People v. Ruiz-Lopez CA5

Filed 2/16/23 P. v. Ruiz-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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084207 Plaintiff and Respondent, (Super. Ct. No. 16CR-04656) v.

GERARDO OSCAR RUIZ-LOPEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. (Retired Judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Meehan, J. and Snauffer, J.

Appellant Gerardo Oscar Ruiz-Lopez’s second appeal is pending before us, following a remand in Ruiz-Lopez I pursuant to the California Supreme Court’s then- recent decision in People v. Frahs (2020) 9 Cal.5th 618, 624–625 (Frahs), which held that Penal Code section 1001.361 is retroactive.2 Appellant’s counsel asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Appellant was advised of the right to file a supplemental brief, but he did not file a response. We find no reasonably arguable factual or legal issues, and we affirm the judgment. PROCEDURAL SUMMARY After appellant repeatedly texted and called his ex-girlfriend throughout the day, appellant called and told her that he and their young daughter were dead. Appellant’s ex- girlfriend called police. Appellant and his daughter, who was alive but unresponsive, were located in a bedroom closet with two leaking propane tanks. Appellant pleaded not guilty and not guilty by reason of insanity. During the guilt phase of the bifurcated trial, the jury convicted appellant of attempted premeditated murder (§§ 664/187/189; count 1), and child abuse likely to produce great bodily harm or death (§ 273a, subd. (a); count 2).3 During the second trial phase, the jury found that appellant was legally sane at the time he committed the crimes. (§ 1026, subd. (a).) The trial court imposed a sentence of life with the possibility of parole for attempted

1 All further statutory references are to the Penal Code. 2 We take judicial notice of our prior nonpublished opinion and the record in People v. Ruiz-Lopez (Sept. 25, 2020, F077922) (Ruiz-Lopez I). (Evid. Code, §§ 452, subd. (d), 459.) 3 The jury found the sentence enhancement allegations for personal infliction of great bodily injury on a child under the age of five years, attached to counts 1 and 2, not true. (§ 12022.7, subd. (d).)