People v. Lopez CA4/3

Filed 10/9/20 P. v. Lopez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058453

v. (Super. Ct. No. FWV903084)

NOLAN LOPEZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of San Bernardino County, Stephan G. Saleson, Judge. Request for judicial notice. Denied. Reversed and remanded. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amicus Curiae in support of Defendant and Appellant. Jason Anderson, District Attorney, and James R. Secord, Deputy District Attorney, for Plaintiff and Respondent. * * *

In 2012, a jury found Nolan Lopez guilty of second degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code) and several related charges. In an unpublished opinion, this court modified the judgment to strike two convictions for lesser included offenses and to impose a stay under section 654 on the related charges, but otherwise affirmed. (People v. Rodriguez et al. (Aug. 1, 2014, G049804) [nonpub. opn.].) In 2018, the Legislature enacted Senate Bill No. 1437 (Sen. Bill 1437), which limited accomplice liability under the felony murder rule and the natural and probable consequences doctrine by amending sections 188 and 189. (§§ 188, 189; see People v. Cruz (2020) 46 Cal.App.5th 740, 755 (Cruz); People v. Solis (2020) 46 Cal.App.5th 762, 768 (Solis).) Sen. Bill 1437 also implemented a process allowing persons previously convicted of murder under a natural and probable consequences theory or felony murder rule to petition the superior court for vacation of their murder convictions and for resentencing, if they could not be convicted of murder now based on the amendments to sections 188 and 189. (§ 1170.95.) On April 29, 2019, Lopez filed a petition for resentencing under section 1170.95. The petition alleged he was convicted of second degree murder under a theory of felony murder or murder under the natural and probable consequences doctrine, and that under Sen. Bill 1437 he could not now be convicted of murder. The trial court denied the petition on the sole basis that Sen. Bill 1437 was unconstitutional because it violates the rights of victims to see a final judgment imposed on the perpetrators of crimes against them pursuant to Proposition 9, also known as “Marsy’s Law.” As discussed below, we conclude Sen. Bill 1437 is not contrary to Marsy’s Law because Marsy’s law does not preclude new postconviction resentencing procedures, such as the resentencing provisions of Sen. Bill 1437. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 264-265 (Lamoureux).)