People v. Lopez CA2/8 ( 2023 )

Filed 10/30/23 P. v. Lopez CA2/8
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B320713
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA400013-02
v.
ORDER MODIFYING
EDGAR A. LOPEZ, OPINION AND DENYING
REHEARING
Defendant and Appellant.
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on October 2, 2023, be
modified as follows:
1. On pages 11 and 12, the final two paragraphs of the Discussion
are deleted and replaced with the following paragraph: “Remand
for a new sentencing hearing is required. (People v. Rocha (2019)
32 Cal.App.5th 352, 360 [“remand is necessary to ensure
proceedings that are just under the circumstances, namely, a
hearing at which both the People and defendant may be present
and advocate for their positions”].) The trial court should not
have sentenced Lopez in absentia as it knew it was denying him
his federal and state constitutional right to be personally present
at resentencing. The court acknowledged Lopez “should have
been here because it’s a resentencing,” but justified its actions by
stating it was “following what they [the Court of Appeal]
dictated.” This court did not dictate that the trial court conduct a
resentencing hearing in absentia or without exercising its
sentencing discretion. The trial court’s inexplicable failure to
correct the error it knew it was making necessitated this
avoidable second remand for resentencing.”
2. On page 12, the first sentence of the Disposition is modified to
add “for resentencing” after the word “remanded.”
3. On page 12, the second and third sentences of the Disposition are
deleted in their entirety.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
_______________________________________________________________________
STRATTON, P. J. GRIMES, J. WILEY, J.
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Filed 10/2/23 P. v. Lopez CA2/8 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
THE PEOPLE, B320713
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA400013-02
v.
EDGAR A. LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Sentence vacated;
remanded for resentencing with direction.
Brad Kaiserman, 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 Blake Armstrong,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Edgar Lopez was convicted of the first degree murders of
Steven Robinson, Aric Lexing, and Scott Grant (Pen. Code,
§ 187)1 and the sale of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a)), with associated enhancements and special
circumstances found true. In Lopez’s first appeal, we affirmed
the convictions but vacated the gang-related special circumstance
and enhancement findings and remanded for further proceedings.
(People v. Lopez (2021) 73 Cal.App.5th 327 (Lopez). The trial
court resentenced Lopez in absentia without a waiver of his
presence and re-imposed the original sentence except for the
gang-related special circumstances and enhancements. Lopez
appeals. We reject his argument that section 1109 requires that
he be granted a new trial, but we vacate the sentence and
remand for a resentencing hearing at which Lopez is present
unless he properly waives his presence.
FACTUAL AND PROCEDURAL BACKGROUND
Lopez was convicted of the first degree murders of
Robinson, Lexing, and Grant, and the sale of methamphetamine.2
(Lopez, supra, 73 Cal.App.5th at p. 332.) The jury found Lopez
intentionally committed each murder while he was an active
participant in a criminal street gang and the murder was
committed to further the activities of the gang (§ 190.2,
subd. (a)(22)). The jury also found Lopez was convicted of
multiple murders (§ 190.2, subd. (a)(3)). (Lopez, at pp. 331–332.)
For all three murders, the jury found true the special allegation
1 Undesignated statutory references are to the Penal Code.
2 We grant Lopez’s request for judicial notice of the record
from his prior appeal, case No. B301050.
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that a principal personally and intentionally discharged a
firearm, causing the victim great bodily injury or death
(§ 12022.53, subds. (d) & (e)(1)); in the Lexing and Grant
murders, the jury also found true allegations that Lopez
personally and intentionally discharged a firearm, which caused
Lexing and Grant great bodily injury or death (§ 12022.53,
subd. (d)). (Lopez, at p. 332.) The jury found all four offenses
were committed for the benefit of a criminal street gang
(§ 186.22, subds. (b)(1)(A) & (b)(1)(C)). (Lopez, at p. 332.)
The prosecution sought the death penalty, but the jury
selected a sentence of life in prison without the possibility of
parole. (Lopez, supra, 73 Cal.App.5th at p. 332.) For each of the
three murders, Lopez was sentenced to life in prison without the
possibility of parole, plus a sentence of 25 years to life for the
firearms enhancement in section 12022.53, subdivision (d).
(Lopez, at p. 332.) Additionally, the court imposed the mid-term
of three years for the drug offense, plus three years for the gang
enhancement. (Ibid.) The court designated the sentences to run
consecutively. (Ibid.)
Lopez appealed. In Lopez, supra, 73 Cal.App.5th at
page 348, we affirmed his convictions but vacated the gang
enhancements under section 186.22, the special circumstance
findings under section 190.2, subdivision (a)(22), and the gang-
related firearms enhancements under section 12022.53,
subdivision (e), all because of changes in the law made by
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 699, §§ 1–4.) We remanded the matter to give the People the
opportunity to prove the applicability of the enhancements and
special circumstances under amended section 186.22. (Lopez, at
pp. 346, 348.)
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On May 11, 2022, the trial court conducted a resentencing
hearing. Lopez’s counsel requested the hearing be continued for
two reasons. First, counsel wanted to explore with the People a
recommended sentence of life with the possibility of parole rather
than life without the possibility of parole. The court rejected this
argument, stating that even if the People recommended the
possibility of parole, it would not follow that recommendation
based on the evidence at trial.
Second, Lopez’s counsel sought a continuance to ascertain
whether Lopez wished to be present or to waive his presence at
the resentencing hearing. The court refused to continue the
hearing, stating that in its view, the Court of Appeal had
“basically modified” Lopez’s sentence to comply with Assembly
Bill No. 333, and its job was merely to “resentence the defendant
in accordance with their modifications.”
The court did not ask the prosecution whether it wished to
retry the gang enhancements under section 186.22, the special
circumstances under section 190.2, subdivision (a)(22), and the
gang-related firearms enhancements under section 12022.53,
subdivision (e). It imposed a sentence identical to the original
sentence except for the omission of the vacated enhancements
and findings: Lopez was sentenced to a consecutive term of life
imprisonment without the possibility of parole for each murder,
plus two consecutive sentences of 25 years to life on the Lexing
and Grant murders pursuant to section 12022.53, subdivision (d),
and a consecutive midterm sentence of three years for the
methamphetamine conviction.
After imposing sentence, the court said, “Technically, I
think he should have been here because it’s a resentencing, but I
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was following what they [the Court of Appeal] dictated.” Lopez
appeals.
DISCUSSION
I. Section 1109
Lopez argues he is entitled to a new trial based on the
retroactive application of section 1109, which provides, inter alia,
that gang enhancements under section 186.22, subdivisions (b)
and (d) must be bifurcated from the trial on substantive offenses
upon defense request. He contends gang-related special
circumstance allegations are also subject to bifurcation pursuant
to that statute, and he claims the evidence relating to gangs
would not otherwise have been admissible at trial. Lopez argues
the failure to bifurcate the gang-related allegations against him
constituted structural error, or, in the alternative, was prejudicial
under either the Chapman or Watson standard. (Chapman v
California (1967) 386 U.S. 18 (Chapman); People v. Watson
(1956) 46 Cal.2d 818 (Watson).)
We recognize the split of appellate opinion on the question
of section 1109’s retroactivity. The Supreme Court has granted
review to resolve the issue. (People v. Burgos (2022)
77 Cal.App.5th 550, review granted July 13, 2022, S274743
[§ 1109 applies retroactively]; People v. Perez (2022)
78 Cal.App.5th 192, review granted Aug. 17, 2022, S275090
[§ 1109 does not apply retroactively]; People v. Ramirez (2022)
79 Cal.App.5th 48, review granted Oct. 12, 2022, S275341 [same];
People v. Boukes (2022) 83 Cal.App.5th 937, review granted Dec.
14, 2022, S277103 [same]).)
Even if section 1109 were considered to operate
retroactively, reversal would not be required here. Our Supreme
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Court has rejected the contention that failure to bifurcate
constitutes structural error, and it has concluded the Watson
standard for state-law error applies when examining whether the
failure to bifurcate was prejudicial with respect to an appellant’s
guilty verdicts. (People v. Tran (2022) 13 Cal.5th 1169, 1208–
1209.)
Applying the Watson standard, any error in failing to
bifurcate was not prejudicial because even if the gang
enhancement allegations had been bifurcated, the gang evidence
would have been admissible at trial to prove the special
circumstance alleged against Lopez pursuant to section 190.2,
subdivision (a)(22), which makes first degree murder punishable
by death or life without the possibility of parole if “[t]he
defendant intentionally killed the victim while the defendant was
an active participant in a criminal street gang, as defined in
subdivision (f) of Section 186.22, and the murder was carried out
to further the activities of the criminal street gang.” (§ 190.2,
subd. (a)(22).) As section 1109 makes no reference to section
190.22, subdivision (a)(22), it does not apply to the determination
of special circumstance allegations under section 190.2(a)(22).
(People v. Montano (2022) 80 Cal.App.5th 82, 114.) Because the
gang evidence would have still come in at trial due to the section
190.2, subdivision (a)(22) special circumstance allegation, Lopez
was not prejudiced by the failure to bifurcate. (See People v.
Hernandez (2004) 33 Cal.4th 1040, 1049–1050 [“To the extent the
evidence supporting the gang enhancement would be admissible
at a trial of guilt, any inference of prejudice would be dispelled”];
People v. Osband (1996) 13 Cal.4th 622, 667 [if evidence is cross-
admissible, prejudice is dispelled].)
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Contending Montano was incorrectly decided, Lopez
proposes we consider section 1109 ambiguous because it does not
mention the gang-related special circumstance, then judicially
rewrite the statute to expand it to gang-related special
circumstance allegations. We may not do so. There is nothing
ambiguous about section 1109; it simply does not provide for
bifurcation with respect to gang-related special circumstances.
“When construing a statute, our job is ‘simply to ascertain and
declare what is in terms or in substance contained therein, not to
insert what has been omitted, or to omit what has been
inserted.’ ” (People v. Bell (2015) 241 Cal.App.4th 315, 321.)
Lopez cannot establish prejudice here.
II. Resentencing in Absentia
Lopez correctly contends, and the Attorney General does
not dispute, that the trial court erred in proceeding with the
resentencing hearing in Lopez’s absence without a waiver of his
presence. (See People v. Nieves (2021) 11 Cal.5th 404, 508
[recognizing a criminal defendant’s “ ‘constitutional and statutory
right to be present at [a] sentence modification hearing and
imposition of sentence’ ”]; People v. Doolin (2009) 45 Cal.4th 390,
453 [a defendant has a federal constitutional right to be present
at “all critical stages” of a criminal prosecution; sentencing is a
critical stage]; People v. Rodriguez (1998) 17 Cal.4th 253, 260
(Rodriguez) [resentencing is critical stage when court has
discretion to reconsider sentence on remand]; People v. Cutting
(2019) 42 Cal.App.5th 344, 348 (Cutting) [same]; People v.
Guerrero (2022) 76 Cal.App.5th 329, 336 (Guerrero) [same];
People v. Simms (2018) 23 Cal.App.5th 987, 996 (Simms)
[defendant’s right to be personally present “extends to sentencing
and resentencing proceedings”]; see generally People v. Davis
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(2005) 36 Cal.4th 510, 531 [a defendant may waive his or her
right to be present for a critical stage such as sentencing provided
the waiver is knowing, intelligent and voluntary].)
Because the trial court’s error resulted in a violation of
Lopez’s federal constitutional right to be present at a critical
stage of the proceedings, we review the error under Chapman, ,
to determine if it was harmless beyond a reasonable doubt.
(People v. Mendoza (2016) 62 Cal.4th 856, 902 [“ ‘Under the
federal Constitution, error pertaining to a defendant’s presence is
evaluated under the harmless-beyond-a-reasonable-doubt
standard set forth in Chapman’ ”].) “Under that standard, the
error ‘may be deemed harmless only if we can conclude beyond a
reasonable doubt that the deprivation did not affect the outcome
of the proceeding.’ ” (Cutting, supra, 42 Cal.App.5th at p. 348.)
The Attorney General argues the error was harmless
beyond a reasonable doubt because the court “followed the
appellate opinion and vacated the gang enhancement and special
allegation affected by [Assembly Bill No.] 333, and otherwise
sentenced appellant to the same sentence that he received after
trial and was present in court.” It is true the trial court followed
our prior opinion insofar as it vacated the portions of the sentence
we instructed it to vacate. (Lopez, supra, 73 Cal.App.5th at
pp. 346, 348.) However, the court failed to afford the People the
opportunity to retry the enhancements and special circumstances
in accordance with the changes in the law, as we expressly
instructed it to do. (Id. at p. 346.) Additionally, the trial court
failed to appreciate the scope of its authority on remand. The
California Supreme Court has “held that when part of a sentence
is stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
8
exercise its sentencing discretion in light of the changed
circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.)
Accordingly, at resentencing, the trial court had jurisdiction to
modify every aspect of the sentence, not just to vacate the
enhancements and the special circumstances; and in
resentencing Lopez, the court could consider “ ‘any pertinent
circumstances which have arisen since the prior sentence was
imposed’ ” in exercising its discretion. (Ibid.)
Given that the court had full authority to resentence Lopez,
it is obvious that the court’s reimposition of the same sentence
except for the vacated enhancements and special circumstances is
not sufficient to establish that the error in resentencing Lopez in
his absence was harmless beyond a reasonable doubt. As the
court explained in Cutting, “Here, Cutting may have offered
mitigating factors that arose after his original sentencing; he may
have expressed remorse; he may have made a plea for leniency.
[Citation.] While the trial court may or may not have chosen to
believe what Cutting might have said, if he said anything, we
cannot conclude beyond a reasonable doubt that his presence at
the hearing would not have affected the outcome. (See Simms,
supra, 23 Cal.App.5th at p. 998; see also Rodriguez, supra,17 Cal.4th at p. 258 [‘[t]he evidence and arguments that might be
presented on remand cannot justly be considered “superfluous,”
because defendant and his counsel have never enjoyed a full and
fair opportunity to marshal and present the case supporting a
favorable exercise of discretion’].)” (Cutting, supra,
42 Cal.App.5th at p. 350.)
Here, while Lopez’s murder sentences were fixed at life
without the possibility of parole by section 190.2,
subdivision (a)(3), the trial court retained the discretion to elect
9
whether to strike the firearm enhancements pursuant to section
12022.53, subdivision (h), or to impose a lesser firearm
enhancement. (People v. Tirado (2022) 12 Cal.5th 688, 692.) It
had the discretion to impose a lower term sentence on the
determinate count, and to elect whether to impose concurrent or
consecutive sentences. Had Lopez been present and had the
court conducted a full resentencing hearing, Lopez may have
been able to present mitigating factors or other information to
the court. But because the court resentenced Lopez without
giving his counsel the opportunity to consult with him, counsel
could not present, and indeed was entirely unaware of, any
mitigating factors that may have arisen in the years that had
passed since the original sentencing. Accordingly here, as in
Cutting, we cannot conclude beyond a reasonable doubt that
Lopez’s presence at the hearing would not have affected the
outcome.
The Attorney General argues sentencing Lopez in his
absence without a valid waiver was harmless beyond a
reasonable doubt. This is so, the Attorney General contends,
because the court’s statement that it would not follow a
recommendation of life with the possibility of parole “shows that
it was not inclined to alter its sentence beyond what the appellate
opinion instructed,” The Attorney General made a similar
argument in Guerrero, contending that sentencing a defendant in
absentia was harmless error because the court’s comments
indicated it would not have imposed a lesser sentence had the
defendant been present, nor would it have found youth-related
mitigating factors persuasive if had it considered them.
(Guerrero, supra, 76 Cal.App.5th at pp. 337–338.) The Court of
Appeal in Guerrero found this argument “troubling,” because a
10
court’s statement that it was not inclined to consider a sentence
other than that originally imposed, when made without
evaluating the factors to be considered at sentencing, “hardly
means we can conclude a court properly exercising its well-
informed sentencing discretion, rather than adamantly adhering
to its initial determination, might not reach a different
conclusion. [A defendant] is entitled to no less than a thoughtful,
well-considered decision.” (Ibid.)
Remand for a new sentencing hearing is required. (People
v. Rocha (2019) 32 Cal.App.5th 352, 360 [“remand is necessary to
ensure proceedings that are just under the circumstances,
namely, a hearing at which both the People and defendant may
be present and advocate for their positions”].) On remand, the
trial court shall afford the People the opportunity to elect
whether to retry the gang allegations and special circumstance
allegations under the amended requirements of section 186.22.
(Lopez, supra, 73 Cal.App.5th at p. 346; People v. Eagle (2016)
246 Cal.App.4th 275, 280 [when a statutory amendment adds an
additional element to an offense, the prosecution must be
afforded the opportunity to establish the additional element upon
remand].) If the People elect not to retry Lopez on these
allegations, or at the conclusion of any retrial, the trial court is
directed to resentence Lopez, exercising its full sentencing
discretion and conducting the hearing in Lopez’s presence unless
Lopez validly waives his constitutional right to be present.
The trial court should not have sentenced Lopez in absentia
as it knew it was denying him his federal and state constitutional
right to be personally present at resentencing. The court
acknowledged Lopez “should have been here because it’s a
resentencing,” but justified its actions by stating it was “following
11
what they [the Court of Appeal] dictated.” This court did not
dictate that the trial court conduct a resentencing hearing in
absentia, without following the instructions of this court, or
without exercising its sentencing discretion. The trial court’s
inexplicable failure to correct the error it knew it was making
necessitated this avoidable second remand for resentencing.
DISPOSITION
The sentence is vacated and the matter remanded. On
remand, the trial court shall afford the People the opportunity to
elect whether to retry the gang enhancement allegations under
section 186.22, the special circumstances allegations under
section 190.2, subdivision (a)(22), and the gang-related firearm
enhancement allegations under section 12022.53, subdivision (e).
If the People elect not to retry Lopez on these allegations, or at
the conclusion of any retrial, the trial court is directed to
resentence Lopez, exercising its full sentencing discretion and
conducting the hearing in Lopez’s presence unless Lopez validly
waives his right to be present.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J. WILEY, J.
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