Filed 8/3/26 P. v. Lewis CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B341322
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA125019)
v.
DEVIN LAMONT LEWIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
******
Following an evidentiary hearing, the trial court ruled that
Devin Lamont Lewis (defendant) was not entitled to resentencing
under Penal Code section 1172.61 because the evidence showed,
beyond a reasonable doubt, that he aided and abetted an
attempted murder. Defendant appeals that ruling. Because
substantial evidence supports the trial court’s ruling, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crimes
Defendant and several others took an auto dealership by
force on April 5, 2010, shooting and killing two people, shooting
but not killing a third, and robbing many others at gunpoint.
The day before the robbery, defendant and three others met
at the home of his long-time friend Paul Jordan to rob the
residence of an employee of Custom City Auto Sales (Custom
City). At the meeting, they discussed how the employee may
need to be subdued or tied up at gunpoint, and someone passed
out several firearms. A subset of the group went to the
employee’s residence, but they aborted the plan.
On April 5, 2010, defendant, Jordan and three other men
again met at Jordan’s house. From there, they drove in separate
vehicles to a location near Custom City, and regrouped inside one
of the vehicles—a van. Someone passed out weapons, and both
1 When initially enacted, this was codified at section 1170.95.
All further statutory references are to the Penal Code unless
otherwise indicated.
2
defendant and Jordan took one, although it was unclear whether
defendant took a .38-caliber handgun or a different handgun.
Defendant then drove the van to Custom City and backed into a
parking space, making it so the van could leave quickly.
Around 8:00 p.m., defendant and Jordan entered the rear of
Custom City. Vance Dean, Christopher Williams and Mark
Richardson were just inside the rear door. Upon seeing two
armed men enter, Williams shoved one of the armed men and
hid; Dean started to argue. Dean was shot in the head, and died.
As defendant and Jordan moved past Richardson toward the
front of the store, Richardson started to run out the back door
and was shot in the back. Once outside, he was shot a second
time in the stomach by a third person running past him and into
Custom City.
As defendant and Jordan continued moving toward the
front of the store, they encountered a man named Melvin Hoard.
Jordan demanded money from him at gunpoint; despite Hoard’s
acquiescence, Jordan still pulled the trigger—but the gun’s safety
prevented it from going off. Defendant and Jordan then entered
a room near the middle of the store, where Jordan took money
from the pockets of Lejon Robins, who had gotten into a shoot-out
with someone and had been shot in the head. When defendant
and Jordan reached the front of the store, they pointed guns at
the people they found there, demanding and taking their
valuables. After one of their cohorts told them they had killed
another person, defendant and the others fled out the back and
drove away in the van.
Law enforcement pursued, which lead to a foot chase after
everyone scattered from the van. Defendant was one of the men
apprehended.
3
Defendant and Jordan both tested positive for gunshot
residue.
Defendant’s black velour sweatpants had bloodstains that
contained Richardson’s DNA.
B. Conviction and appeal
In the operative pleading, the People charged defendant
with (1) two counts of felony murder (§ 187), for Dean and Robins;
(2) attempted murder (§§ 187, 664), of Richardson; (3) assault
with a firearm (§ 245, subd. (a)(2)) for Williams; (4) five counts of
robbery (§ 211) of the individuals in the middle and front of the
store; and (5) possession of a firearm by a felon (§ 12021, subd.
(a)(1)). The People also alleged the special circumstance that the
murders were committed during the commission of a robbery (§
190.2, subd. (a)(17)(A)), that the attempted murder was
committed willfully, deliberately, and with premeditation, and
that a principal was armed with a firearm (§ 12022, subd. (a)(1))
in the commission of the murders, attempted murder, and
robberies. The People further alleged that each of defendant’s
two 1993 convictions for robbery constituted a “strike” within the
meaning of our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(j)), and that one of those robbery convictions
constituted a prior serious felony conviction (§ 667, subd. (a)(1)).
A jury convicted defendant on all counts and found all
allegations and enhancements to be true.2 Defendant admitted
he had suffered two prior strike convictions in 1993.
2 Anthony McLaurin and Jordan, who were jointly tried with
defendant, were found guilty of the same offenses, except that
McLaurin was not charged with possession of a firearm by a
felon. The others were tried separately.
4
The trial court imposed a prison sentence of two
consecutive terms of life without the possibility of parole, plus an
indeterminate term of 175 years to life, plus 47 years, calculated
as follows:
-- On each of the murder counts, the court imposed an
indeterminate term of life without the possibility of parole, plus a
consecutive one-year term for the principal armed enhancement
and a consecutive five-year term for the section 667, subdivision
(a) allegation;
-- On the attempted murder count, the assault with a
firearm count, and each of the five robbery counts, the court
imposed an indeterminate term of 25 years to life, plus a
consecutive five-year term for the section 667, subdivision (a)
enhancement, and stayed the one-year term for the principal
armed enhancement pursuant to section 654.3 (The court ran
these terms consecutively.)
A different panel of this court affirmed the judgment on
direct appeal. (People v. McLaurin et al. (Apr. 7, 2015, B250278)
[nonpub. opn.].)
II. Procedural Background
A. Initial petition
On February 19, 2019, defendant filed a petition seeking
resentencing under section 1172.6.
B. Summary denial and reversal on appeal
The trial court initially denied the petition on the ground
that the felony-murder special circumstance was found to be true.
We reversed that order. (People v. Lewis (Jul. 6, 2020, B298820)
[nonpub. opn.].) Defendant petitioned the Supreme Court for
3 The court stayed the sentence on Lewis’s firearm
possession conviction pursuant to section 654.
5
review. (People v. Lewis, review granted Aug. 13, 2020,
S263797.)
C. Second summary denial due to lack of
jurisdiction and second reversal on appeal
While defendant’s petition for review was still pending, the
People and defendant filed further briefs in the trial court. The
trial court again summarily denied defendant’s petition.
Defendant appealed again, and we reversed because the trial
court lacked jurisdiction because of the pending petition before
the Supreme Court. (People v. Lewis (Jul. 27, 2022, B311205)
[nonpub. opn.].)
D. Evidentiary hearing
Following further briefing on remand, the trial court held
an evidentiary hearing on October 4, 2024. The parties
submitted the transcripts from trial, and defendant also testified,
denying all knowledge and involvement in the events at Custom
City. After entertaining oral argument, the trial court denied
defendant’s section 1172.6 petition. Finding defendant’s
testimony at the hearing to be “absolutely untruthful,” the court
also found beyond a reasonable doubt that (1) defendant was
guilty of the murders of Dean and Robins because he was a major
participant in the robbery who acted with reckless disregard for
human life, and (2) defendant was guilty of the attempted
murder of Richardson because he directly aided and abetted that
attempted murder.
E. Appeal
Defendant filed this timely appeal.
6
DISCUSSION
On appeal, defendant contends that the trial court’s finding
that he directly aided and abetted in the attempted murder of
Richardson is not supported by the record.4
I. Pertinent Law
In 2018, our Legislature amended the definition of
“murder” in our state to preclude a jury from “imput[ing]” the
“[m]alice” element of that crime “based solely on [a defendant’s]
participation in a crime.” (§ 188, subd. (a)(3).) In 2022, our
Legislature amended the law to specify that section 1172.6
provides relief to defendants convicted of attempted murder
under a natural and probable consequences theory. (Stats. 2021,
ch. 551, § 2, subd. (a); People v. Delgadillo (2022) 14 Cal.5th 216,
223, fn. 3 (Delgadillo).) Our Legislature’s purpose was to ensure
that “[a] person’s culpability for murder [is] premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch.
1015, § 1, subd. (g).) Section 1172.6 is the procedural vehicle by
which persons convicted in now-final judgments can seek to
vacate convictions that rely upon theories of homicide or
attempted homicide that are now invalid. (§ 1172.6, subd. (a).)
Where, as here, a defendant files a facially sufficient petition and
the record does not otherwise foreclose relief as a matter of law,
the trial court must convene an evidentiary hearing, where the
People have the burden of proving to the trial court, acting as an
independent factfinder, that a defendant is guilty on a still-valid
theory beyond a reasonable doubt. (§ 1172.6, subd. (d)(3).)
“‘[D]irect aiding and abetting remains a valid theory of
attempted murder.’” (People v. Ramos (2024) 103 Cal.App.5th
4 Defendant does not attack the trial court’s finding that he
is guilty of the murders of Dean and Robins.
7
460, 465.) A person is guilty of directly aiding and abetting an
attempted murder if (1) the perpetrator commits the crime of
attempted murder, (2) the defendant “‘give[s] aid or
encouragement’” to the perpetrator, and (3) the defendant knows
of the perpetrator’s intent to kill and shares that intent to kill.
(People v. Nguyen (2015) 61 Cal.4th 1015, 1054; People v. Curiel
(2023) 15 Cal.5th 433, 467 [elements of aiding and abetting];
People v. Canizales (2019) 7 Cal.5th 591, 602 [elements of
attempted murder].) Evidence of a defendant’s knowledge and
intent is “‘almost inevitably circumstantial.’” (Nguyen, at p.
1055.) Evidence “relevant” to whether a defendant has, by act or
advice, aided or encouraged an attempted murder includes
“‘presence at the scene of the crime, companionship, and conduct
before and after the offense.’” (Id. at p. 1054.)
In evaluating the trial court’s finding that defendant is
guilty of directly aiding and abetting in Richardson’s murder, we
apply the substantial evidence standard of review. (See People v.
Sifuentes (2022) 83 Cal.App.5th 217, 233-234.) In so doing, we
ask whether any rational trier of fact, when viewing the record in
the light most favorable to guilt, could have found the defendant
guilty on that theory beyond a reasonable doubt. (People v.
Vargas (2022) 84 Cal.App.5th 943, 951; People v. Kraft (2000) 23
Cal.4th 978, 1053-1054.)
II. Analysis
Substantial evidence supports the trial court’s finding that
defendant directly aided and abetted in the attempted murder of
Richardson. It is undisputed that the direct perpetrator(s)
(assuming the shooter was not defendant)5 committed the crime
5 If defendant was the actual killer, he remains liable under
section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 233.)
8
of attempted murder on Richardson because Richardson was shot
twice—once in the back and a second time in the stomach.
Substantial evidence supports the finding that defendant aided
or encouraged the shooter in the interior hallway of Custom City
because he was present in the hallway while armed, and thus
able to back-up, embolden and support the perpetrator who shot
Richardson. And substantial evidence supports the finding that
defendant knew of the shooter’s intent to kill and shared that
intent. Whether or not defendant knew of Jordan’s intent to kill
or himself harbored an intent to kill prior to entering Custom
City, defendant was present when Jordan shot Dean in the head.
At that point, defendant knew Jordan had the intent to kill. By
choosing to remain at Jordan’s side as they penetrated deeper
into the Custom City building and while aware that they would
likely encounter others in the building (whom Jordan would treat
similarly), defendant exhibited that he also harbored an intent to
kill. (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733,
742 [“advance knowledge is not a prerequisite for liability as an
aider and abettor. ‘Aiding and abetting may be committed “on
the spur of the moment,” that is, as instantaneously as the
criminal act itself.’”]; see People v. Campbell (1994) 25
Cal.App.4th 402, 409 [finding lack of surprise by confederate’s
conduct supported inference of aiding and abetting].) Defendant
and Jordan encountered Richardson in the hallway mere
moments later (as confirmed by Richardson’s DNA in the blood
on defendant’s sweatpants as well as the gunshot residue on
defendant’s hands), at which point either Jordan or defendant
shot him in the back. (People v. Stone (2009) 46 Cal.4th 131, 140
[“a person who intends to kill can be guilty of attempted murder
even if the person has no specific target in mind”].)
9
Defendant resists this conclusion with four arguments.
First, he argues that the evidence does not establish that
he fired his firearm during the robbery. For support, defendant
points to the testimony of one witness who initially told law
enforcement that defendant had the .38 handgun, which other
evidence showed was never fired inside Custom City. This
argument fails factually and legally. It fails factually because the
same witness later expressed doubt about whether defendant had
the .38-caliber handgun (such that we indulge the presumption
that defendant had one of the other guns that was fired inside
Custom City).6 More to the point, it fails legally because it does
not matter whether defendant fired his weapon—that he held a
weapon and used it to assist and embolden Jordan is enough to
establish the actus reus of direct aiding and abetting.
Second, defendant argues that the presence of Richardson’s
DNA in the blood on defendant’s sweatpants establishes, at most,
that defendant was merely present. To be sure, mere presence at
the scene of the crime is not enough by itself to establish aiding
and abetting liability. (People v. Stankewitz (1990) 51 Cal.3d 72,
90.) But here, as explained above, defendant was more than
merely present by happenstance in the hallway when Richardson
was shot. He was present because he helped plan the robbery (as
well as the aborted robbery the day before), met with everyone in
the van, drove the van to the location, and stormed the rear
entrance with Jordan.
6 In his reply brief, defendant argues that the witness’s later
testimony did not indicate that defendant had any gun. We
disagree, as the witness testified that he was not sure which gun
defendant possessed—which necessarily indicates he had some
gun.
10
Third, defendant argues that Richardson did not positively
identify the persons who shot him inside or outside Custom City.
The trial court had ample basis to reject defendant’s position that
he was not there at all, including the evidence that Richardson’s
DNA was in the blood on defendant’s sweatpants.
Fourth and lastly, defendant argues that the trial court
chose to affirm defendant’s murder convictions on an implied
malice theory (rather than an express malice theory), and urges
us to treat the trial court’s choice of rationale as a concession by
that court that defendant lacked the intent to kill Dean and
Robins, such that defendant necessarily lacked the intent to kill
Richardson. We reject the premise of this argument. The trial
court’s decision to find guilt on one basis rather than another
does not constitute a rejection of the other basis. As noted above,
there is ample evidence that defendant directly aided and abetted
Richardson’s attempted murder.
11
DISPOSITION
The order of October 4, 2024, denying defendant’s section
1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, P. J.
HOFFSTADT
We concur:
_________________________, J.
BAKER
_________________________, J.
KIM (D.)
12