People v. Lopez CA2/1 ( 2021 )

Filed 4/26/21 P. v. Lopez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B308988
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA054272)
v.
MICHAEL SANTILLAN
LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David W. Stuart, Judge. Dismissed.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
PROCEDURAL BACKGROUND AND DISCUSSION
“Defendant [Michael Santillan Lopez] went to trial on
charges of willful, deliberate and premeditated attempted murder
of a peace officer (§§ 664 & 187, subd. (a)),1 assault on a peace
officer with a semi-automatic firearm (§ 245, subd. (d)(2)),
evading a peace officer (Veh. Code, § 2800.2, subd. (a)), possession
of a firearm by a felon (§ 12021, subd. (a)(1)), carrying a loaded
firearm (§ 12031, subd. (a)(1)), and possession of ammunition
(§ 12316, subd. (b)(1)).2 The following gang and weapon
enhancements were also alleged: as to counts one through three,
defendant personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)), and a principal personally used a firearm
(§ 12022.53, subds. (b) [&] (e)(1)); as to count three, defendant
personally used a firearm (§ 12022.53, subd. (b) [&] § 12022.5,
subds. (a) [&] (d)); as to count seven, defendant was an active
participant in a street gang (§ 12031, subd. (a)(2)(C)); and as to
counts one through eight, the offenses were committed for the
benefit of, at the direction of, or in association with a criminal
street gang with the specific intent to promote, further or assist
in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)
[counts four through eight] and (C) [counts one through three]).
It was also alleged that defendant suffered prior convictions of
serious or violent felonies or juvenile adjudications. (§ 1170.12,
1“Unless otherwise noted, all section references are to the
Penal Code.”
2 “Edward Alcala was charged in the information as a
co-defendant. He plead[ed] guilty before trial . . . .”
2
subds. (a)–(d); § 667, subds. (b)–(i); § 667, subd. (b).)”3 (People v.
Lopez (Aug. 17, 2009, B209515) [nonpub. opn.].)
On June 11, 2008, the jury found defendant guilty on all
charges and found all allegations true. On July 9, 2008, the trial
court sentenced defendant to a total of 114 years to life in state
prison. On August 17, 2009, we affirmed the judgment.
On October 16, 2020, Lopez filed a “Motion For Modification
Of Sentence Pursuant to Senate Bill 1393,” requesting that the
trial court strike his prior serious or violent felony enhancements
pursuant to Senate Bill No. 1393 (2017–2018 Reg. Sess.)
(Stats. 2018, ch. 1013, § 2), which became effective on
January 1, 2019. Senate Bill No. 1393 amended sections 667 and
1385 to give trial courts discretion to strike these enhancements
“in furtherance of justice.” (§ 1385, subd. (a).) In support of his
motion, Lopez referenced his participation in “Victims Impact
Groups” and participation in educational and restorative justice
programs that “have given me insight into the life-style I was
living at the time of my crime, and through these groups I have
been able to truly learn what it is to hold oneself accountable and
feel remorse.” Lopez attached to his motion certificates showing
his participation in Criminal and Gangs Anonymous; completion
of high school equivalency tests, a sewing machine operator
apprenticeship, associate certified electronics technician
customer service educational courses, and training in hand tools;
and participation in anger management, victim impact, and
stress management programs.
3 We have taken this description of the charges against
Lopez from our opinion in Lopez’s prior appeal.
3
On October 20, 2020, the trial court denied Lopez’s motion
because “Defendant’s conviction became final in 2009 after his
petition for review to the California Supreme Court was denied
(case no. S176636), long before the effective date of the SB 1393
in 2019.” The trial court reasoned that the amendments to
section 1385 enacted by Senate Bill No. 1393 do not apply
retroactively to final cases. Lopez filed a timely notice of appeal.
We appointed counsel, who filed a brief identifying no issue
and invited this court independently to review the entire record
for arguable issues. This court notified Lopez that he had
30 days to file a supplemental brief. Lopez did not file a
supplemental brief. We thus have no independent duty to review
the record for arguable issues. (People v. Cole (2020)
52 Cal.App.5th 1023, 1034, review granted Oct. 14, 2020,
S264278 [“[W]e reject the notion that the Constitution compels
the adoption or extension of [People v. Wende (1979) 25 Cal.3d
436] procedures (or any subset of them) for appeals other than a
criminal defendant’s first appeal of right because, beyond that
appeal, there is no right to the effective assistance of counsel.”].)
We thus dismiss this appeal as abandoned. (Cole, at pp. 1023–
1024, review granted.)
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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