People v. Lopez CA4/1 ( 2021 )

Filed 9/10/21 P. v. Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078266
Plaintiff and Respondent,
v. (Super. Ct. No. FVI025720)
MARIBEL LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, John M. Tomberlin, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natatsha
Cortina, Lynne G. McGinnis, and Christine L. Bergman, Deputy Attorneys
General, for Plaintiff and Respondent.
In 2010, a jury convicted Maribel Lopez and her co-defendant of first
degree murder (Pen. Code,1 § 187, subd. (a)). The court sentenced Lopez to
an indeterminate term of 25 years to life in prison.
Lopez appealed and this court affirmed the judgment as to both
defendants in an unpublished opinion filed July 15, 2011. (People v. Peredia
et al. (July 15, 2011, D057745) [nonpub. opn.].)
In 2019, Lopez filed a petition for resentencing under section 1170.95.
The court appointed counsel, received briefing, and issued an order to show
cause (OSC). Thereafter, the court held a contested evidentiary hearing. In
that hearing, the parties agreed the court could consider the record of
conviction, which includes this court’s prior opinion. At the conclusion of the
hearing, the court denied the petition for resentencing. The court found the
record proved Lopez was a major participant in the underlying felony and
that she acted with reckless indifference to human life.
Lopez appeals challenging the sufficiency of the evidence to prove she
acted with reckless indifference to human life. Lopez does not challenge the
finding that she was a major participant in the underlying felony. We are
satisfied the court correctly found the evidence proved Lopez acted with
reckless indifference to human life, beyond a reasonable doubt. There is
sufficient evidence to support the trial court’s decision. We will affirm the
trial court’s order denying the petition.
STATEMENT OF FACTS
The respondent’s brief contains a factual summary of the offense taken
from our prior opinion.2 (People v. Peredia et al., supra, D057745.)
1 All further statutory references are to the Penal Code.
2 Part B in the facts portion of our prior opinion, which pertains only to
Lopez’s co-defendant, is not included in the Statement of Facts.
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“Prosecution Evidence Presented to Both Juries
“[E.] Bermudez knew Lopez, liked her, and occasionally gave her drugs.
Bermudez disappeared on the night of October 17, 2006. He was driving his
Ford Explorer, which had expensive rims and an expensive stereo.
Bermudez’s mother reported him missing to police the following morning.
“On October 19, 2006, a passerby spotted Bermudez’s car on fire and
called 911. Authorities responded to the call, extinguished the fire, and
impounded the car. The following day, authorities returned to the site and
followed tire tracks for about three-tenths of a mile to a second crime scene,
where they found another burn pile. They found clothing, paper, a music CD
and a fake soda can typically used to hide drugs. On October 22, police
interviewed Mr. Barboza, and he eventually gave police information that led
them to search a third crime scene in the area around Sanchez Ranch.
There, police found drag marks, potential pools of dried blood, and tire tracks
matching those found at the two burn sites.
“The trial testimony from Mr. Barboza and his wife showed that around
10:00 p.m. on the night of the murder, Peredia and Lopez came to Barboza’s
house and asked him to purchase beer for Peredia, but Barboza declined.
Peredia and Lopez left but returned a few hours later, arriving around
2:30 a.m. At that time, Peredia told Mr. Barboza that Peredia had gotten
into a fight and “offed” someone. Peredia had blood on his pants and was
carrying a gun. Peredia wanted Barboza to give him a ride after Peredia
dropped off the car he was driving. Barboza eventually agreed to give the
requested help, and did follow Peredia for a while, but Barboza ditched
Peredia before fulfilling his agreement to give him a ride. The next day,
Peredia again contacted Barboza. When they met, Peredia admitted he shot
someone in the head, burned the body, and buried it, but claimed he acted in
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self-defense. He asked Barboza to provide Peredia with an alibi. Barboza
eventually gave this information to police.
“On October 26, 2006, police interviewed Jacob and Juan Alvarez, and
the information from the Alvarezes led police to the site near Sanchez Ranch
where they found Bermudez was buried. Police excavated Bermudez’s body
the following day. It was naked, charred, and a rope was tied around the
ankles. Police found tire treads matching the tire treads found at the other
crime scenes.
“The trial testimony from the Alvarez brothers showed that Peredia
and Lopez arrived at the Alvarezes’ house late on the night of October 17,
2006; Peredia was driving Bermudez’s car. Peredia claimed he “blasted”
someone for rims and a stereo. He asked for a shovel, rope, and a gas can,
which the Alvarez brothers gave to him. The four then drove to a gas station
and filled the gas can. They then drove to Sanchez Ranch. On the way to
Sanchez Ranch, Peredia again explained he had killed someone and needed
help to dispose the body. Peredia said that a drug buy went bad, and he
panicked and shot Bermudez in the head and heart. When they arrived at
Sanchez Ranch, the Alvarez brothers saw a body stripped of its clothing with
bullet holes in the head and chest. They dragged the body into the car and
drove off the road into the desert. Peredia stopped, dug a hole, dragged the
body into the hole, poured gasoline on it, and set it afire before burying it.
Peredia then drove the brothers back to their home and showed them the gun
he had used.
“A pathologist conducted an autopsy. Bermudez had been shot twice,
once in the chest and once in the head. The chest shot was not fatal. The
fatal shot was to the head, and the bullet entered near the right eye and
exited near the left ear.
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“[¶] . . . [¶]
“Lopez’s statements to Police (Lopez’s Jury Only)
“Lopez was interviewed three times, and her statements were admitted
before her jury only. In the first interview, Lopez denied any involvement in
or knowledge of what happened to Bermudez, and denied seeing Bermudez
the night of his murder.
“In an interview three days later, Lopez admitted she knew the
circumstances surrounding Bermudez’s death. She knew Bermudez was
coming to her home, Peredia would also be there, and that Peredia had a gun;
and thought Peredia might want to steal something. When Bermudez
arrived, Peredia and Lopez asked him to drive them to a liquor store, but the
store was closed when they arrived. They then drove to the desert. After
arriving, they drank together, but Lopez need to urinate, so she went behind
the bushes with some toilet paper. As she was returning, she heard a
gunshot. When she saw Bermudez had been shot, she ran off, but Peredia
caught up to her driving Bermudez’s car and told her to get in. They drove
across town, enlisted the aid of two of Peredia’s friends, and returned to the
scene with gas. Peredia and his friends dug a hole, and then buried the body.
After dropping off Peredia’s friends, they returned to the desert in
Bermudez’s car and slept there. The next morning, they unloaded
Bermudez’s possessions and burned them. They then drove to an aqueduct
where Peredia disposed of the gun.
“In a third interview, which Lopez initiated a few weeks later, she told
police Peredia knew Bermudez was coming to Lopez’s house and Peredia got
there before Bermudez. About a half-hour before Bermudez arrived, Peredia
told her he was going to rob Bermudez and showed her a gun he was
carrying, but promised not to kill Bermudez. At some point, Peredia
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threatened to shoot or hit Lopez if she did anything stupid. Peredia asked
whether there was any way Bermudez would accompany Peredia without
Lopez, but she responded he would not go with Peredia because he did not
know him, and that she would have to accompany them to create the
opportunity for Peredia to rob Bermudez.”
DISCUSSION
As we have observed, there is only one issue before us in this appeal. Is
there sufficient evidence in the record to support the finding that Lopez acted
with reckless indifference to human life? We think there is sufficient
substantial evidence to support the finding and thus the denial of the
petition.
A. Legal Principles
Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) was
enacted to “amend[ ] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability
is not imposed on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (People v. Gentile (2020) 10
Cal.5th 830, 842.)
Section 1170.95, subdivision (c) provides: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions 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
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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.”
When we review a challenge to the sufficiency of the evidence to
support a factual finding we apply the substantial evidence standard of
review. We analyze the record in the light most favorable to the trial court’s
finding and determine if there is sufficient substantial evidence to find the
defendant guilty beyond a reasonable doubt. (People v. Clements (2021) 60
Cal.App.5th 597, 618, review granted Apr. 28, 2021, S267624; People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1087.)
In determining whether the record shows a defendant acted with
reckless indifference to human life, we look to our Supreme Court’s decisions
in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark). While those were death penalty cases, the term
reckless indifference to human life is used in Senate Bill 1437 in examining
whether murder liability can be imposed on a person who is not the killer.
The court in Banks stated that “[a] sentencing body must examine the
defendant’s personal role in the crimes leading up to the victim’s death and
weigh the defendant’s individual responsibility for the loss of life, not just his
or her vicarious responsibility for the underlying crime.” (Banks, supra, 61
Cal.4th at p. 801.)
Banks, provided a list of some of the factors a reviewing court should
consider in assessing the defendant’s role: “What role did the defendant have
in planning the criminal enterprise that led to one or more deaths? What
role did the defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by the nature
of the crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the killing, in a
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position to facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did the
defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at
p. 803.)
In Clark, the court expanded on the factors relevant to establishing
reckless indifference. Those factors include, but are not limited to, the
defendant’s knowledge of weapons used in the crime, how those weapons
were used; the number of weapons used; the defendant’s proximity to the
crime; his opportunity to stop the killing or aid the victim; the duration of the
crime; and the defendant’s efforts, if any, to minimize the possibility of
violence during the crime. (Clark, supra, 63 Cal.4th at pp. 618-623.)
B. Analysis
Lopez’s role as a major participant in the underlying felony is not
disputed. Indeed, the crime could not have been committed without her
participation. The victim knew and trusted Lopez and did not know her
cohort. It is conceded the victim would not have gone with the accomplice
without Lopez being present. Lopez knew the accomplice planned a robbery
at gun point. They discussed how to deal with the victim. According to
Lopez, the accomplice promised not to shoot but would take the victim out in
the desert to get him lost. The trial court could infer Lopez and her
accomplice had a practical problem. Robbing someone who knows your name
and can identify you requires that something be done to prevent the victim
from going to the police. She and the accomplice discussed whether to shoot
him or “lose him in the desert,” presumably to die.
The encounter with the victim appears to have lasted a while including
some drinking and a drive into the desert at night. Although Lopez claims
she was outside the vehicle when the victim was murdered, she was plainly
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aware from the outset that some fatal action would have to take place to
prevent the victim identifying them to police. She did nothing to minimize
the risk that the victim would be killed.
On this record, the trial court could reasonably find, beyond a
reasonable doubt, that Lopez acted with reckless indifference to life as that
term has been defined by the high court in Banks and Clark.
DISPOSITION
The order denying Lopez’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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