People v. Lopez CA1/4

Filed 3/21/23 P. v. Lopez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A164096 v. (Sonoma County Super. Ct. JOSEPH KENNETH LOPEZ, JR., SCR5387451) Defendant and Appellant.

MEMORANDUM OPINION1 I. Appellant was convicted by a jury of second degree murder, active participation in a criminal street gang, and unlawful possession of a semiautomatic firearm. The jury rendered true findings for firearms enhancements under Penal Code2 section 12022.53, subdivisions (b), (c), and (d), in connection with the murder conviction. The trial court imposed an aggregate sentence of a few months short of 44-years-to-life, composed of a 15-years-to-life term for the count 1 murder conviction; plus a consecutive 25-years-to-life term for the section 12022.53, subdivision (d) firearm enhancement; plus a consecutive determinate three-year upper term for the count 2 participation in a criminal street gang conviction; plus a consecutive

We resolve this case by a memorandum opinion pursuant to the 1

California Standards of Judicial Administration, section 8.1. 2 Undesignated statutory references are to the Penal Code.

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determinate eight-month term for the count 3 unlawful possession of a semiautomatic firearm conviction. It stayed sentence on the other enhancements. In a prior appeal, we affirmed the convictions but remanded for resentencing in light of the intervening enactment of Senate Bill No. 620 (2017–2018 Reg. Sess.) “to consider whether to strike some or all of the firearm enhancements imposed under section 12022.53.” (People v. Lopez (Dec. 12, 2018, A129664) [nonpub. opn.] [2018 Cal.App.Unpub.LEXIS 8400].) Rather than restate the factual and procedural background, we will assume familiarity with our prior opinion. In the resentencing proceeding on remand, the trial court declined to strike any of the enhancements. In this appeal, appellant argues that we should remand again because, even though the court refused to strike any of the enhancements, its silence on his alternative request for reduction of the enhancements indicates it was unaware it had the discretion to order such reductions. We are unpersuaded and will affirm. II. At the resentencing on remand, the trial court denied all relief. The court explained it was “wholly unpersuaded that the factors argued by the defense constitute[d] a basis . . . to exercise its discretion when considered against the overwhelming backdrop of factors to the contrary.” “The characterization of [appellant’s] conduct as mitigated and due to circumstances beyond his control [was] belied by the tonnage of information indicating otherwise.” “The conclusory leap made by the defense in the pleadings that . . . ‘if Joseph had been a little older and his brain had been more mature, this incident would never have happened,’ [was] pure speculation, completely without foundation, and directly contradicted by everything else known about [appellant] and the night in question.”