Filed 4/29/22 P. v. Lopez CA2/1

On transfer

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from an order of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Remanded with directions.

Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller, Amanda V. Lopez and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Defendant and appellant Jordan Lopez challenges the trial court’s denial of his petition for resentencing under Penal Code[1] section 1170.95. The trial court found that Lopez was ineligible for relief because he pleaded no contest to attempted murder, and the statute did not allow resentencing for that crime. We previously affirmed, but the Supreme Court ordered us to vacate our opinion and reconsider the case in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill No. 775), which expanded eligibility for resentencing under section 1170.95 to attempted murder, and People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the standards for adjudicating a petition for resentencing. In light of these new authorities, we remand the case to the trial court with directions to reconsider the petition.

FACTS AND PROCEEDINGS BELOW

In 2010, Lopez pleaded no contest to one count of attempted murder, in violation of sections 187 and 664. He admitted that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a principal used a firearm in the commission of the offense. (§ 12022.53, subds. (c) & (e).) The trial court imposed a sentence of 29 years in prison, consisting of the high term of nine years for attempted murder, plus 20 years for the firearm enhancement.

We described the facts of the case in an earlier opinion in which we affirmed Lopez’s sentence and denied his petition for a writ of habeas corpus: “On February 3, 2009, around noon, Joel Becerra’s car was parked on Venice Boulevard near Cattaraugus. Becerra was removing items from the trunk of his car, and he noticed two young men near the corner looking at him. One of the men, later identified as Hansel Machuca, was wearing a dark-colored hoodie; the other man, later identified as [Lopez], was taller and not wearing a hoodie. After a few moments, the man in the hoodie, Machuca, approached Becerra. Machuca asked Becerra for his gang affiliation. Becerra responded that he did not belong to a gang, and Machuca pulled out a black gun. Becerra ran across Venice Boulevard in an attempt to escape, and he heard two shots. One went through his chest. Becerra did not get a good look at the person who shot him.” (People v. Lopez (Sept. 29, 2011, B225481, B233800) [nonpub. opn.].)

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.), which eliminated liability for murder under the natural and probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 846.) The legislation also enacted section 1170.95, which establishes a procedure for vacating murder convictions that were based upon the natural and probable consequences doctrine and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675−6677.)

In January 2019, Lopez filed a petition in the superior court for resentencing under section 1170.95. At a hearing on March 11, 2019, the court summarily denied Lopez’s petition on the ground that “Senate Bill [No.] 1437 does not apply to attempted murder.” After we affirmed the court’s denial of the petition, the Legislature enacted Senate Bill No. 775, which amended section 1170.95 to allow defendants convicted of “attempted murder under the natural and probable consequences doctrine” to petition for resentencing. (Stats. 2021, ch. 551, § 2, p. 6971, amending § 1170.95, subd. (a).)

DISCUSSION

Lopez contends that we must reverse the denial of his petition. The Attorney General concedes that Lopez may be able to make a prima facie case for resentencing, and that we must remand the case to the trial court to allow him to do so. We agree.

When a defendant files a facially sufficient petition for resentencing under section 1170.95, the trial court must first determine whether the petitioner has made a prima facie showing for relief. (§ 1170.95, subd. (c).) Our Supreme Court has explained that “the prima facie inquiry under [section 1170.95,] subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “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. If so, the court must issue an order to show cause.” ’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules of Court, rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456 . . . .) ‘However, if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)

The court may consult the record of conviction at this stage, but “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ (Drayton, supra, 47 Cal.App.5th at p. 980.) . . . [T]he ‘prima facie bar was intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.)

In denying Lopez’s petition at the prima facie stage, the trial court found that he failed to clear even this low bar. At the time the court rendered its decision, this determination was correct. Prior to the enactment of Senate Bill No. 775, relief under section 1170.95 was restricted to defendants “convicted of felony murder or murder under a natural and probable consequences theory.” (Former § 1170.95, subd. (a).) Lopez failed to qualify because he was not convicted of murder. Although they are closely related, murder and attempted murder are separate crimes. (People v. Marinelli (2014) 225 Cal.App.4th 1, 5 [“t is well established that ‘ “[a]n attempt is an offense ‘separate’ and ‘distinct’ from the completed crime” ’ ”].)

The limited record before us does not allow us to deny the petition on the ground that Lopez remains ineligible as a matter of law. The only available account of the facts of the case comes from the previous opinion in Lopez’s original appeal and habeas petition. ([i]People v. Lopez, supra, B225481, B233800.) Prior appellate opinions are part of the record of conviction, but as the Supreme Court cautioned in Lewis, “[T]he probative value of an appellate opinion is case specific, and ‘it is certainly correct that an appellate opinion might not supply all answers.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) To find Lopez ineligible on the basis of the facts described in our prior opinion would require us to “engage in ‘factfinding involving the weighing of evidence or the exercise of discretion’ ” (ibid.), which the Supreme Court has forbidden at this stage.

We need not determine whether Senate Bill No. 775 applies retroactively to Lopez’s case because, even if it did not, he could simply file a new petition for resentencing. Rather than require him to do so, in the interest of judicial efficiency, we will remand the case to the trial court with directions to consider the petition under the new law.

DISPOSITION

The case is remanded to the trial court with directions to appoint counsel to represent Lopez and to commence proceedings under section 1170.95, subdivision (c).

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.

[1] Subsequent statutory references are to the Penal Code.