People v. Lopez CA6

Filed 3/5/24 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050242 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1119504)

v.

FERNANDO MATEO LOPEZ,

Defendant and Appellant.

This matter is one of two pending appeals from defendant Fernando Mateo Lopez, who was convicted in 2016 of second degree murder, multiple counts of attempted murder, and multiple counts of shooting at an inhabited dwelling. All counts related to a single drive-by shooting. He petitioned for resentencing under former Penal Code section 1170.95 (now Penal Code section 1172.6). The trial court denied the petition without an evidentiary hearing because it concluded defendant was ineligible for relief under that statute as a matter of law.1 Defendant argues on appeal that the trial court should have issued an order to show cause because an ambiguity in the jury instructions at defendant’s trial created the possibility that the jury found him guilty of murder and attempted murder by imputing malice to him based solely on his participation in a crime. The trial court correctly

In defendant’s other appeal (case No. H050372), which we dispose of by 1

separate opinion, defendant challenges the jury’s true findings on gang and firearm allegations under Penal Code section 186.22 based on statutory changes in Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3) that apply retroactively.

concluded defendant is ineligible for relief as a matter of law for his attempted murder convictions. But we will reverse the judgment and remand the matter for an evidentiary hearing about defendant’s second degree murder conviction because he demonstrated prima facie eligibility for relief. I. TRIAL COURT PROCEEDINGS Our court’s 2020 opinion in defendant’s direct appeal accurately summarized the background and charges in the case: “Defendant and four companions drove by a group of teenagers gathered in front of an apartment complex. They fired into the group, killing a 14-year-old girl and injuring three other teens. After a preliminary hearing, defendant and Ricardo Salvador Diaz were charged by information with: one count of special circumstances murder (Pen. Code, §§ 187, 190.2, subd. (a)(21)–(22); count 1); five counts of attempted murder with premeditation (Pen. Code, §§ 187, 189, 664, subd. (a); counts 2 – 6); and three counts of shooting at an inhabited dwelling (Pen. Code, § 246; counts 7 – 9). All counts were alleged to have been committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(4), (5)), and during which a principal intentionally used a firearm (an SKS assault rifle) to inflict great bodily injury or death on a person other than an accomplice (Pen. Code, § 12022.53, subds. (d), (e)(1)).” (People v. Lopez (June 17, 2020, H043949) [nonpub. opn.].)2 Relevant to defendant’s arguments in this appeal, the jury was instructed on aiding and abetting liability with CALCRIM No. 400: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.” The jury was also instructed with CALCRIM No. 401: “To prove that a defendant is guilty of a crime based on aiding and