People v. Lopez CA5

Filed 6/29/23 P. v. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084487 Plaintiff and Respondent, (Super. Ct. No. LF010149A) v.

ROBERTO GARCIA LOPEZ, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Appellant Roberto Garcia Lopez appeals his present judgment and sentence, imposed following a resentencing hearing ordered in a prior appeal. Appellant’s case has been proceeding through the appellate process for several years. In a prior appeal, this court generally upheld appellant’s convictions under the then-existing law but remanded the matter to the trial court to exercise its discretion under then recently enacted Senate

Bill No. 620 (2017–2018 Reg. Sess.). (People v. Lopez (Jan. 31, 2020, F074412) [nonpub. opn.].) Since that time, many additional changes to the law have occurred. In this appeal, appellant again asks us to remand the matter to the trial court based on these additional changes to the law, noting that the trial court felt it could not consider these issues given the specific nature of the remittitur following the prior appeal. Notably, the People concede that all of the issues raised by appellant are related to newly enacted laws that are retroactive and applicable to appellant. Upon review, we agree with appellant and the People and remand the matter to the trial court for further proceedings warranted under recent changes to the law. FACTUAL AND PROCEDURAL BACKGROUND The underlying facts relating to the crime are neither contested by the parties for the purpose of this appeal nor particularly relevant to the arguments, aside from some references to the scope of the expert testimony provided in support of the gang aspects of the case. This court previously recounted the facts of the case in detail in People v. Lopez, supra, F074412, and the parties generally adopt those facts in their briefing. Accordingly, we incorporate by reference the factual and procedural background section from our opinion in People v. Lopez as if fully set forth herein and note that any additional relevant facts will be included as part of the discussion if necessary to the resolution of this appeal. Following our opinion in People v. Lopez, supra, F074412, appellant sought review with our Supreme Court but was denied. Accordingly, the remittitur was issued on June 17, 2020. At that point, our disposition instructed the trial court “to determine whether to exercise its discretion pursuant to [Penal Code] section 12022.5, subdivision (c)” to dismiss certain sentencing enhancements previously imposed and resentence appellant. After several continuances and status conferences, appellant filed a brief in April 2022, seeking to set aside his gang enhancements under former Penal Code