People v. Lopez CA1/5

Filed 1/31/25 P. v. Lopez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A166557

v. (Lake County ORLANDO JOSEPH LOPEZ, JR., Super. Ct. No. CR927102) Defendant and Appellant.

Defendant and appellant Orlando Joseph Lopez, Jr. (appellant), appeals following the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.6.1 Among other things, he contends the trial court erred in denying his petition for resentencing without first appointing counsel. Respondent agrees the court prejudicially erred, and we reverse. BACKGROUND In June 2012, appellant was convicted by a jury of first degree murder (§ 187, subd. (a)); six counts of assault with a firearm (§ 245, subd. (a)(2)); five counts of attempted murder (§§ 187, subd. (a), 664); two counts of mayhem

1 All undesignated statutory references are to the Penal Code.

Appellant filed his petition under section 1170.95, which was subsequently renumbered section 1172.6. (Stats. 2022, ch. 58, § 10.)

1

(§ 203); and discharging a firearm at an inhabited dwelling (§ 246). The jury also found true firearm and great bodily injury allegations. In February 2016, this court reversed appellant’s first degree murder conviction and remanded the case for the prosecution “to retry that charge or to accept a reduction of the conviction to second degree murder.” (People v. Lopez (Feb. 17, 2016, A136253) [nonpub. opn.].) This court also ordered the sentences for mayhem stayed pursuant to section 654. (Ibid.) In December, the trial court resentenced appellant to an indeterminate term of 225 years to life consecutive to a determinate term of 22 years. On August 26, 2022, appellant petitioned for resentencing under former section 1170.95, and requested appointment of counsel. On August 31, the trial court denied the petition. The present appeal followed. DISCUSSION “Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.)] ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) “In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437 added [former] section 1170.95 [now section 1172.6], which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (Lewis, at p. 959.) To obtain relief under section 1172.6, a petitioner must file a petition in the sentencing court averring that: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to