People v. Lopez CA5

Filed 11/19/24 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F086961 Plaintiff and Respondent, (Super. Ct. No. VCF325028TT) v.

PEDRO LOPEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Nathan G. Leedy, Judge.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- This appeal follows the partial reversal of a judgment against Pedro Lopez (defendant) by the California Supreme Court in People v. Lopez (2022) 12 Cal.5th 957,

*Before Peña, Acting P. J., Smith, J. and De Santos, J.

and by this court in People v. Lopez (2022) 82 Cal.App.5th 1. Defendant now asserts a claim of postremand sentencing error, which is appropriately conceded by the People. The judgment will be modified accordingly. DISCUSSION The facts underlying defendant’s convictions are detailed in People v. Lopez, supra, 82 Cal.App.5th at pages 7 through 10. We incorporate the summary by reference, but it is not relevant to the issues in this appeal. A “traditional statement of facts” is therefore unnecessary. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.) Defendant’s case was severed from a larger prosecution of dozens of people. He was charged with conspiracy to commit “home invasion robbery” (Pen. Code, §§ 182, subd. (a)(1), 211, 213, subd. (a)(1)(A); counts 19 & 162); participation in a “criminal street gang conspiracy” to commit the same target offense (§ 182.5; count 20); possession of a firearm by a convicted felon (§ 29800, subd. (a)(1); count 156); unlawful possession of ammunition (§ 30305, subd. (a)(1); count 160); and “attempted home invasion robbery” (§§ 664, 211, 213, subd. (a)(1)(A); count 163). (Capitalization omitted.) Each offense was alleged to be gang related under a former version of section 186.22, subdivision (b). Counts 19, 20, and 162 were alleged to be punishable by an indeterminate life term under Penal Code section 186.22, subdivision (b)(4). Defendant was further alleged to have suffered a prior strike and prior serious felony conviction (§§ 667, subds. (a)(1), (b)–(i), 1170.12). A firearm enhancement was pleaded pursuant to section 12022.53, but the People did not submit the allegation to the jury. Defendant was convicted as charged (except for the firearm enhancement) and sentenced to 35 years to life in prison plus a consecutive determinate term of 19 years. At the original sentencing hearing, the prosecutor informed the trial court that the Penal Code section 12022.53 enhancement “was not sought” and “should be stricken.” The