People v. Lopez CA2/3

Filed 5/25/22 P. v. Lopez CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B316490

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA057914) v.

ROBERT LOPEZ, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Joseph R. Porras, Judge. Dismissed. Marilee Marshall, under appointment for the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

Robert Lopez, Jr., appeals from the denial of his petition for resentencing under Penal Code1 section 1170.95. Lopez’s appointed counsel filed a brief asking this court to proceed under People v. Serrano (2012) 211 Cal.App.4th 496. A jury convicted Lopez of second degree murder with a true finding that Lopez personally used a knife during the commission of the crime. At trial, Lopez did not dispute that he stabbed and killed the victim in an altercation over a bicycle. Lopez testified in his own defense, stating that his bicycle had been stolen, and two days later, he saw the victim riding his stolen bicycle. Lopez admitted that he took a knife and ran toward the victim, after which the two began to fight. Witnesses saw Lopez grab the victim and stab him in the neck. Lopez testified he accidentally stabbed the victim. Lopez was sentenced to 15 years to life, plus one year for the weapon enhancement. The trial court did not instruct on felony murder or natural and probable consequences. A different panel of this division affirmed the judgment in People v. Lopez (Oct. 2, 2002, B148880) [nonpub. opn.], finding sufficient evidence of implied malice to support Lopez’s second degree murder conviction. Thereafter, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) became effective, which amended sections 188 and 189, to narrow the scope of aider and abettor liability for murder, and added a petitioning procedure under section 1170.95. (Stats. 2018, ch. 1015, §§ 1–4.) Second degree implied malice murder was not eliminated by Senate Bill 1437, which “removed the natural and probable consequences doctrine as a basis for a murder conviction only insofar as it applied to