People v. Lopez CA4/1

Filed 8/7/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D081618
Plaintiff and Respondent,
v. (Super. Ct. No. FSB804305)
CARLOS LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, Harold T. Wilson, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Carlos Lopez shot Bobby B. twice in the back, killing him, and shot
Byron G. in his arm and back. In 2014, a jury convicted him of first degree
murder (Pen. Code,1 § 187, subd. (a); count 1) and attempted murder (§§ 664,
187, subd. (a); count 2). The jury also found true allegations that Lopez
personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally
discharged a firearm causing great bodily injury and death (§ 12022.53,
1 Undesignated statutory references are to the Penal Code.
subds. (c), (d)), and that he committed the crimes for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C)). The court sentenced Lopez to a total
indeterminate sentence of 90 years to life. This court affirmed the
convictions, but remanded the matter to the trial court to resolve a discovery
issue. (People v. Lopez, (March 30, 2016, D069279) [nonpub. opn.].) We later
affirmed the trial court’s ruling that there was no discovery violation and
affirmed the judgment of the superior court. (People v. Lopez, (Dec. 7, 2017,
D072508) [nonpub. opn.].)
In 2022, Lopez petitioned for resentencing under section 1172.6 (former
section 1170.95). His supporting declaration consisted of a preprinted form
where he checked boxes that stated (1) a complaint, information, or
indictment was filed against him that allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine; (2) he was
convicted of murder, attempted murder, or manslaughter following a trial, or
accepted a plea offer in lieu of a trial at which he could have been convicted of
murder or attempted murder; and (3) he could not presently be convicted of
murder or attempted murder because of changes made to sections 188 and
189, effective January 1, 2019.
The trial court held a hearing where Lopez’s counsel requested the
court make a prima facie finding on the petition. The court denied the
petition based on Lopez’s failure to make a prima facie case for relief. (§
1172.6, subd. (c).) It noted that it had reviewed the record of conviction and
did not engage in fact finding, weighing evidence, or determining credibility.
After examining the record of conviction, the court found:
2
“[T]he defendant was the actual shooter in this case; that
the jury was not instructed on the theory of felony murder
or the natural or probable consequence doctrine. Jury was
only instructed as to CALCRIM 520 and 521 with respect to
the murder, and 600 and 601 with respect to the attempted
murder. So with that, find that the defendant was the
actual shooter and killer, so the prima facie showing has
not been shown. Petition is denied.”
Lopez appealed and we appointed counsel to represent him. Counsel
filed an opening brief asking that we exercise our discretion to independently
review the record for error pursuant to People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo) and identifying as a possible issue whether the trial court
erred in denying the petition for resentencing. We invited Lopez to submit a
supplemental brief, which he did. As we understand his arguments, Lopez
contends that: (1) the jury instructions for his first trial, which ended with a
hung jury, affect his petition for resentencing; (2) under People v. Strong
(2022) 13 Cal.5th 698 (Strong), the court erred when it found he had not
made a prima facie showing; and (3) he is entitled to resentencing under
Assembly Bill 333 and Senate Bill 81.2 We conclude the record shows that
Lopez is not entitled to relief under section 1172.6 and accordingly affirm the
trial court’s order denying the petition for resentencing.
2 Because this appeal is from an order denying postconviction relief
rather than a first appeal as of right from a criminal conviction, Lopez is not
entitled to our independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436, or its federal constitutional counterpart, People v.
Anders (1967) 386 U.S. 738. (Delgadillo, supra, 14 Cal.5th at pp. 221–222,
230; see People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial
review mandated by Anders applies only to first appeal as of right].)
However, he is entitled to our consideration of any contentions raised in his
supplemental brief. (Delgadillo, supra, at p. 232.)
3
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 significantly limited
the scope of the felony-murder rule and eliminated liability for murder under
the natural and probable consequences doctrine through two key provisions.
(Stats. 2018, ch. 1015, § 1, subd. (f).) In particular, this legislation “limited
the scope of the felony-murder rule to effectuate the Legislature’s declared
intent ‘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.’ [Citations.] Penal Code section 189, as amended, now limits
liability under a felony-murder theory principally to ‘actual killer[s]’ (Pen.
Code, § 189, subd. (e)(1)) and those who, ‘with the intent to kill,’ aid or abet
‘the actual killer in the commission of murder in the first degree’ (id., subd.
(e)(2)). Defendants who were neither actual killers nor acted with the intent
to kill can be held liable for murder only if they were ‘major participant[s] in
the underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of [Penal Code] Section 190.2’ — that is, the
statute defining the felony-murder special circumstance. (Id., § 189, subd.
(e)(3).)” (Strong, supra, 13 Cal.5th at pp. 707–708.)
The prima facie inquiry under section 1172.6 subdivision (c) is
“limited.” (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) The court “ ‘
“takes petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved.” ’ ” (Ibid.) The court may review the
record of conviction to determine whether the defendant has stated a prima
facie case for relief, but it “should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972 & fn. 6.).)
4
In reviewing the record of conviction, the trial court may examine, among
other items, the charging document (People v. White (2014) 223 Cal.App.4th
512, 524-525), jury instructions (People v. Offley (2020) 48 Cal.App.5th 588,
599), verdict forms (People v. Ervin (2021) 72 Cal.App.5th 90, 106), and (to a
limited extent) a prior appellate opinion (Lewis, supra, at p. 972). A trial
court’s decision to deny a resentencing petition at the prima facie stage “is
appropriate only if the record of conviction demonstrates that ‘the petitioner
is ineligible for relief as a matter of law.’ [Citations.] This is a purely legal
conclusion, which we review de novo.” (Ervin, supra, at p. 101.)
The record of conviction here shows Lopez is the only person charged in
the case. The jury convicted him of murder and attempted murder, finding
true additional allegations involving the personal use and discharge of a
firearm. The court did not give any jury instructions on principals, aiders
and abettors, felony murder, natural and probable consequences, conspiracy,
target and nontarget offenses, or any other theories of imputed malice. On
count 1, the court instructed on first and second degree murder–that Lopez
unlawfully caused the death of another person with malice aforethought.
(CALCRIM Nos. 520, 521.) The record of conviction establishes that the jury
convicted Lopez for murder as the actual killer who acted with an intent to
kill rather than on any type of imputed malice theory. (See People v. Garcia
(2022) 82 Cal.App.5th 956, 973 [where record of conviction “unequivocally
establishes that defendant was the ‘actual killer,’ ” defendant is not entitled
to relief under section 1172.6 as a matter of law].)
On count 2, the court instructed that Lopez was guilty of attempted
murder if he took a direct but ineffective step toward killing another person
with the intent to kill. (CALCRIM No. 600.) Under the plain language of
section 1172.6, a person convicted of attempted murder is eligible for relief
5
only if that conviction was based on the natural and probable consequences
doctrine. (People v. Coley (2022) 77 Cal.App.5th 539, 548.) The jurors in this
case were not instructed on that doctrine. Rather, they were given
CALCRIM No. 600, which advised them that an attempted murder conviction
required a finding that “the defendants intended to kill [the victim].” Lopez
is not entitled to relief under section 1172.6 as a matter of law.
Lopez suggests that the jury instructions for his first trial, which ended
in a hung jury, might be germane to his petition for resentencing and asks
that we review them. But the only question before us is whether Lopez’s
conviction may have been based on a theory that is no longer viable.
Instructions that did not lead to his conviction are not relevant. He also
contends that under Strong, supra, 13 Cal.5th 698, the court erred when it
found he had not made a prima facie showing. But as we noted above, our
high court in Strong summarized the changes in the law created by Senate
Bill No. 1437 and those changes do not entitle Lopez to relief as a matter of
law because he was the actual killer. (Strong, supra, at p. 710 [“Senate Bill
1437 relief is unavailable if the defendant was either the actual killer, acted
with the intent to kill, or ‘was a major participant in the underlying felony
and acted with reckless indifference to human life, . . . .’ ”].)
Finally, Lopez maintains he is entitled to resentencing under Assembly
Bill No. 333 and Senate Bill No. 81. Assembly Bill 333’s amendments to
section 186.22 apply retroactively to defendants whose convictions are not yet
final. (People v. Tran (2022) 13 Cal.5th 1169, 1206–1207.) Here, Lopez’s
conviction was final before he filed his petition for relief in 2022 and the trial
court did not vacate his sentence at the section 1172.6 hearing. (See People v.
Guillory (2022) 82 Cal.App.5th 326 [“[O]rder to show cause under section
1172.6 does not vacate the petitioner’s sentence but sets in motion
6
proceedings to determine whether the petitioner is entitled to vacatur and
resentencing.”].) Thus, he is not eligible for relief under Assembly Bill No.
333.3 Senate Bill No. 81’s amendments to section 1385 expressly apply to “all
sentencings occurring after January 1, 2022.” (§ 1385, subd. (c)(7), italics
added.) Here, Lopez’s sentence was imposed prior to the effective date of
Senate Bill No. 81 and he is not entitled to resentencing.
DISPOSITION
The order denying defendant’s Penal Code section 1172.6 petition is
affirmed.
DATO, J.
WE CONCUR:
O'ROURKE, Acting P. J.
RUBIN, J.
3 In any event, although the jury found true the section 186.22
allegations connected to counts 1 and 2, the court struck these allegations at
the sentencing hearing.
7