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Criminal Defense Attorneys

SB 1437: To be Appointed Counsel, Show Prima Facie Case?

No is the answer to the rhetorical question posed in the title to this article, according to the California Supreme Court in its July 26, 2021, ruling in People v. Vince E. Lewis, a case that arose out of the Compton Superior Court.

We are aware that prior appellate court rulings have held that to be appointed counsel, the reviewing court must first find that petitioner has made a prima facie case.  One of the most well-known cases establishing this was People v. Verdugo (2020) 44 Cal. App. 5th 320, 327.  This Lewis case, however, states no such requirement should be imposed.

In 2012, Vince E. Lewis, along with codefendants Ariana Coronel and Miriam Herrera, were convicted of killing fellow Easy Riders gang member Darsy Noriega for her apparent disloyalty to the gang.

At trial, former codefendant Amy Aleman testified that Noriega was ordered to attend a gang meeting, which had been called by Lewis, on the night of her death.  During the meeting, Lewis told Aleman, Coronel, Herrera and Noriega to accompany him to buy beer, which they did.  After leaving the liquor store, Lewis drove around, eventually parking on a street near an alley.

Aleman, Herrera and Noriega got out of the car.  Lewis and Coronel remained in the car.  In the alley, Herrera shot Noriega to death with approximately ten bullets.

The jury convicted Lewis, Coronel and Herrera of Noriega’s first-degree murder (Penal Code § 187(a)).  The jury further found that the murder was committed for the benefit of a criminal street gang (Penal Code § 186.22(b)(1)(C)).  Lewis was sentenced to 25 years to life.

Lewis, Coronel and Herrera appealed.  While the appeal was pending, the California Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155, which held that natural and probable consequences liability cannot extend to first-degree premeditated murder because punishing someone for first-degree premeditated murder when that person did not actually perpetuate or intend the killing is inconsistent with concepts of culpability.” Chiu, at 165-166.  Despite this, Lewis’ conviction for first-degree murder was sustained because the record showed Lewis directly aided and abetted Herrera in the deliberate and premeditated killing or Noriega.

Effective January 1, 2019, Senate Bill 1437 and its procedures to seek resentencing under Penal Code § 1170.95 were passed.

On January 7, 2019, Lewis filed a petition complying with section 1170.95 and requested counsel be appointed.  On February 4, 2019, the superior court, without appointing counsel, summarily denied the petition by minute order, referring to the Second Appellate District’s finding that Lewis “would still be found guilty of direct aiding and abetting of first-degree murder.” 

Lewis appealed and the Second Appellate District affirmed the trial court.  The appellate district court rejected Lewis’ claims that the trial court erred by not appointing counsel.

Lewis then appealed to the California Supreme Court.  It narrowed down its analysis to subdivision (c) of Penal Code § 1170.95, which states: “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provision of this section.  If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.  The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served.  These deadlines shall be extended for good cause.  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.”

The California Supreme Court therefore decided that, in its reading of subsection (c), the petitioner is entitled to counsel from the start, to assist perhaps in making a prima facie showing.  The petitioner does not need to do that on his or her own.

The significance of this ruling now becomes whether it is retroactive and we regret to say it most likely will not be interpreted as having retroactive application under In re Estrada (1965) 63 Cal. 2d 740, 48 Cal. Rptr. 172, 408 P. 2d 948.

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