People v. Lopez CA3

Filed 6/7/24 P. v. Lopez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, C099099

Plaintiff and Respondent, (Super. Ct. No. 07F01601)

v.

JORGE LOPEZ,

Defendant and Appellant.

Defendant Jorge Lopez appeals from the denial of his petition for resentencing under Penal Code section 1172.6 (formerly section 1170.95) following an evidentiary hearing.1 He argues the resentencing court erred in refusing to qualify his proposed expert, and in excluding the proposed expert from testifying about general criminal behavior and gangs in general. He also argues the resentencing court improperly

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the

Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we will refer to section 1172.6 throughout this opinion.

1

considered evidence outside of an agreed-upon statement of facts, and erroneously relied on testimony discredited by the original trial court’s firearm enhancement findings. We need not reach any of these issues, as they are all rendered moot by defendant’s petition for habeas corpus, which we will grant in a separate opinion. (In re Lopez (June 7, 2024, C099854) [nonpub.].) I. BACKGROUND A jury found defendant guilty of first degree murder in 20082 (§ 187, subd. (a)). (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 victim. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d), and (e)(1).) (Lopez II, supra, C091477.) At the sentencing hearing, the trial court stayed imposition of the gang enhancement pursuant to section 12022.53, subdivision (e)(2), and declined to impose the firearm enhancements provided by section 12022.53, subdivisions (b) and (c) pursuant to subdivision (f), stating, “defendant did not personally use or discharge a firearm during the commission of this crime.”3 The trial court then sentenced defendant to 25 years to