People v. Lopez CA5

Filed 10/20/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084905 Plaintiff and Respondent, (Super. Ct. No. 1050255) v.

ANDREW RICK LOPEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.

Kendall Dawson Wasley, 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, Louis M. Vasquez, Kari Ricci Mueller, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

INTRODUCTION Defendant Andrew Rick Lopez was sentenced to 15 years-to-life imprisonment after being convicted of second degree murder (Pen. Code § 187, subd. (a)) in 1992, plus one year for a knife use enhancement (§ 12022, subd. (b)) and one year for a prison prior enhancement (§ 667.5). (Undesignated statutory references are to the Penal Code.) In 2022, defendant’s attorney petitioned to recall his sentence under section 1172.75 to strike his one-year prison prior enhancement. The People agreed with the petition and the court granted the request and ordered defendant’s sentence be modified accordingly. In this appeal, defendant argues he was unconstitutionally deprived of his right to be present at the resentencing hearing. The People agree. We agree the order should be vacated and conclude the matter must be remanded for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY In 1992, a jury convicted defendant of second degree murder (§ 187, subd. (a)) and found true that he personally used a knife during the commission of the offense (§ 12022, subd. (b).) Defendant admitted a prior conviction allegation. The court sentenced defendant to 15 years to life on the murder conviction plus one year for the knife-use enhancement and an additional year for the prison prior (§ 667.5, former subd. (b)). Defendant’s attorney petitioned for resentencing for him under section 1172.75 in July 2022 using a form petition. She checked a box indicating “Defendant/Petitioner waives resentencing hearing” and asked the court to modify the total term of 17 years to life to 16 years to life by striking the section 667.5, former subdivision (b) prison prior enhancement. On the same form, the People indicated they agreed with the petition and to waive a hearing. Also on the same form, the court ordered “defendant’s sentence recalled and resentenced pursuant to … § 1172.7 and/or 1172.75.”