People v. Lopez CA5

California Court of Appeal Oct 5, 2020 No. F077946Unpublished

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Holding. The court held that defense counsel did not provide ineffective assistance at the resentencing hearing because the defendant failed to demonstrate deficient performance or prejudice, and that Senate Bill No. 136 applies retroactively to eliminate the defendant's one-year prior prison enhancement.

Issues

Whether defense counsel rendered ineffective assistance of counsel at the resentencing hearing by failing to argue for the striking of firearm enhancements.
Whether Senate Bill No. 136 applies retroactively to the defendant's sentence.

Disposition. Affirmed in part; remanded for correction of judgment.

Quotations verified verbatim against the opinion

“The record sheds no light on whether defense counsel researched the facts or, alternatively, why he chose not to present an argument after researching the facts.”

“We cannot blame defense counsel for failing to present baseless and speculative arguments.”

“Because SB 136 became effective before [Lopez’s] judgment became final, we agree with the parties that the amended law applies to him retroactively.”

Filed 10/5/20 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F077946 Plaintiff and Respondent, (Super. Ct. No. CF99640276) v.

DANIEL SAPIEN LOPEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P.J., Smith, J. and Snauffer, J.

In 2000, Daniel Sapien Lopez was sentenced to serve 201 years and eight months to life in prison for committing several crimes including six separate third strike offenses. The sentence included 30 years for three separate firearm enhancements (Pen. Code,1 § 12022.53, subd. (b)) and one year for a prison prior enhancement (§ 667.5, subd. (b)). After a series of appeals, his sentence was reduced to 199 years and eight months to life in prison by virtue of an unpublished opinion filed in this court in 2004. (People v. Lopez (Cal. Ct. App., Jan. 14, 2004, No. F036242) 2004 WL 61128 (Lopez).) After several attempts, Lopez successfully petitioned the Superior Court in 2018 for resentencing pursuant to section 1170.18.2 He simultaneously sought relief from the firearm enhancements pursuant to then newly enacted Senate Bill No. 620 (Reg. Sess. 2017-2018, § 1), which gave trial courts the discretion to strike these enhancements. The Superior Court granted Lopez relief under section 1170.18. At the resentencing hearing, Lopez’s counsel chose not to present any argument relating to the firearm enhancements. Instead, defense counsel informed the court, “My position is Mr. Lopez would like to speak on his own behalf.” Lopez could not persuade the court. He was subsequently resentenced to serve 197 years to life in prison. This appeal followed, in which he argues defense counsel was ineffective at the resentencing hearing by failing to research and present a colorable argument to strike the firearm enhancements. Following the initial briefing in this case, Lopez filed a supplemental brief arguing for relief pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess., § 1, SB 136). If applicable, SB 136 would eliminate the one-year prior prison enhancement in this case.

People v. Lopez CA5

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