In re Lopez CA3

Filed 6/7/24 In re Lopez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

In re JORGE LOPEZ on Habeas Corpus. C099854

(Super. Ct. No. 07F01601)

A jury found petitioner Jorge Lopez guilty of first degree murder in 2008 (Pen. Code, §§ 187, subd. (a)).1 (People v. Lopez (Feb. 11, 2010, C059074) [nonpub. opn.] (Lopez I); People v. Lopez (Sep. 24, 2021, C091477) [nonpub. opn.] (Lopez II).) The jury also found true gang and firearm enhancements, including that defendant was a principal in the murder, and a principal intentionally and personally discharged a firearm causing great bodily injury or death to a victim2 (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d), and (e)(1)). (Lopez II, supra, C091477.) The trial court sentenced petitioner to

1 Undesignated statutory references are to the Penal Code.

2 A separate jury found codefendant Luis Fernando Pacheco guilty of the same first degree murder and enhancements. (Lopez I, supra, C059074.) Another jury heard the evidence against codefendant Luis Garcia; however, a mistrial was declared in that case due to juror misconduct.

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25 years to life for the murder conviction, plus 25 years to life for one of the firearm enhancements. (Lopez II, supra, C091477.) Another panel of this court affirmed the conviction. (Lopez I, supra, C059074.) Petitioner filed a petition for resentencing under former section 1170.95 (now section 1172.6) in 2019. (Lopez II, supra, C091477.) The trial court denied the petition at the prima facie stage, and yet another panel of this court reversed. (Ibid.) Petitioner then filed a second petition for resentencing, which was denied after an evidentiary hearing. Petitioner has appealed from the denial of the second resentencing petition in People v. Lopez, case No. C099099. Petitioner has also filed the instant petition for habeas corpus, in which he challenges the first-degree murder conviction in light of the California Supreme Court’s opinion in People v. Chiu (2014) 59 Cal.4th 155 (Chiu). The People agree—as do we— that the petition should be granted. We therefore issue the writ of habeas corpus, vacate petitioner’s conviction for first degree murder, and remand with instructions to the trial court to permit the prosecution to either retry petitioner on a first-degree murder charge or accept a reduction of the conviction to second degree murder. Because we grant the habeas petition, we will dismiss petitioner’s appeal from the denial of his resentencing petition in People v. Lopez, case No. C099099 as moot by separate opinion. I. BACKGROUND A. Evidence at Trial3 Jose, a member of the Howe Park Surenos, was driving through North Sacramento on the evening of February 5, 2007. He stopped at a traffic signal, and three young men on bicycles approached his car. One of the men produced a gun and began firing. Jose