People v. Lopez CA5

Filed 2/7/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F086154 Plaintiff and Respondent, (Super. Ct. No. CF84313768) v.

RAFAEL LOPEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge. Marcia R. Clark, 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, Christopher J. Rench and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.

INTRODUCTION Petitioner Rafael Lopez petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for second degree murder. The superior court denied the petition at the prima facie stage. On appeal, petitioner argues the superior court erred in denying his petition at the prima facie stage. The People concede error. We reverse. PROCEDURAL HISTORY2 In an information filed June 27, 1984, petitioner was charged with murder (§ 187; count one), robbery (§ 211; count two), and kidnapping (§ 207, subd. (a); count three). As to count one, it was alleged petitioner used a deadly weapon, to wit a wooden board or stick, in the commission of the offense (§ 12022, subd. (b)). Additionally, the information alleged the murder was committed during the course of a robbery and kidnapping (§ 190.2, subd. (a)(17)). On January 8, 1985, petitioner pled guilty to second degree murder and admitted the allegation that he had committed the offense with a wooden board or stick. The remaining counts and allegations were dismissed. Petitioner was thereafter sentenced to a term of 16 years to life. On June 18, 2021, petitioner filed a handwritten petition for resentencing pursuant to section 1172.6. On April 13, 2022, the court denied the petition without prejudice on procedural grounds because it did not contain a declaration signed under penalty of perjury as required under section 1172.6; even if construed as a declaration, the petition