People v. Lopez CA2/6 ( 2022 )

Filed 10/3/22 P. v. Lopez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300909
(Super. Ct. No. 1500706)
Plaintiff and Respondent, (Santa Barbara County)
v.
PEDRO SANTIAGO LOPEZ,
Defendant and Appellant.
In the first trial the jury was unable to reach a verdict on
the charge of attempted murder. (Pen. Code,1 §§ 187, subd. (a),
664; count 1.) But the jury found Pedro Santiago Lopez guilty
of discharging a firearm at an occupied motor vehicle (§ 246;
count 2) and that he personally used a firearm (§ 12022.5,
subd. (a)).
The prosecution retried count 1. The jury found Lopez
guilty of attempted murder and that he personally and
All further references are to the Penal Code unless
1
otherwise indicated.
intentionally discharged a firearm causing great bodily injury.
(§§ 12022.7, subd. (a), 12022.53, subd. (c).)
The trial court sentenced Lopez to seven years to life on
count 1 plus 20 years for the firearm enhancement. On count
2, the court sentenced Lopez to the upper term of seven years
plus four years for the firearm enhancement pursuant to
section 654.
As to count 2, we strike the firearm enhancement and
reverse and remand for sentencing pursuant to changes in the
sentencing law. In all other respects, we affirm.
FACTS
On July 21, 2016, John Doe was driving a sport utility
vehicle (SUV) with his wife as a passenger. They stopped at a
gas station in Santa Maria. As Doe was pulling up to the
pump, Lopez was standing in front of him, possibly looking at
his cell phone. Doe rolled down his window and asked if he
could pass. Lopez did not reply but stared at him in an angry
manner. He waived his arm and asked if Doe was in a hurry.
Lopez said that as a pedestrian he had the right of way and
Doe would have to wait until he moved.
Doe apologized several times. Lopez called Doe a big
“pussy” and challenged Doe to a fight. He began to make
offensive comments about Doe’s wife. Doe’s wife threatened to
call the police if Lopez did not leave them alone.
Lopez continued to make offensive comments about Doe’s
wife. Doe got out of his SUV. Doe grabbed Lopez by the shirt
and pushed Doe against a column at the gasoline pump. Lopez
went to his truck and Doe got into his SUV.
As Doe was turning on the ignition, he saw Lopez
pointing a gun at him. A gas station employee also saw Lopez
2
in front of the SUV with a gun in his hand. Lopez shot Doe in
the head. Lopez continued to try to shoot, but the gun only
shot once. He got into his truck and drove away.
Bystanders called 911. When the police arrived, Doe was
still in his SUV. A flap of skin had come off his skull and there
was a considerable amount of blood. Jacketing from a bullet
was stuck in Doe’s forehead. There was a bullet hole in the
windshield. Doe was taken by helicopter to the hospital where
he spent three days.
The police were able to get a partial license number off
Lopez’s truck from the gas station’s surveillance tapes. They
were able to identify Lopez’s truck and obtained an arrest
warrant for Lopez as well as a search warrant for his home and
truck.
In Lopez’s home the police found a derringer with two
.45-caliber bullets. The bullets had light prime marks on them,
consistent with someone pulling the trigger and the primer not
going off. A criminalist found the gun did not reliably fire each
time the trigger was pulled. The bullets were consistent with
fragments found in Doe’s head.
DEFENSE
Lopez testified on his own behalf. He said he was
walking at a normal pace at the gas station when Doe started
yelling at him. Lopez did not get angry or feel disrespected.
Doe walked up to him and wanted to start a fight. Lopez tried
to calm Doe down. He did not call Doe any names or insult
Doe’s wife. Doe was taller and heavier that Lopez. Doe
threatened to kill Lopez, his wife, and son right there.
Lopez thought about another son who had been
murdered in 2010. He did not feel stressed and was not in
3
fear. Doe was still in his SUV and not leaving. Lopez could
not allow Doe to follow and kill him. He decided to scare Doe
away.
Lopez went to his truck and got his gun out of a locked
glove compartment. He only had one bullet, which he loaded in
the gun. He shot into the SUV where Doe and his wife were
seated. Lopez did not think he would hit Doe nor did he intend
to kill him. Lopez said he was defending himself, his wife, and
his son.
Neurologist Robert Sapolsky testified that under stress
the amygdala, the part of the brain that controls fear and
anxiety, gets stronger, and the frontal cortex, the reasoning
part of the brain, gets weaker. Anger can also have the same
result.
Two witnesses testified they have known Lopez for many
years and know him as a non-violent family man.
DISCUSSION
I.
Competency to Stand Trial
Lopez contends the trial court erred in failing to suspend
proceedings and order a second competency exam.
(a) Procedure
Defense counsel declared a doubt about Lopez’s
competence to stand trial. The trial court suspended
proceedings and appointed two doctors to evaluate Lopez.
Defense counsel and the prosecutor stipulated to the report of a
single doctor who found Lopez competent to stand trial.
Later Lopez entered a plea of not guilty by reason of
insanity. The court again appointed two doctors to evaluate
4
Lopez. Both doctors found Lopez did not meet the standard of
section 1027 for not guilty by reason of insanity.
Fifteen months after Lopez’s initial competency
evaluation, defense counsel again declared a doubt about
Lopez’s competency to stand trial. Defense counsel explained
that he initially declared a doubt because Lopez was not
talking to him, and Lopez’s sons described him as not normal
when speaking to him on the telephone. Now defense counsel
said Lopez is speaking to him, but he did not believe Lopez was
being rational.
The trial court held an in camera hearing with only
Lopez and his counsel present. Counsel started the hearing by
informing the court that Lopez believes the government is out
to get him, specifically that the county fiscal department is
getting into his file to look at a secret pleading. The court
asked Lopez if he talked to his attorney about hiring an expert
to testify at trial about his mental state. Lopez complained
that he and his counsel did not communicate well. The court
explained to Lopez that if he wanted an expert to testify, he
would have to agree to a continuance so that one could be
appointed. Lopez expressed reluctance to accept further delay,
but ultimately agreed.
The trial court found there was no substantial evidence
of a change of circumstances that would merit further inquiry.
The court did not appoint experts to evaluate Lopez’s
competence to stand trial for a second time.
Three months later, Lopez’s counsel again expressed
doubt about Lopez’s competence to stand trial. Counsel later
told the trial court that he was not pursuing the matter.
5
(b) Discussion
Section 1367, subdivision (a) provides in part: “A person
shall not be tried or adjudged to punishment . . . while that
person is mentally incompetent. A defendant is mentally
incompetent for purposes of this chapter if, as a result of a
mental health disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner.”
The defendant has a right to a hearing on his present
sanity if he produces substantial evidence that he is incapable
of understanding the nature of the proceedings against him or
of assisting in his defense. (People v. Rodas (2018) 6 Cal.5th
219, 231.) If after a competency hearing the defendant has
been found competent to stand trial, the trial court may rely on
that finding unless the court is presented with a substantial
change of circumstances or with new evidence casting a doubt
on that finding. (Ibid.)
Here Lopez was found competent to stand trial after a
competency hearing. Thereafter Lopez’s counsel informed the
court that Lopez believes the county government is out to get
him. Given that the county was trying to put Lopez in prison
for the rest of his life, that hardly seems delusional. Lopez’s
counsel said Lopez believes the county fiscal department is
trying to get into his file and look at a secret pleading.
Assuming Lopez believes that, it has nothing to do with
Lopez’s ability to competently assist in his defense.
The trial court held an in camera hearing with Lopez and
his counsel. Nothing Lopez said was delusional. To the
contrary, he was able to articulate his position clearly and
6
rationally. He was concerned that the appointment of an
expert would delay his trial, as indeed it did. Lopez’s counsel
did not take the opportunity to question him about the alleged
delusions. The court could reasonably conclude there was no
substantial evidence of a change in circumstances that would
merit further inquiry.
Lopez’s counsel did file a subsequent affidavit under
section 1368. But counsel later informed the court that he was
not pursuing the matter.
Lopez testified in his own defense in two trials. He
points to nothing in his testimony that would indicate he was
not competent to stand trial.
Lopez’s reliance on People v. Rodas, supra, 6 Cal.5th 219,
is misplaced. The defendant was found to be incompetent to
stand trial. Medication, however, restored him to competence.
The defendant’s counsel requested a competency evaluation on
the ground that the defendant had stopped taking his
medication and had begun communicating incoherently with
counsel. The court conducted a brief colloquy with defendant
during which defendant was able to identify the charges
against him and expressed a willingness to go to trial and
cooperate with counsel. Against counsel’s advice, the
defendant testified on his own behalf. The testimony was
incoherent, and the court struck it as irrelevant. Our Supreme
Court concluded the trial court erred in failing to suspend the
proceedings and order a formal competency inquiry. The court
reasoned that where the defendant stopped taking medication
that restored him to competency and again displayed
symptoms of incompetency, there was substantial evidence of a
7
change of circumstances that required a formal inquiry. (Id. at
p. 235.)
The facts here are not remotely similar to those in
Rodas. Lopez was never found to be incompetent. There was
no change of circumstances similar to stopping medication that
had restored competence, and Lopez’s testimony in two trials
showed he was competent. If anything, Rodas illustrates why
the trial court did not err here.
II.
Negligent Discharge of a Firearm
Lopez contends the trial court erred in failing to instruct
sua sponte on the lesser included offense of negligent discharge
of a firearm.
Lopez was found guilty of violating section 246, willful
discharge of a firearm at an occupied motor vehicle. Section
246.3, willfully discharging a firearm in a grossly negligent
manner, is a better included offense of section 246. (People v.
Bell (2019) 7 Cal.5th 70, 108.) An instruction on a lesser
included offense is required where there is substantial
evidence that the defendant is guilty of only the lesser offense
and not the greater offense. (Ibid.)
Here the only evidence is that Lopez intentionally fired
into an occupied motor vehicle. That is a violation of section
246, the greater offense. There is no evidence Lopez fired
randomly or into the air. (See People v. Bell, supra, 7 Cal.5th
at pp. 109-110 [To find defendant guilty of violating section
246.3, and not section 246, the jury would have to find the
defendant’s shots were not aimed at or in close proximity to the
victim’s truck. There was no evidence defendant fired
8
aimlessly or into the air].) There was no substantial evidence
to support an instruction on section 246.3.
III.
Prosecutorial Misconduct
Lopez contends the prosecutor committed misconduct in
the second trial on attempted murder.
(a) Beltran Violation
In addition to an instruction on attempted murder
(CALCRIM No. 600), the trial court instructed on the lesser
included offense of attempted voluntary manslaughter based
on heat of passion (CALCRIM No. 603) and imperfect self-
defense (CALCRIM No. 604).
In People v. Beltran (2013) 56 Cal.4th 935, our Supreme
Court rejected the theory that the heat of passion necessary for
voluntary manslaughter must be of a kind that would cause a
person of ordinary disposition to kill. (Id. at p. 949.) Instead,
the correct standard is that the accused must be “disturbed by
passion to such an extent as would cause the ordinarily
reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion
rather than from judgment.” (Id. at p. 942, quoting People v.
Barton (1995) 12 Cal.4th 186, 201.)
The prosecutor began his argument to the jury citing the
correct standard for manslaughter based on heat of passion.
But then he said: “An average person of average disposition
does not grab a gun and shoot somebody who’s sitting at the
steering wheel. A person of average disposition does not
approach the guy that’s been shot and pull that trigger for
another time. A person of average disposition does not go
around and continue that course of conduct and try to fire
9
another shot at a different angle. A person of average
disposition acts with deliberation. They run away. They act
proportionately. They don’t do this. Society doesn’t allow us to
act with our own standard where somebody can grab a gun in a
crowded gas station and shoot somebody that has no weapons
that’s sitting in their car and then proceed to try to shoot him
two more times.”
Defense counsel corrected the prosecutor, stating:
“Again, heat of passion. So heat of passion reduces an
attempted murder to attempted voluntary manslaughter. And
here is where the prosecutor was talking about a person of
average disposition, right? The provocation would have caused
an ordinary person of average disposition to act rashly and
without due deliberation. He was saying the person of average
disposition would get out their gun and shoot, or the person of
average disposition would maybe even display a gun. That’s
not what the instruction says. The instruction says to act
rashly and without due deliberation from passion rather than
judgment.”
In rebuttal the prosecution said: “A person of average
disposition – remember, it’s a person of average disposition
standard – would call the police, would leave the scene, would
report John Doe’s actions. A person of average disposition
would not see somebody walk away, get in their car, and pull a
gun and shoot them. A person of average disposition would
deliberate and not act in that sort of manner. They would not
try to shoot the person again two more times.”
The jury was instructed with CALCRIM No. 603, stating
in part: “It is not enough that the defendant simply was
provoked. The defendant is not allowed to set up [his] own
10
standard of conduct. You must decide whether the defendant
was provoked and whether the provocation was sufficient. In
deciding whether the provocation was sufficient, consider
whether a person of average disposition, in the same situation
and knowing the same facts, would have reacted from passion
rather than judgment.”
A prosecutor who misstates the law commits misconduct.
(People v. Hill (1998) 17 Cal.4th 800, 832.) Here, the
prosecutor initially correctly stated the law. But then he
improperly argued that the heat of passion necessary for
voluntary manslaughter must be of a kind that would cause a
person of ordinary disposition to attempt to kill.
But the trial court correctly instructed the jury on the
standard for manslaughter based on heat of passion. The court
also instructed the jury that if anything the attorneys said
conflicted with the instructions, it had to follow the
instructions. (CALCRIM No. 200.) When argument runs
counter to instructions given to the jury, we will ordinarily
conclude the jury followed the instructions and disregarded the
argument. (People v. Osband (1996) 13 Cal.4th 622, 717.) The
prosecution’s misstatement of the law in argument to the jury
was harmless.
(b) Order of Deliberations
Lopez contends the prosecutor committed misconduct by
telling the jury it had to decide whether he is guilty of
attempted murder before going on to consider a lesser included
offense.
Here the trial court instructed the jury with CALCRIM
No. 3517. That instruction states in part: “It is up to you to
decide the order in which you consider each crime and the
11
relevant evidence, but I can accept a verdict of guilty of a lesser
crime only if you have found the defendant not guilty of the
corresponding greater crime.”
The instruction – that it is up to the jury to decide the
order in which it considers each crime and evidence – is given
because the order does not matter. Thus, it does not matter if
the jury considered the attempted murder first. Moreover,
when there is a conflict between argument and instructions,
the instructions prevail. (People v. Osband, supra, 13 Cal.4th
at p. 717; CALCRIM No. 200.) Any misconduct was harmless.
IV.
Unanimity Instruction
Lopez contends the trial court erred in failing sua sponte
to give a unanimity instruction in both trials.
In the first trial, Lopez was found guilty of discharging a
firearm at an occupied motor vehicle. (§ 246.) Although the
undisputed evidence is that the gun fired only once, Lopez
argues that a “discharge” does not require the actual firing of a
bullet. It can be found where the defendant simply aims the
gun and pulls the trigger. (People v. Grandy (2006) 144
Cal.App.4th 33, 44-45 [discharge of a firearm within the
meaning of section 12022.53, subdivision (c)].)
A unanimity instruction is required where multiple acts
are placed before a jury each of which is a separate chargeable
offense. (People v. Robbins (1989) 209 Cal.App.3d 261, 265-
266.) But there is an exception to the rule where a series of
acts are so closely connected in time that they form part of one
transaction. (Id. at p. 266.)
Lopez argues that there was evidence he unsuccessfully
attempted to shoot multiple times after the initial shot that
12
struck Doe. He posits some jurors could have separated the
initial shot from the subsequent unsuccessful attempts, finding
the first shot was fired in self-defense, but that the other
attempts at shooting were not. Other jurors might have based
their verdict on the first shot.
But the entire shooting incident took only a few seconds.
It is beyond far-fetched to believe that a juror would find Lopez
had different states of mind between pulls of the trigger. The
incident falls squarely within the single transaction exception.
Contrary to Lopez’s assertion, the prosecution did not
argue that there were separate courses of conduct. In context,
the prosecution was simply pointing to the acts that continued
the single course of conduct. But, even if the prosecutor’s
argument could be construed as separating Lopez’s acts into
separate courses of conduct, the error would be harmless by
any standard. No reasonable juror would believe the entire
shooting incident, lasting only a few seconds, constituted
anything but a single course of conduct.
V.
Section 12022.5 Enhancement Stricken as to Count 2
Lopez argues the section 12022.5, subdivision (a)
enhancement must be stricken as to count 2. The Attorney
General concedes the issue.
The jury found Lopez guilty of count 2, discharging a
firearm at an occupied motor vehicle. Section 12022.5,
subdivision (a) provides that the enhancement does not apply if
use of a firearm is an element of the offense. The enhancement
must be stricken.
13
VI.
Resentence Under Change of Law
Lopez contends he is entitled to be resentenced under
changes in law that occurred after he was sentenced. The
Attorney General concedes the issue.
The changes in law only affect Lopez’s sentence on count
2, discharging a firearm at an occupied motor vehicle. (§ 246.)
The trial court sentenced Lopez to the upper term of seven
years plus a firearm enhancement pursuant to section 12022.5,
subdivision (a), stayed pursuant to section 654. As explained
above, we must strike the firearm enhancement, leaving the
stayed upper seven-year term for violating section 246.
At the time Lopez was sentenced, section 654 required
the trial court to impose the longest potential term of
imprisonment. An amendment to section 654 deleted that
requirement. (Stats. 2021, ch. 441, § 1.) Section 1170 was
amended by adding subdivision (b)(6)(A), making the lower
term the presumptive sentence where the defendant has
experienced psychological, physical, or childhood trauma.
(Stats. 2021, ch. 695, § 5.3.) Lopez claims he suffered such
trauma when he came to the United States as an
unaccompanied minor and when one of his sons was murdered.
Because Lopez’s case is not yet final, he is entitled to the
advantage given by the change in law. (In re Estrada (1965) 63
Cal.2d. 740.)
VII.
Fines and Fees
Lopez contends the trial court violated due process by
imposing fines and fees without a hearing on his ability to pay.
14
At sentencing, Lopez objected to the imposition of fines
and fees unless the prosecution affirmatively proved that he
had the ability to pay. The trial court overruled the objection
and imposed a $10,000 restitution fine (§ 12022.4, subd. (b)),
an $80 court security fee (§ 1465.8), and a $60 criminal
conviction fee (Gov. Code, § 70373).
Lopez relies on People v. Dueñas (2019) 30 Cal.App.5th
1157. Dueñas pled no contest to driving with a suspended
license. The trial court placed her on probation and imposed
various fines and fees. The Court of Appeal, relying in part on
the Magna Carta, held that due process required a hearing on
the defendant’s ability to pay.
Dueñas’ reception has been mixed. Some courts have
concluded that Dueñas was correctly decided. (See, e.g., People
v. Santos (2019) 38 Cal.App.5th 923, 927, fn. 2, but see dis.
opn. of Elia, J. at pp. 935-940.) Other courts have held that
Dueñas improperly relied on due process, and the correct
analysis is under the Eighth Amendment’s excessive fines
clause. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 96-
97.) The question is currently before our Supreme Court.
(Ibid., review granted Nov. 13, 2019, S257844.) We conclude
the Eighth Amendment analysis, and not due process, is
correct.
Lopez is in essence contending that the fines are
excessive because he lacks the ability to pay. The appropriate
challenge is under the Eighth Amendment’s ban on excessive
fines. Where an explicit textual source of constitutional
protection against an alleged harm exists, that Amendment
must be the guide for analyzing those claims. (Graham v.
Connor (1989) 490 U.S. 386, 395.)
15
The court considers four factors in determining whether
a fine is disproportionate: (1) the defendant’s culpability, (2)
the relationship between the harm and the penalty, (3)
penalties imposed by similar statutes, and (4) the defendant’s
ability to pay. (United States v. Bajakajian (1998) 524 U.S.
321, 337-338; People ex rel. Lockyer v. R.J. Reynolds Tobacco
Co. (2005) 37 Cal.4th 707, 728.) Even under a due process
analysis, there is no reason why the court should be confined to
considering only the defendant’s ability to pay. The court
should consider all factors.
First, as to culpability, Lopez shot Doe in the head. That
the shot did not kill Doe is simply fortuitous.
Second, the relationship between the harm and the
penalty is appropriate. Not only did Doe spend three days in
the hospital, but Doe is left with psychological trauma of
having been shot by a complete stranger. Doe’s medical costs
alone certainly far exceed the amount of fines and fees.
Third, we are unaware of any similar statutes imposing
such penalties.
Fourth, although Lopez’s ability to pay will be greatly
restricted, he will still have the ability to earn some money in
prison. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139
[ability to pay includes defendant’s ability to obtain prison
wages].) Even considering Lopez’s restricted ability to earn
money in prison, the first two factors alone are more than
sufficient to support the imposition of the fees and fines
imposed here.
DISPOSITION
The enhancement pursuant to section 12022.5,
subdivision (a) is stricken as to count 2. The matter is reversed
16
and remanded for resentencing on count 2 pursuant to changes
in sections 654 and 1170. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.*
_______________________
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
17
YEGAN, J., Concurring and Dissenting:
I concur with the majority opinion except insofar as it
orders a reversal and a remand for resentencing as to count
two. The defense theory is based upon alleged physical,
psychological, or childhood trauma as a mitigating factor.
While appellant has some mental deficiency, reversal and
remand here is meaningless. The sentence on count one, which
we affirm, is seven years to life plus 20 years for use of a
firearm. Whether or not appellant receives a mitigated
sentence as to count two will make no difference as to when
parole is granted, if at all. In this situation, I would exercise
Penal Code section 1260 discretion, reduce the seven-year
sentence to the lower three-year term, and order it to be served
concurrently with count one.
NOT TO BE PUBLISHED.
YEGAN, J.
John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Caneel C. Fraser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.