Filed 7/15/22 P. v. Lopez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN ABOYTES LOPEZ, JR.,
Defendant and Appellant.
| H049158 (Santa Cruz County Super. Ct. No. CR2086) |
MEMORANDUM OPINION[1]
Convicted in 1990 of second degree murder as an aider and abettor or coconspirator, Juan Aboytes Lopez, Jr. filed a petition for resentencing pursuant to former Penal Code section 1170.95 (renumbered § 1172.6, amended by Stats. 2022, ch. 10, effective Jun. 30, 2022).[2] The People concede that the trial court erred by relying on an inapplicable first degree felony murder theory in denying the petition. We agree and reverse.
According to this court’s opinion in People v. Lopez (Jun. 14, 1991, H006857, H007747) [nonpub. opn.], Luis Sandoval was murdered in front of the Watsonville Public Library on November 2, 1988. Lopez was driving Emilio Rocha’s car when Rocha fired the fatal shotgun blast from the front passenger seat. Lopez was charged by information with murder (§ 187) and with being an accessory after the fact (§ 32). The trial court instructed the jury on alternative theories of liability: (1) aiding and abetting or conspiracy to commit murder, and (2) aiding and abetting or conspiracy to commit an uncharged assault, of which the killing was a natural and probable consequence. The prosecution did not argue felony murder, and the trial court did not instruct on felony murder. The jury found Lopez guilty of second degree murder (§ 190), and he was sentenced to state prison for a term of 15 years to life.
Effective January 1, 2019, Senate Bill 1437 (2017-2018 Reg. Sess.) “narrowed the scope of liability for [both] first and second degree murder . . . by amending sections 188 and 189 to restrict the scope of first degree felony murder and to eliminate murder liability based on the natural and probable consequences doctrine.” (People v. Sanchez (2020) 48 Cal.App.5th 914, 917.) Senate Bill 1437 also added former section 1170.95, under which a person previously convicted of felony murder or murder under the natural and probable consequences doctrine can petition for relief under the new amendments. Upon “a prima facie showing of entitlement to relief under [former] section 1170.95, subdivision (a), the petitioner is entitled to receive ‘a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously . . . sentenced.’ ” (Ibid.) At this hearing, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended . . . . If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)
In early 2020, Lopez filed a petition for resentencing pursuant to former section 1170.95. The trial court found that Lopez had made a prima facie showing of entitlement to relief and therefore issued an order to show cause why he should not be resentenced. At the conclusion of a May 25, 2021 hearing on the petition for resentencing, the trial court expressly denied Lopez’s resentencing petition on the ground that that he “was a major participant and acted with reckless indifference to human life.”
On appeal, both parties agree that the theory applied by the trial court—codified at section 189, subdivision (e)(3)—applies only to first degree felony murder cases under section 189, subdivision (a). Because Lopez was convicted of second degree murder under section 187, the Attorney General appropriately concedes that the trial court’s reliance on an inapplicable theory of liability requires reversal.
DISPOSITION
The trial court’s May 25, 2021 order denying Lopez’s petition for resentencing is reversed. On remand, the trial court is directed to determine, with or without further evidentiary hearing, whether Lopez is guilty beyond a reasonable doubt of second degree murder under a currently valid theory of liability.
LIE, J.
WE CONCUR:
GREENWOOD, P.J.
GROVER, J.
People v. Lopez
H049158
[1] We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 852-855.)
[2] Unspecified statutory references are to the Penal Code.
