People v. Lopez CA4/1

Filed 8/6/21 P. v. Lopez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078176

Plaintiff and Respondent,

v. (Super. Ct. No. SCS250943)

MARIO ARMANDO LOPEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court San Diego County, Francis M. Devaney, Judge. Reversed and remanded with directions. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent. In this case, Mario Lopez and four other inmates of the County jail savagely beat and tortured an elderly inmate to death. The inmate’s offense: he was a convicted child molester.

In late 2013, a jury convicted Lopez of first degree murder (Pen. Code,1 § 187, subd. (a)). He was also convicted of torture (§ 206). In 2014, Lopez was sentenced to an indeterminate term of 28 years to life in prison. Lopez appealed and this court affirmed the judgment in an unpublished opinion, People v. Lopez (Jan. 28, 2016, D065801). In 2019, Lopez filed a pro. per. petition for resentencing under section 1170.95. Lopez claimed he was convicted on a felony murder theory or a theory of natural and probable consequences and that he could not be convicted under current law. After receiving briefing and reviewing the record of conviction, as well as this court’s opinion in the original appeal, the trial court denied the petition by written order finding the evidence demonstrated Lopez was the actual killer. Lopez filed a timely notice of appeal. In his written order the trial judge stated: “On November 6, 2013, after a lengthy trial, the jury found Petitioner Mario Lopez guilty of the crime of murder, in violation of Penal Code section 187(a), and further found the murder was Murder in the First Degree, not guilty of conspiracy to commit murder, and guilty of the crime of torture, in violation of Penal Code section 206. Petitioner subsequently admitted to three prior prison allegations, and on March 14, 2013, was sentenced to 28 years to life in state prison. On January 29, 2019, Petitioner filed the instant Petition for Resentencing per Penal Code section 1170.95, contending that he ‘could not now be convicted of 1st and 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.’