, this court granted defendant’s request for constructive

filing of the notice of appeal, and deemed the notice of appeal timely.

       The crux of defendant’s resentencing petition is that, after the two murder

counts were reversed and dismissed, the only remaining counts in his original case were

non-serious, non-violent felonies (evading a police officer, unlawfully taking and

driving a motor vehicle). Defendant maintains that he is eligible under Penal Code

section 1170.126 for resentencing on those offenses as if he were a second striker, rather

than a third striker. We turn now to the merits of the claim.




                                             6
                                          ANALYSIS

             I. The Trial Court Denied Defendant’s Petition for Resentencing

                                   for an Erroneous Reason

       Under Proposition 36, the Three Strikes Reform Act of 2012 (the Act), a

defendant convicted of two prior serious or violent felonies is subject to the 25-year-to-

life sentence only if the third felony is itself a serious or violent felony. If the third

felony is not a serious or violent felony, the defendant will receive a sentence as though

the defendant had only one prior serious or violent felony conviction, and is therefore a

second strike, rather than a third strike, offender. The Act also provides a means whereby

prisoners currently serving sentences of 25 years to life for a third felony conviction,

which was not a serious or violent felony, may seek court review of their indeterminate

sentences and, under certain circumstances, obtain resentencing as if they had only one

prior serious or violent felony conviction. According to the specific language of the Act,

however, a current inmate is not entitled to resentencing if the reduced sentence would

pose an unreasonable risk of danger to public safety. (People v. Manning (2014) 226

Cal.App.4th 1133, 1137-1138.)

       Defendant urges that he technically qualifies for resentencing on the three counts

remaining from his original trial, because the murder counts in that case were reversed

and dismissed. The remaining third strike felony convictions were not for serious or

violent felonies. (Pen. Code, § 1170.126, subd. (a).) The court below denied his petition

for resentencing for an admittedly erroneous reason: the court mistakenly relied on the



                                                7
two murder convictions to find defendant ineligible for resentencing, not realizing that

those two convictions had been reversed on appeal and later dismissed. The question is

whether defendant is nevertheless ineligible based on criteria set forth in Penal Code

section 1170.126.

       Penal Code section 1170.126, subdivision (e), provides that certain three strikes

inmates are excluded from eligibility for resentencing. “(e) An inmate is eligible for

resentencing if: [¶] (1) The inmate is serving an indeterminate term of life imprisonment

imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of

Section 1170.12 for a conviction of a felony or felonies that are not defined as serious

and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of

Section 1192.7. [¶] (2) The inmate’s current sentence was not imposed for any of the

offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2)

of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of

paragraph (2) of subdivision (c) of Section 1170.12. [¶] (3) The inmate has no prior

convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of

paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of

paragraph (2) of subdivision (c) of Section 1170.12.” (Pen. Code, § 1170.126, subd. (e).)

       The key point is whether defendant is eligible for resentencing under

subparagraph (3) of Penal Code section 1170.126, subdivision (e). Does defendant




                                              8
have “prior convictions”2 for offenses listed in Penal Code section 667,

subdivision (e)(2)(C)(iv), and Penal Code section 1170.12, subdivision (c)(2)(C)(iv)?

The answer is “no.” That is, although defendant has been convicted of two homicide

offenses—voluntary manslaughter (Pen. Code, § 192, subd. (a))—arising from the same

events as his non-violent and non-serious felony third strike convictions, those homicide

convictions do not fall within the scope of Penal Code sections 667,

subdivision (e)(2)(C)(iv)(IV) and 1170.12, subdivision (c)(2)(C)(iv)(IV). Both of those

provisions make ineligible prisoners convicted of “Any homicide offense, including any

attempted homicide offense, defined in Sections 187 to 191.5, inclusive.” Defendant’s

homicide convictions were for voluntary manslaughter under Penal Code section 192,

which lies outside the range of disqualifying homicide offenses. Defendant was therefore

technically eligible for (not automatically disqualified from) resentencing.

  II. Because Defendant Is Technically Eligible for Resentencing, Remand Is Required

       Because the manslaughter convictions did not render defendant ineligible for

resentencing, we now turn to the question whether to remand for the trial court’s

reconsideration of the petition.


       2  To the extent defendant argues that he does not have a “prior” conviction for a
disqualifying offense, because he did not plead guilty to the voluntary manslaughter
counts until after he was convicted of the non-serious, non-violent felonies, we reject the
contention. We construe a “prior” conviction, in this context, to mean that the conviction
is of record before the time the court decides the inmate’s petition for recall of sentence.
Defendant here suffered his voluntary manslaughter convictions in 2010, well before his
petition in November 2012, and they arise from the identical facts as his former murder
convictions, which were entered at the same time as his other felony offenses.


                                             9
       Penal Code section 1170.126, subdivision (f), provides that the court need not

reduce a defendant’s sentence if, in the exercise of its discretion, the court finds that

doing so would pose an unreasonable risk to public safety. Penal Code section 1170.126,

subdivision (g), lays out the criteria to be considered by the court: “(g) In exercising its

discretion in subdivision (f), the court may consider: [¶] (1) The petitioner’s criminal

conviction history, including the type of crimes committed, the extent of injury to

victims, the length of prior prison commitments, and the remoteness of the crimes; [¶]

(2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated;

and [¶] (3) Any other evidence the court, within its discretion, determines to be relevant

in deciding whether a new sentence would result in an unreasonable risk of danger to

public safety.”

       Because of its erroneous decision on the threshold issue of defendant’s eligibility

to request resentencing, the trial court never considered the second step of analysis under

the statute: whether a reduction of defendant’s sentence would pose an unreasonable risk

of danger to public safety. The People urge this court to make the determination based

on the record before us, but this we cannot do.

       With respect to the components of due process applicable to three strikes

resentencing proceedings, we note that Penal Code section 1170.126 provides for a two-

step analysis. First, there is an initial screening to determine whether a prisoner has made

a prima facie showing of eligibility for resentencing. If, and only if, a petition makes

such a prima facie case, the matter proceeds to a second determination: the sentencing



                                              10
court, in the exercise of its discretion, may deny resentencing if a reduction in the

prisoner’s sentence poses an unreasonable risk to public safety.

       A petitioning defendant is not entitled to an evidentiary hearing on the initial

screening phase. (People v. Oehmigen (2014) 232 Cal.App.4th 1, 6 [“The statute accords

[a defendant] the right to a resentencing hearing only upon a showing that he is eligible.

It is not a right to a hearing on the issue of eligibility, followed by the hearing on whether

he would present a risk of danger to the public if resentenced” (italics omitted)]; see

People v. Kaulick (2013) 215 Cal.App.4th 1279, 1298-1299, fns. 21 and 23 [suggesting

that, if only the undisputed record of conviction is considered on the question of

eligibility, a defendant does not have a right to a hearing on the issue]; see also People v.

Bradford (2014) 227 Cal.App.4th 1322, 1337 [an evidentiary hearing is not contemplated

by the statute at the initial eligibility stage].) Analogously, it has been held that the Sixth

Amendment right to appointment of counsel does not apply to the initial eligibility

screening. (See People v. Denize (2015) 236 Cal.App.4th 966, 971 [a defendant is

entitled to the assistance of counsel at a sentencing hearing, but the initial screening of a

Pen. Code section 1170.126 petition to determine eligibility for resentencing is not a

sentencing hearing].)

       “[N]o particular statutory procedure describes how the trial court is to go about

making the eligibility determination,” however. “Consequently, it is necessary for the

courts to determine what evidence should be considered and whether to impose additional

procedural protections to protect the due process rights of the parties to be heard.”



                                              11
(People v. Bradford, supra, 227 Cal.App.4th 1322, 1337, citing People v. Kaulick, supra,

215 Cal.App.4th 1279, 1299, fn. 21 [suggesting in dictum that the People may have the

right to present evidence if a court’s determination is based on anything other than the

undisputed record of conviction].) The Oehmigen court repeated the holding in Bradford

on the limited due process protections attaching to the eligibility determination: “The

petitioner has a right to provide ‘input’ in the form of briefing ‘if the petitioner has not

addressed the issue [of eligibility in the petition] and the matter of eligibility concerns

facts that were not actually adjudicated at the time of the petitioner’s original conviction

(as here)’; the People also have the right to submit a brief in response if the trial court sets

a hearing on dangerousness (indicating that it made a preliminary determination of

eligibility) in order to highlight facts in the record they assert establish ineligibility.”

(People v. Oehmigen, supra, 232 Cal.App.4th 1, 7-8.)

       Once a prima facie case for eligibility has been shown, the discretionary

determination—whether a prisoner is to be resentenced, or whether the reduction in

sentence would pose an unreasonable risk of danger to public safety—does require an

evidentiary hearing. (See People v. Kaulick, supra, 215 Cal.App.4th 1279, 1297-1298 &

fn. 20 [finding the People have a due process right to notice and opportunity to be heard

on the issue of danger to the public at such a hearing].)

       Because the trial court here denied defendant’s petition at the eligibility stage, and

for an improper reason, it never provided the required hearing or addressed the issue of

defendant’s dangerousness to the public. Accordingly, remand is required for the trial



                                               12
court to hold the mandated hearing, and to exercise its discretion with respect to the

dangerousness issue. We express no opinion as to the result of any such hearing.

                                      DISPOSITION

       For the reasons stated, the order denying defendant’s petition for resentencing

under Penal Code section 1170.126 is reversed and remanded for further proceedings

consistent with this opinion.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                McKINSTER
                                                                                         J.
We concur:



RAMIREZ
                        P. J.



CODRINGTON
                           J.




                                            13
