People v. Lopez CA4/1

Filed 8/7/23 P. v. Lopez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081618

Plaintiff and Respondent,

v. (Super. Ct. No. FSB804305)

CARLOS LOPEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Harold T. Wilson, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Carlos Lopez shot Bobby B. twice in the back, killing him, and shot Byron G. in his arm and back. In 2014, a jury convicted him of first degree murder (Pen. Code,1 § 187, subd. (a); count 1) and attempted murder (§§ 664, 187, subd. (a); count 2). The jury also found true allegations that Lopez personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53,

1 Undesignated statutory references are to the Penal Code.

subds. (c), (d)), and that he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court sentenced Lopez to a total indeterminate sentence of 90 years to life. This court affirmed the convictions, but remanded the matter to the trial court to resolve a discovery issue. (People v. Lopez, (March 30, 2016, D069279) [nonpub. opn.].) We later affirmed the trial court’s ruling that there was no discovery violation and affirmed the judgment of the superior court. (People v. Lopez, (Dec. 7, 2017, D072508) [nonpub. opn.].) In 2022, Lopez petitioned for resentencing under section 1172.6 (former section 1170.95). His supporting declaration consisted of a preprinted form where he checked boxes that stated (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019. The trial court held a hearing where Lopez’s counsel requested the court make a prima facie finding on the petition. The court denied the petition based on Lopez’s failure to make a prima facie case for relief. (§ 1172.6, subd. (c).) It noted that it had reviewed the record of conviction and did not engage in fact finding, weighing evidence, or determining credibility. After examining the record of conviction, the court found: