People v. Lopez CA5 ( 2021 )

Filed 12/3/21 P. v. Lopez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079905
Plaintiff and Respondent,
(Super. Ct. No. 1076152)
v.
FELIX LOPEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Snauffer, J. and De Santos, J.
INTRODUCTION
In 2008, a jury found petitioner Felix Lopez guilty of the murder of Michael
Valles.1 (Pen. Code, 2 § 187; count 1.) (People v. Lopez (2012) 208 Cal.App.4th 1049,
1060-1061 (Lopez).) In 2019, petitioner filed a petition for resentencing pursuant to
section 1170.95. The trial court denied the petition on the ground petitioner was
convicted under the provocative act doctrine and was not convicted of felony murder or
murder under a natural and probable consequences theory, a statutorily disqualifying
factor pursuant to section 1170.95, subdivision (a).
On appeal, petitioner contends his murder conviction under the provocative act
doctrine qualifies for resentencing. We reject petitioner’s contention and affirm.
FACTUAL AND PROCEDURAL HISTORY
Briefly stated, the facts underlying petitioner’s offense are as follows. 3 In January
2004, Paul Bargas accompanied a friend to the apartment of Daniel Lopez. 4 Daniel said,
“ ‘[T]hat’s Paul Bargas. He’s no good. Green light on Paul Bargas.’ ” (Lopez, supra,
208 Cal.App.4th at p. 1053.) Testimony established that the phrases “ ‘no good’ ” and
“ ‘green light’ ” indicated a gang member could attack or possibly murder the person.
(Id. at p. 1056.) Bargas left the apartment and was followed by Daniel and two other
men. An altercation ensued in which Bargas stabbed Daniel in the arm with a
screwdriver. (Ibid.)
1 Petitioner was convicted of additional offenses as described below.
2 Undesignated statutory references are to the Penal Code.
3 We grant in part the People’s request for judicial notice and take judicial notice of
our opinion in petitioner’s direct appeal. Our factual summary is taken from that opinion.
However, we deny as irrelevant the People’s request for judicial notice of petitioner’s
opening brief in that same appeal. (People v. Young (2005) 34 Cal.4th 1149, 1171, fn. 3
[judicial notice cannot be taken of any matter that is irrelevant].)
4 There is no apparent relation between Daniel Lopez and petitioner. To avoid
confusion, we will refer to Daniel Lopez by his first name.
2.
The next day, Daniel and petitioner went to a tattoo shop owned by Bargas’s
friend. Petitioner told the shop owner that Bargas was no good and to call petitioner if
Bargas came to the shop. (Lopez, supra, 208 Cal.App.4th at p. 1054.)
The following day, Bargas came to the tattoo shop. Petitioner arrived a few
minutes later with Michael Valles. Petitioner identified Bargas and said he was no good.
Petitioner pulled a gun and aimed it at Bargas. Bargas, who also was armed, shot at both
men, striking Valles five times. Petitioner ran away while shooting back at Bargas.
Petitioner was shot at least twice and survived. Bargas was shot in the foot and also
survived. It was undisputed at trial that Valles died from gunshot wounds inflicted by
Bargas. (Lopez, supra, 208 Cal.App.4th at pp. 1054, 1055-1060.)
Petitioner was charged with the murder of Valles (§ 187; count 1), discharge of a
firearm at an occupied building (§ 246; count 2), being a felon in possession of a firearm
(former § 12021.1; count 3), active participation in a criminal street gang (§ 186.22,
subd. (a); count 4), and attempting to dissuade a witness from testifying (§ 136.1,
subd. (a)(2); count 5). The information also alleged that petitioner committed the offense
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1); counts 1, 2, 3, & 5),
suffered a prior strike conviction (§ 667, subds. (b)-(i); all counts), suffered a prior
serious felony conviction (§ 667, subd. (a); all counts), served two prior prison terms
(§ 667.5, former subd. (b); all counts), and committed the crime while on bail for another
offense (§ 12022.1; count 5). (Lopez, supra, 208 Cal.App.4th at pp. 1060-1061.)
A jury found petitioner guilty of all charges and found all enhancements true.
Petitioner admitted the prior conviction allegations. He was sentenced to a determinate
term of eight years four months and a consecutive indeterminate term of 50 years to life.
(Lopez, supra, 208 Cal.App.4th at p. 1061.)
On February 26, 2019, petitioner, in propria persona, filed a petition for
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a
complaint, information, or indictment was filed against him that allowed him to be
3.
prosecuted under a theory of felony murder or murder under the natural and probable
consequences doctrine; he was convicted of first or second degree murder at trial; and he
could not now be convicted of first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019.
On February 27, 2019, the court appointed counsel to represent petitioner.
On May 10, 2019, the People filed a combined opposition on the merits and
motion to dismiss the petition on the ground section 1170.95 is unconstitutional. On the
merits, the People argued petitioner was not convicted of felony murder or murder under
a natural and probable consequences theory, but rather under the implied malice theory of
provocative act murder. Accordingly, the People argued, petitioner was ineligible for
resentencing. On May 24, 2019, petitioner filed a reply, arguing the provocative act
doctrine is a form of the natural and probable consequences theory, which had been
eliminated. On August 19, 2019, the People filed a supplemental brief in support of
denying the petition.5
On August 26, 2019, the court held a hearing on the petition. Therein, the court
stated it had reviewed its own notes of the trial, as well as portions of the transcripts and
jury instructions that had been submitted by the parties, all of which indicated petitioner
was a major participant in the offense. Additionally, the record reflected that petitioner
acted with at least implied malice, and the conviction therefore did not implicate the
felony-murder rule or the natural and probable consequences doctrine. Accordingly, the
court determined the prosecution had proved beyond a reasonable doubt that petitioner
was ineligible for resentencing, and the petition was denied.
5 The People’s brief appears to have been submitted in preparation for an
evidentiary hearing. (See § 1170.95, subd. (d).) However, the record does not reflect
that the court had determined whether petitioner stated a prima facie claim for
resentencing relief, or that the court had issued an order to show cause that would trigger
an evidentiary hearing. (§ 1170.95, subd. (c).)
4.
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Sen. Bill No. 1437) “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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by
adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th
830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the
bill added section 188, subdivision (a)(3), which requires a principal to act with malice
aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord,
Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section
189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section
190.2.”6 (§ 189, subd. (e); accord, Gentile, at p. 842.)
6 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
5.
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.” 7 (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender
must file a petition in the sentencing court averring that: ‘(1) A complaint, information,
or indictment was filed against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could
not be convicted of first or second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.’ (§ 1170.95, subd[]. (a)(1)-(3); see also § 1170.95,
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests
the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959-960 (Lewis).)
Where the petition complies with the requirements of section 1170.95, subdivision
(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and
the petitioner may file a reply. The trial court must then review the petition to determine
7 The Legislature recently passed, and the Governor signed, a bill amending section
1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet
effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our
analysis of the issues raised in this petition. We quote from the version of section
1170.95 presently in effect.
6.
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this
determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. Petitioner is Ineligible for Resentencing
It is undisputed that petitioner was convicted of murder under the provocative act
doctrine. (People v. Lopez (Aug. 22, 2012, F062740) [nonpub. opn.].) Petitioner
contends he is eligible for resentencing because his conviction under the provocative act
doctrine is no longer valid due to changes to sections 188 and 189 enacted by Senate Bill
No. 1437. We conclude the provocative act doctrine is unaffected by the changes to
7.
sections 188 and 189, and petitioner therefore is ineligible for resentencing under section
1170.95.
Murder under the provocative act doctrine is not a type of murder expressly
identified as eligible for resentencing under section 1170.95. (See § 1170.95, subd. (a).)
Rather, to be eligible for relief pursuant to section 1170.95, a person must have been
convicted of felony murder or murder under a natural and probable consequences theory.
(§ 1170.95, subd. (a); accord, Gentile, supra, 10 Cal.5th at p. 853.) Nonetheless,
petitioner contends that a conviction for murder under the provocative act doctrine
qualifies for resentencing because the provocative act doctrine “is a sub-species of the
natural and probable consequences doctrine of murder liability.”
“For good reason, the argument provocative act murder is properly understood as
a subset of the natural and probable consequences doctrine for purposes of Senate Bill
[No.] 1437 and section 1170.95 has been rejected by every [C]ourt of [A]ppeal that has
considered it . . . .” (People v. Mancilla (2021) 67 Cal.App.5th 854, 867 (Mancilla); see
People v. Swanson (2020) 57 Cal.App.5th 604, 613-614, abrogated on another ground by
Lewis, supra, 11 Cal.5th at p. 967; People v. Johnson (2020) 57 Cal.App.5th 257, 267-
270; People v. Lee (2020) 49 Cal.App.5th 254, 263-267, abrogated on another ground by
Lewis, supra, 11 Cal.5th at p. 967.)8 We agree with those decisions.
Prior to the passage of Senate Bill No. 1437, an aider and abettor to a crime other
than murder could have malice imputed to him or her based on his or her participation in
a crime of which murder was a natural and probable consequence. (People v. Chiu
8 To the extent petitioner argues he is entitled to resentencing because his jury was
not instructed to find he intended to kill Valles or was a major participant in the offense
who acted with reckless indifference to human life, his argument is misplaced. These are
elements of felony murder, not provocative act murder. (See § 189, subd. (e).) Petitioner
does not argue his conviction for provocative act murder also constituted a conviction for
felony murder. Nonetheless, courts have rejected this argument as well. (Swanson,
supra, 57 Cal.App.5th at pp. 616-617; Johnson, supra, 57 Cal.App.5th at p. 266; Lee,
supra, 49 Cal.App.5th at pp. 263-264.)
8.
(2014) 59 Cal.4th 155, 164, abrogated on another ground by Sen. Bill No. 1437.) Thus,
“[a]ider and abettor culpability under the natural and probable consequences doctrine
[was] vicarious in nature.” (Chiu, at p. 164.) Senate Bill No. 1437 eliminated this form
of imputed malice murder by amending section 188 to provide: “Malice shall not be
imputed to a person based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3).)
However, provocative act murder is not a form of imputed malice murder, but of
implied malice murder. (People v. Cervantes (2001) 26 Cal.4th 860, 867; People v. Mai
(1994) 22 Cal.App.4th 117, 124 [“an element of the provocative act doctrine is implied
malice”], disapproved on other grounds in People v. Nguyen (2000) 24 Cal.4th 756, 758.)
“The classic provocative act scenario occurs when a perpetrator of the underlying crime
instigates a gun battle, usually by firing first, and a police officer, or victim of the
underlying crime, responds with privileged lethal force by returning fire and kills the
perpetrator’s accomplice . . . .” (People v. Mejia (2012) 211 Cal.App.4th 586, 602-603.)
“ ‘In such a case, the killing is attributable, not merely to the commission of a felony, but
to the intentional act of the defendant or his accomplice committed with conscious
disregard for life.’ ” (People v. Gonzalez (2012) 54 Cal.4th 643, 655 (Gonzalez).)
“Thus, section 188, subdivision (a)(3), which provides malice shall not be imputed
to a person based solely on his or her participation in a crime, does not affect the theory
of provocative act murder. Unlike natural and probable consequences liability for
murder, which contained no requirement of proof of malice [citation], malice
aforethought—conscious disregard for life—is a necessary element of a conviction for
provocative act murder, as [petitioner’s] jury was instructed.” (Mancilla, supra, 67
Cal.App.5th at p. 868.)
Petitioner also suggests a jury instruction on the provocative act doctrine allowed
him to be convicted under a natural and probable consequences theory. The challenged
instruction provides, in relevant part:
9.
“To prove that the defendant is guilty of murder under the provocative act
doctrine, the People must prove that:
“1. In attempting to commit the Murder of Paul Bargas, the
defendant intentionally did a provocative act;
“2. The defendant knew that the natural and probable
consequences of the provocative act were dangerous to
human life and then acted with conscious disregard for life;
“3. In response to the defendant’s provocative act, Paul Bargas
killed Michael Valles;
“AND
“4. Michael Valles’s death was the natural and probable
consequence of the defendant’s provocative act.
“A provocative act is an act:
“Whose natural and probable consequences are dangerous to human
life, because there is a high probability that the act will provoke a
deadly response.
“In order to prove that Michael Valles’s death was the natural and probable
consequence of the defendant’s provocative act, the People must prove that:
“1. A reasonable person in the defendant’s position would have
foreseen that there was a high probability that his or her act
could begin a chain of events resulting in someone’s death;
“2. The defendant’s act was a direct and substantial factor in
causing Michael Valles’s death;
“AND
“3. Michael Valles’s death would not have happened if the
defendant had not committed the provocative act.
[¶] . . . [¶]
“The People allege that the defendant committed the following
provocative act:
“He entered the . . . Tattoo Parlor armed with a loaded .45
caliber pistol, declared to his companion, Michael Valles, ‘This is
10.
Paul Bargas. He is no good,’ and drew his .45 caliber pistol inside
the Tattoo Parlor.
“You may not find the defendant guilty unless you all agree that the
People have proved that the defendant committed that provocative
act.”
Although the “natural and probable consequences” language of the instruction is
seemingly similar to the natural and probable consequences theory of murder, the two
represent distinct concepts. The “natural and probable consequences” language of the
provocative act instruction is necessary to ensure that the jury finds that a defendant’s
own conduct proximately caused the victim’s death. (Mancilla, supra, 67 Cal.App.5th at
p. 868; accord, People v. Concha (2009) 47 Cal.4th 653, 661 [“ ‘In all homicide cases in
which the conduct of an intermediary is the actual cause of death, the defendant’s liability
will depend on whether it can be demonstrated that his own conduct proximately caused
the victim’s death . . . .’ [Citation.] ‘[I]f the eventual victim’s death is not the natural and
probable consequence of a defendant’s act, then liability cannot attach.’ ” (italics
omitted)].) As stated, liability for murder under the provocative act doctrine additionally
requires the defendant act with at least implied malice. (Gonzalez, supra, 54 Cal.4th at
p. 655.)
In contrast, an accomplice whose liability for murder is premised on the natural
and probable consequences doctrine “need only intend to aid a different, less serious
‘target’ crime,” the natural and probable consequence of which is murder. (People v.
Soto (2020) 51 Cal.App.5th 1043, 1055-1057, abrogated on another ground by Lewis,
supra, 11 Cal.5th at p. 967.) The natural and probable consequences doctrine does not
require actual knowledge by the perpetrator that his or her act is dangerous to human life,
only “that a reasonable person [would] foresee that the nontarget offense is a natural
consequence of the target offense.” (People v. Canizalez (2011) 197 Cal.App.4th 832,
848.)
11.
Here, the jury was not instructed on the natural and probable consequence doctrine
or any target crime upon which murder based on a natural and probable consequences
theory could be predicated. The jury thus was not permitted to convict petitioner under
an imputed malice theory eliminated by Senate Bill No. 1437. The “natural and probable
consequences” language of the provocative act instruction does not transform petitioner’s
conviction for provocative act murder into one under the natural and probable
consequences doctrine.
Accordingly, petitioner is ineligible for relief as a matter of law, and the petition
was properly denied.
DISPOSITION
The order is affirmed.
12.