People v. Lopez CA1/2 ( 2024 )

Filed 10/10/24 P. v. Lopez CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A169364
v.
JOEL GARCIA LOPEZ, (Alameda County
Super. Ct. No.17CR006892B)
Defendant and Appellant.
After Joel Garcia Lopez (Garcia) was convicted of first degree murder
and other offenses, the convictions were affirmed on appeal, but the matter
was remanded for resentencing. This appeal is from the orders on
resentencing. Garcia’s appointed appellate counsel has filed a brief pursuant
to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which she raises no issue
and asks this court for an independent review of the record. Counsel attests
that she advised Garcia of his right to file a supplemental brief, but Garcia
has not filed one.
Having examined the entire record in accordance with Wende, we agree
with counsel that there are no arguable issues requiring further briefing and
affirm.
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BACKGROUND
The facts underlying Garcia’s convictions were related in our
unpublished opinion on the appeal. (People v. Garcia Lopez (October 26,
2022, A161203).) In brief, Garcia and codefendant Ferrer were convicted of
murdering Lorenzo Castrejon in retaliation for Castrejon giving his girlfriend
a black eye. On the evening of the murder, the girlfriend heard Ferrer and
Garcia talking about beating and robbing Castrejon. After an initial
confrontation in a convenience store parking lot, Castrejon suggested they go
somewhere without surveillance cameras. Garcia and Ferrer followed
Castrejon’s car to a dead-end street and, as Castrejon tried to turn his car
around, sprayed the car with dozens of bullets, killing Castrejon. Garcia was
using an SKS-style rifle, and the codefendant was using a handgun.
Castrejon’s girlfriend and her friend Patricia F. had been at the convenience
store parking lot and had also followed Castrejon, stopping their car at the
beginning of the dead end street. Patricia F. testified at trial that Garcia had
threatened to kill her if she talked.
After a jury trial, Garcia was convicted of first degree murder (Pen.
Code, § 187, subd. (a)1) (count 1), with findings that he personally discharged
a firearm causing death (§ 12022.53, subd. (d)), personally used a firearm in
the commission of a felony (§ 12022.5, subd. (a)) and personally inflicted great
bodily injury (§ 12022.7, subd. (a)); shooting at an occupied motor vehicle
(§ 246) (count 2), with the same firearm findings; possession of a firearm by a
felon (§ 29800, subd. (a)) (count 5); and one count of dissuading a witness
(§ 136.1, subd. (c)(1)) (count 7).2 He was sentenced on count 1 to an aggregate
1 All further statutory references are to the Penal Code.
2 The jury found Garcia not guilty of another charge of dissuading a
witness (count 8). Counts 3, 4 and 6 pertained to codefendants.
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term of 50 years to life, 25 years to life for the first degree murder and a
consecutive 25 years to life for the section 12022.53, subdivision (d),
enhancement. Sentences on the remaining counts and enhancements were
imposed concurrently or stayed pursuant to section 654.3 Garcia received
credit for 1,307 actual days of custody.
We affirmed Garcia’s convictions but accepted the People’s concession
that the section 12022.5, subdivision (a) firearm enhancement on count 2
(which had been stayed) had to be stricken because firearm use was an
element of the offense. We remanded for resentencing, noting that the trial
court would be required to consider ameliorative sentencing legislation that
had taken effect during the pendency of the appeal.
The trial court resentenced Garcia after considering amendments to
section 1385 that became effective on January 1, 2022 (Stats. 2021, ch. 721,
§ 1), subsequent to Garcia’s original sentencing. The court again imposed an
aggregate sentence of 50 years to life. On count 1, the court imposed 25 years
to life on the murder conviction and a consecutive 25 years to life on the
section 12022.53, subdivision (d) enhancement, and struck the section
12022.5 and section 12022.7 enhancements pursuant to section 1385. The
court imposed five years on count 2 with execution of sentence stayed under
section 654 and struck the enhancements on that count; imposed the
midterm of three years on count 7, concurrent with count 1; and imposed the
3 The court imposed the upper term of seven years on count 2, stayed
under section 654, and stayed sentences on the firearm enhancements for
that count. The court also imposed a concurrent upper term of four years on
count 7 and a concurrent middle term of two years on count 5. The court
initially imposed a concurrent eight months, one-third of the middle term, on
count 5, then subsequently corrected this sentence nunc pro tunc to a
concurrent full middle term of two years. Sentences on the remaining
enhancements were stayed pursuant to section 654.
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low term of 16 months on count 5 with execution of sentence stayed under
section 654. Garcia filed a timely notice of appeal.
DISCUSSION
Pursuant to Wende, we are required “to conduct a review of the entire
record whenever appointed counsel submits a brief which raises no specific
issues or describes the appeal as frivolous.” (Wende, supra, 25 Cal.3d at
p. 441; Anders v. California (1967) 386 U.S. 738.)
As amended, section 1385 requires the court to dismiss an
enhancement “if it is in the furtherance of justice to do so” (§ 1385,
subd. (c)(1)) and, in exercising its discretion, to “consider and afford great
weight” to defense evidence of any of specified mitigating circumstances (id.,
subd. (c)(2)). Proof of the presence of one of the mitigating circumstances
“weighs greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public safety.” (Id.,
subd. (c)(2).)
Garcia argued that two of the section 1385 mitigating circumstances
supported dismissing the firearm enhancements: subdivision (c)(2)(B),
providing for dismissal of all but one enhancement when multiple
enhancements are alleged in a single case, and subdivision (c)(2)(C),
providing for dismissal of an enhancement that could result in a sentence of
over 20 years.4 The People agreed that the court had discretion to strike the
strike the section 12022.53, subdivision (d) enhancement.
4 Garcia’s sentencing memorandum, filed on August 16, 2023,
mistakenly referred to these two circumstances as subdivision (c)(3)(B) and
(c)(3)(C) of section 1385 in accordance with their designation in Senate Bill
No. 81. (Stats. 2021, ch. 721, § 1.) A subsequent amendment applicable to
sentencings after January 1, 2022, placed the mitigating circumstances in
subdivision (c)(2) rather than subdivision (c)(3). (Stats. 2022, ch. 58, § 15.)
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The trial court held an initial hearing for arguments from counsel and
statements from members of the victim’s family, then at a second hearing
heard from Garcia and delivered the sentence. The court explained that
changes in sentencing law since the original sentencing had altered the
manner in which the court was required to exercise its discretion; in
particular, section 1385, subdivision (c)(2), now requires the court “to give
great weight” to specified mitigating factors in determining whether or not to
strike an enhancement.
The court found that none of the section 1385 mitigating circumstances
applied. In particular, the court concluded that section 1385,
subdivision (c)(2)(C) did not apply because Garcia’s sentence for the first
degree murder was 25 years to life, and thus it was the murder itself, not the
section 12022.53, subdivision (d) enhancement, that caused Garcia’s sentence
to be over 20 years. As the court noted, this conclusion was supported by our
decision in People v. Lipscomb (2022) 87 Cal.App.5th 9, 20.
The court then discussed sentencing factors under California Rules of
Court, rules 4.421 and 4.423. The court found there were no mitigating
circumstances and several aggravating ones: The crime involved great
violence, great bodily injury or other acts disclosing a high degree of cruelty,
viciousness or callousness, Garcia was armed with or used a weapon in
committing the offense, he threatened witnesses, he engaged in violent
conduct indicating a serious danger to society and he had a prior conviction
for felony domestic violence that resulted in a four-year prison sentence. The
court emphasized that the manner in which Garcia participated in the
offense was “especially cruel or callous,” in that he brought an SKS assault
rifle to confront the victim over a misdemeanor domestic violence assault
offense, began firing as soon as the car stopped and shot repeatedly at “very
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short range.” Commenting on the “utterly lethal” effect of the weapon Garcia
used, the court concluded, “The fact that he used that firearm and the way he
did, that he shot it over and over again at very short range reflects how
dangerous Mr. Garcia is and continues to be so.”
Concluding that none of the section 1385 mitigating factors were
present and that, under the Rules of Court, there were “significant”
circumstances in aggravation and none in mitigation, the trial court exercised
its discretion not to dismiss the section 12022.53, subdivision (d),
enhancement on count 1. It did not abuse its discretion in doing so. The
court did strike the section 12022.53, subdivision (d), enhancement on
count 2, as well as the additional enhancements on both counts 1 and 2.
Our review of the record reveals no arguable issues requiring further
briefing.
DISPOSITION
The judgment is affirmed.
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STEWART, P. J.
We concur.
RICHMAN, J.
DESAUTELS, J.
People v. Garcia Lopez (A169364)
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