Filed 7/8/26 P. v. Lewis CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B338939

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA009198
v.

HOMER TYRONE LEWIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed as
modified, remanded with directions.
Heather J. Manolakas for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Seth P. McCutcheon,
Deputy Attorneys General for Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
 MEMORANDUM OPINION1
Appellant Homer Tyrone Lewis appeals the superior court’s
resentencing of his 1996 convictions for nine counts of solicitation
to commit murder and nine counts of solicitation to commit a
crime, pursuant to Penal Code section 1172.75.2 He argues that
the court abused its discretion when it denied his request to
impose concurrent terms as a part of his resentencing. He also
contends that the court did not correctly calculate and award
custody credit.
We remand for the superior court to calculate the correct
number of days of custody credit but otherwise affirm the
judgment.
BACKGROUND
I. Facts3
While in custody pending prosecution on murder charges,
Lewis solicited a cellmate to murder several witnesses.
II. Trial court proceedings
On May 31, 1996, the jury found Lewis guilty of nine
counts of solicitation for murder (§ 653f, subd. (b); counts 1–9)

1 We resolve this appeal by memorandum opinion pursuant
to California Standards of Judicial Administration, section 8.1.
(People v. Garcia (2002) 97 Cal.App.4th 847, 850–855.)
2 All further undesignated statutory references are to the
Penal Code.
3 We refer to the factual background from Lewis’s petition for
recall and modification of sentence pursuant to section 1172.75.

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and nine counts of solicitation to commit a crime (§ 653f, subd.
(a); counts 10–18).
Lewis waived his right to a jury trial on the prior conviction
allegations. On July 10, 1996, the court found multiple prior
felony convictions under the Three Strikes law (§§ 667, subds.
(b)–(i), 1170.12, subds. (a)–(d)), including a conviction from 1986
for voluntary manslaughter (former § 192.1), and convictions
from 1983 for kidnapping (§ 207) and robbery (§ 211). The court
also found true two prior prison term enhancements under
section 667.5, subdivision (b).
On each count of solicitation for murder (§ 653f, subd. (b);
counts 1–9), the court imposed 25 years to life pursuant to the
Three Strikes law. For each of these counts, the court imposed
an additional two years for the prior prison term enhancements
(§ 667.5, subd. (b)). For each of the remaining counts (§ 653,
subd. (a); counts 10–18), pursuant to section 654, the court
imposed and stayed 25 years to life, plus two years for the prior
prison term enhancements (§ 667.5, subd. (b)). The total
sentence was 243 years to life. The court awarded credit of 725
days in custody, calculated as 604 actual days and 121 days of
local conduct credit.
III. Resentencing proceedings
In 2022, the Department of Corrections and Rehabilitation
informed the superior court that Lewis was eligible for
resentencing.4 After verifying that Lewis’s sentence included the

4 Senate Bill No. 136 (2019–2020 Reg. Sess.) amended
section 667.5 by invalidating prior prison term enhancements for
all offenses except sexually violent offenses. (Stats. 2019, ch. 590,
§ 1; People v. Burgess (2022) 86 Cal.App.5th 375, 379–380.)
Senate Bill No. 483 (2021–2022 Reg. Sess.) made the changes by

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invalid prior prison term enhancements under section 667.5,
subdivision (b), the court appointed counsel to represent him on
the resentencing proceedings.
On April 18, 2024, Lewis filed a petition for resentencing
under section 1172.75. The petition noted Lewis’s two
disciplinary violations since 2018 and highlighted his
employment from 2000 to 2022 and “satisfactory educational
performance and achievement” in prison. In his petition, Lewis
requested that the superior court impose concurrent sentences
when resentencing him after striking the invalid prior prison
term enhancements.5
On June 6, 2024, the court conducted a resentencing
hearing. Lewis’s attorney submitted on the written petition
without additional evidence or argument. The prosecutor
requested that the court strike the invalid prior prison term

Senate Bill No. 136 retroactive and added former section 1171.1,
now section 1172.75, which provided a mechanism for
resentencing defendants whose sentences included terms on the
invalid enhancements. (Stats. 2021, ch. 728, §§ 1, 3; Stats. 2022,
ch. 58, § 12.) The Department of Corrections and Rehabilitation
initially identifies those defendants currently serving a term that
included the invalid enhancement and forwards their information
to the superior courts. Upon verification of eligibility of relief, the
superior court recalls the sentence and conducts a resentencing
hearing. (Burgess, at p. 380.)
5 The petition appears to have inadvertently requested the
court to impose the low or middle term for an attempted murder
conviction for someone named “Mr. Reyes.” The petition also
requested that the court dismiss enhancements under section
186.22, subdivision (b). However, in this case, Lewis was not
convicted of attempted murder, nor was a gang enhancement
found true.

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enhancements but have “everything else remain.” The superior
court responded, “The court does agree given the defendant’s
background and the current offenses here and the way that this
all came about and the serious nature of the charges. As defense
counsel points out, these are super strikes. The context of him
being in custody on a pending murder charge and soliciting the
murder of the witnesses, obviously he poses a huge danger to
society.”
Pursuant to section 1172.75, the superior court struck the
two prior prison term enhancements which were previously
imposed as to each count. The court ordered that all other
sentencing terms remain the same as originally imposed and
resentenced Lewis to a total term of 225 years to life. The court
awarded 10,193 actual days of custody credit, calculated from
July 10, 1996 to June 6, 2024.
Lewis filed a timely notice of appeal.
DISCUSSION
I. Consecutive terms
A. No abuse of discretion
On appeal, Lewis argues that the superior court abused its
discretion when it imposed consecutive terms for his nine counts
of solicitation for murder. We disagree.
“Section 669 grants the trial court with broad discretion to
impose a consecutive sentence when a person is convicted of two
or more crimes. [Citations.]” (People v. Shaw (2004) 122
Cal.App.4th 453, 458; People v. Leon (2010) 181 Cal.App.4th 452,
468 (Leon).) The court may consider whether “(1) The crimes and
their objectives were predominantly independent of each other;
[¶] (2) The crimes involved separate acts of violence or threats of

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violence; or [¶] (3) The crimes were committed at different times
or separate places, rather than being committed so closely in time
and place as to indicate a single period of aberrant behavior.”
(Cal. Rules of Court, rule 4.425(a)(1)–(3).)
“Any circumstances in aggravation or mitigation, whether
or not the factors have been stipulated to by the defendant or
found true beyond a reasonable doubt at trial by a jury or judge
in a court trial, may be considered in deciding whether to impose
consecutive rather than concurrent sentences, except: [¶] (1) A
fact used to impose the upper term; [¶] (2) A fact used to
otherwise enhance the . . . sentence . . . ; and [¶] (3) A fact that is
an element of the crime.” (Cal. Rules of Court, rule 4.425(b)(1)–
(3).)
A trial court has discretion to impose consecutive terms
when a single act has resulted in crimes against multiple victims.
(Leon, supra, 181 Cal.App.4th at p. 468; People v. Calhoun (2007)
40 Cal.4th 398, 408.) Consecutive terms for one solicitation of
multiple victims are appropriate when the solicitation was for
separate acts of murder of specific victims. (People v. Cook (1984)
151 Cal.App.3d 1142, 1146.)
“In the absence of a clear showing of abuse, the trial court’s
discretion . . . is not to be disturbed on appeal. [Citation.]
Discretion is abused when the court exceeds the bounds of
reason, all of the circumstances being considered.” (People v.
Bradford (1976) 17 Cal.3d 8, 20.)
Lewis asserts that the court improperly imposed
consecutive terms based on the “ ‘serious nature of the crime[s]’
and the circumstances under which the crime[s] [were]
committed.” Lewis speculates that “it is impossible to determine”
whether the court improperly relied on an element of the charged

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offenses because the court’s use of the phrase “ ‘serious nature of
the crime’ ” was unclear.
But the court did not improperly rely on an element of the
crimes. Instead, it highlighted Lewis being in custody when he
committed the solicitation for the murder of the witnesses. The
court viewed Lewis’s solicitation as more egregious than a typical
solicitation because he demonstrated the ability to arrange
killings while he was in custody, where he presumably would
have had few resources. The offenses do not require the
defendant to be in custody at the time of the solicitation. We
conclude that the superior court did not improperly rely on any
factor in deciding to impose consecutive terms, nor was that
decision irrational or arbitrary. (People v. Carmony (2004) 33
Cal.4th 367, 376.)
B. No prejudice
Lewis argues that it is “impossible to say . . . whether [the
court] would have reached the same conclusion had it not
considered the elements of the crime as grounds for imposing
consecutive sentences.” We disagree.
Even assuming the superior court improperly relied on the
nature of the crimes to impose consecutive terms, that assumed
error was harmless. The court declared that it would impose the
same sentence under any circumstances, stating “And the court,
even if it had discretion to change the sentence in any other way,
would not find that it is in the interest of justice do so, and so the
sentence that was previously imposed will remain in all
respects.”
In addition to the grounds challenged by Lewis, the court
also stated that it was relying on his prior criminal record. As
the prosecutor emphasized at the resentencing hearing and as

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the Attorney General points out on appeal, Lewis has multiple
prior convictions for violent offenses, including kidnaping,
robbery, and voluntary manslaughter.6 Lewis’s numerous prior
convictions and their increasing seriousness supported the court’s
decision to impose consecutive terms. “Only one criterion or
factor in aggravation is necessary to support a consecutive
sentence.” (People v. Davis (1995) 10 Cal.4th 463, 552; People v.
Osband (1996) 13 Cal.4th 622, 728–729.)
Under these circumstances, it is not reasonably probable
that the court would have imposed concurrent terms or an
otherwise more favorable sentence. (People v. Gutierrez (2001)
227 Cal.App.3d 1634, 1638.)
II. Custody credits
Lewis argues, and the Attorney General agrees, that the
superior court awarded the incorrect number of days of credit. We
agree.
At the conclusion of the resentencing hearing, the superior
court awarded 10,193 actual days. This figure only reflected the
number of actual days from the original sentencing of July 10,
1996 to the resentencing of June 6, 2024. It did not include the
number of days of original presentence actual credit.
Additionally, the court did not indicate the original presentence
local conduct credit.
On remand, the resentencing court must recalculate the
actual time served to include the original presentence actual days
in custody and the number of days in custody from the original

6 Lewis was also in custody pending trial on two counts of
murder when he committed the offenses in the underlying case.
He was ultimately convicted of the two murder charges.

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sentencing to the resentencing. (People v. Buckhalter (2001) 26
Cal.4th 20, 29.) The court must also indicate the presentence
local conduct credit.
The most recent abstract of judgment reflects the original
presentence credit, as well as the credit awarded at the
resentencing. But the oral pronouncement controls when a
discrepancy exists between it and the abstract of judgment.
(People v. Burke (2023) 89 Cal.App.5th 237, 244.) We direct the
superior court to amend the final abstract of judgment upon
correcting the errors we have described. (People v. Mitchell
(2001) 26 Cal.4th 181, 188 [appellate court may order
modification of inaccuracies in abstract of judgment]; People v.
Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to
correct conduct credits].)

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 DISPOSITION
We remand and direct the superior court to calculate the
correct number of days of credit to award Lewis.
The clerk of the superior court is to prepare an amended
abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HANASONO, J.

We concur:

EGERTON, Acting P. J.

KARNOW, J.*

* Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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