Opinion
G061027
04-20-2023
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ANGEL LOPEZ, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann, and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Riverside County, No. RIF090811, John D. Molloy, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann, and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P.J.
Daniel Angel Lopez appeals from the trial court's postjudgment order denying his petition for resentencing pursuant to former Penal Code section 1170.95.Lopez argues the court erred by denying his petition at the prima facie stage and depriving him of the opportunity to present new evidence at an evidentiary hearing. None of his contentions have merit, and we affirm the postjudgment order.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion. All further statutory references are to the Penal Code.
FACTS
A detailed recitation of the facts can be found in our prior nonpublished opinion, People v. Rodriguez (May 18, 2011, G041444) (Rodriguez).
Suffice it to say, Lopez was with three men who engaged in a gang hit up that resulted in the murder of Michael Faria. Lopez was not the gunman; Julian Mendez was. Jessica Salazar, Faria's friend, witnessed his murder. Because Salazar knew one of Mendez's companions, Joe Rodriguez, Salazar got into the vehicle with the four men and Samuel Redmond drove away. Redmond got on the freeway and drove for about 25 minutes until he stopped for gas. While Lopez pumped gas, Mendez, Rodriguez, and Redmond went to the restroom. Mendez told them, "'She's gotta die.'" (Rodriguez, supra, G041444.)
Redmond drove another 20 to 30 minutes to a deserted hilly area. When one of the men said he needed to relieve himself, Redmond stopped. The four men met at the back of the vehicle. Mendez repeated his earlier edict and told Rodriguez to shoot Salazar. He refused. Mendez told Rodriguez to force her out of the vehicle. Rodriguez went to one side of the vehicle, and Lopez the other. Rodriguez dragged Salazar out of the vehicle. Salazar tripped, fell to the ground, held her hands up, and pleaded for her life. Mendez shot her. The men left, and Salazar died. (Rodriguez, supra, G041444.)
At trial, there was evidence from which the jury could reasonably infer (1) Lopez pushed Salazar out of the car, or (2) Lopez got in the vehicle thus blocking Salazar's escape. (Rodriguez, supra, G041444.)
At the first trial, as relevant here, the jury acquitted Lopez of Faria's murder and could not reach a verdict concerning his role in Salazar's death. The jury convicted Rodriguez of premeditated first degree murder of Salazar and found true the special circumstance he killed her to prevent her testimony because she witnessed Faria's murder. The jury could not reach a verdict concerning Rodriguez's participation in Faria's killing.
At a joint trial, a separate jury convicted Mendez of the two murders with special circumstances and sentenced him to death. Our Supreme Court affirmed. (People v. Mendez (2019) 7 Cal.5th 680, 684.)
At a second trial, as relevant here, the trial court instructed the jury on murder with malice aforethought and felony murder (CALCRIM Nos. 548, 520, 521, 540B). As to the felony murder, the court instructed the jury with CALCRIM No. 540B, which required the jury to find whether Lopez intended to commit, intended to aid and abet, or intended to conspire with others to kidnap Salazar.
The jury convicted Lopez of premeditated first degree murder of Salazar and found true the special circumstance he killed her to prevent her testimony because she witnessed Faria's murder. The jury convicted Rodriguez of premeditated first degree murder. The trial court sentenced Lopez to prison for life without the possibility of parole. We affirmed Lopez's murder conviction. (Rodriguez, supra, G041444.)
In 2021, Lopez in propria persona filed a petition for resentencing pursuant to section 1172.6, although he did not check all the required boxes and did not request appointment of counsel. The trial court appointed counsel. Lopez's counsel filed a brief requesting the court issue an order to show cause.
At the hearing, the prosecutor noted Lopez did not check all the required boxes on the petition but counsel filed a prima facie brief. He stated the jury instructions, specifically CALJIC Nos. 8.80.1 and 8.81.10, which were in imaging, required an intent to kill. He added the verdict forms, which were also in imaging, demonstrated the jury concluded Lopez had an intent to kill. Lopez's counsel stated it was disputed whether Lopez was a major participant in Salazar's murder and requested an evidentiary hearing. The court denied the petition, reasoning the jury found true the murder of a witness special circumstance and thus found Lopez had an intent to kill.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 2, 3) (SB 1437) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder, and to limit the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) Under sections 188 and 189, as amended, murder liability can no longer be imposed on a person who was not the actual killer, who did not act with the intent to kill, or who was not a major participant in the underlying felony who acted with reckless indifference to human life. (Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1172.6 which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing relief. (Stats. 2018, ch. 1015, § 4.)
A section 1172.6 petition is required to include: "(A) A declaration by the petitioner that the petitioner is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [And] [¶] (C) [w]hether the petitioner requests the appointment of counsel." (§ 1172.6, subd. (b)(1).) The statute requires the trial court appoint counsel upon the filing of a facially sufficient petition. (Lewis, supra, 11 Cal.5th at p. 970.) "[T]hen the court proceeds to [section 1172.6,] subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. [Citation.]" (Id. at p. 960.)
Although the trial court may not engage in judicial factfinding or make credibility decisions prior to issuing an order to show cause, under Lewis, supra, 11 Cal.5th at page 971, "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." The Lewis court also held a trial court's failure to appoint counsel to represent a petitioner when assessing whether he has made a prima facie showing of entitlement to relief is state law error reviewable for prejudice under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973-974.) Specifically, "a petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing."' [Citation.]" (Id. at p. 974.)
Citing to the prosecutor's reference to CALJIC instructions and that the instructions were in imaging, Lopez argues the trial court failed to conduct a proper review of the record. To the extent the court failed to review the record, any error was harmless even under the more stringent beyond any reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.)
The jury convicted Lopez of willful, deliberate, and premediated first degree murder. With respect to the murder of a witness special circumstance, the trial court instructed the jury with CALCRIM No. 702. That instruction stated that if the jury concluded Lopez was guilty of first degree murder and not the actual killer, it had to decide whether Lopez acted with the intent to kill when considering the murder of a witness special circumstance. The instruction provided as follows: "In order to prove this special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the [prosecution] must prove that the defendant acted with the intent to kill. [¶] If the defendant Lopez was not the actual killer of . . . Salazar, then the [prosecution has] the burden of proving beyond a reasonable doubt that he acted with the intent to kill for the special circumstance of murder of a witness to be true. If the [prosecution has] not met this burden, you must find this special circumstance has not been proved true." The jury found this true as to Lopez and thus necessarily concluded Lopez had the intent to kill Salazar.
The jury's verdicts refute Lopez's claim it may have convicted him of murder based on the uncharged conspiracy amounting to the natural and probable consequences theory. Finally, because Lopez was ineligible for relief as a matter of law, he was not entitled to an order to show cause hearing to present new evidence. (§ 1172.6, subd. (c).)
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.