Opinion
A166986
03-21-2024
THE PEOPLE, Plaintiff and Respondent, v. DANNY LEE LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 76263B)
We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.)
BROWN, P. J.
In 1983, a jury convicted defendant Danny Lee Lewis of first degree murder and first degree robbery of Saleh Ali Morshed (Pen. Code, §§ 187, subd. (a), 211); first degree murder and first degree robbery of Towfeg Altreb; and first degree burglary (§ 459), with true findings that Lewis personally used a weapon in Morshed's murder, personally used a weapon and inflicted great bodily injury during the robbery and burglary of Morshed, and personally used a weapon during the robbery of Altreb. Lewis received a prison sentence of 51 years to life. This court affirmed his convictions.
All further statutory references are to the Penal Code.
In 2022, Lewis petitioned for resentencing under former section 1170.95 (current § 1172.6, renumbered by Stats. 2022, ch. 58, § 10, eff. June 30, 2022). After appointing counsel and receiving briefing, the trial court found that Lewis stated a prima facie case for relief, it issued an order to show cause, and it held an evidentiary hearing.
For the evidentiary hearing, the parties were unable to locate Lewis's trial transcripts, but they submitted and relied on his preliminary hearing transcripts. The People also submitted Lewis's testimony from his 2016 parole suitability hearing wherein he admitted the following facts: he, his girlfriend, and one other man planned to rob and murder the victims because the victims had money; Lewis suggested using knives; Lewis attacked one of the victims with a knife and the other man attacked the other victim with a knife; and the plan was to kill both victims.
Lewis objected to the admission of this testimony on the grounds that it was unreliable and involuntary, and he submitted contradictory testimony from his 2021 parole suitability hearing to support his unreliability argument. At oral argument, Lewis's counsel stated that, given the state of the law, she was not arguing that the use immunity from People v. Coleman (1975) 13 Cal.3d 867 (Coleman) applied to Lewis's parole hearing testimony.
The trial court denied the petition. As to Morshed, the court found beyond a reasonable doubt that Lewis could be convicted of murder as the actual killer. As to Altreb, the court found that, beyond a reasonable doubt, with or without the 2016 parole hearing testimony, Lewis could be found liable for murder as an aider and abettor with intent to kill, and as a major participant in the underlying felony who acted with reckless indifference to human life.
Lewis appeals the court's ruling as to Altreb. He does not dispute that his 2016 parole hearing testimony provides substantial evidence to support the court's order, but he argues on appeal that the court erred in admitting this testimony based on the use immunity rule articulated in Coleman, supra, 13 Cal.3d 867, and its progeny. Lewis acknowledges that courts - including this Division in People v. Anderson (2022) 78 Cal.App.5th 81, 89-93 - have repeatedly rejected his argument, but he asks us to forge a different path and reverse. We decline to do so both because Lewis appears to have forfeited his claim, and because we disagree with him on the merits.
In Coleman, the prosecution began probation revocation proceedings on grounds also underlying "independent criminal charges on which [the] defendant had been held to answer but had not yet been tried." (Coleman, supra, 13 Cal.3d at p. 871.) When the defendant declined to testify at the hearing, the trial court revoked his probation. (Ibid.) On appeal, he argued that holding the hearing prior to trial denied him procedural due process because he was forced to forgo testifying to avoid incriminating himself at trial. (Ibid.) In response, our Supreme Court fashioned a "judicial rule of evidence" that, upon objection, testimony "at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of . . . probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges." (Id. at p. 889.)
For the reasons set forth in People v. Myles (2021) 69 Cal.App.5th 688, 704-706, and other opinions reaching the same conclusion, we disagree that the rule in Coleman should be applied in this context. (People v. Anderson, supra, 78 Cal.App.5th at pp. 89-93; People v. Duran (2022) 84 Cal.App.5th 920, 928-932; People v. Mitchell (2022) 81 Cal.App.5th 575, 588-590; contra, Mitchell, at pp. 602-605 (dis. opn. of Stratton, P. J.).)
DISPOSITION
The order denying Lewis's petition for resentencing is affirmed.
WE CONCUR: STREETER, J., GOLDMAN, J.