People v. Lopez CA2/4

Filed 9/14/21 P. v. Lopez CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B307654

Plaintiff and Respondent, (Los Angeles County Super. Ct. No.TA145893) v.

JIMMY LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Shultz, Judge. Affirmed. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan, Assistant Attorney General, Amanda Lopez and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

On May 23, 2018, the People filed an information charging appellant Jimmy Lopez and two codefendants with murder. (Pen. Code, § 187, subd. (a).1) The information further alleged that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a principal used a firearm in the commission of the offense (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c), (d), (e)(1).) Pursuant to a plea offer, in July 2018 appellant pled no contest to voluntary manslaughter (§ 192, subd. (a)) and admitted the firearm allegation under section 12022, subdivision (a)(1). He was sentenced to 12 years in prison. In April 2020, appellant filed a petition for resentencing under section 1170.95. On the form petition, he checked the box stating, “I pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine.” The trial court summarily denied the petition, stating that appellant was not entitled to relief as a matter of law because he had been convicted of voluntary manslaughter, not murder. Appellant timely appealed. DISCUSSION Under section 1170.95, subdivision (a), “A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition . . . to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: