Opinion
E068475
11-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO LOPEZ, Defendant and Appellant.
Frank J. Torrano, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1209170) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Frank J. Torrano, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant filed a petition for resentencing or dismissal pursuant to Health and Safety Code section 11361.8, which the court denied.
After defendant filed a notice of appeal, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying four potentially arguable issues: (1) whether the trial court retained discretion to grant defendant relief pursuant to Health and Safety Code section 11361.8 despite defendant's conviction for murder; (2) whether the court erred in denying defendant's petition where the record did not establish, by nonhearsay evidence, that defendant had cultivated more than six living cannabis plants; (3) whether the People's opposition overcame the presumption that defendant did not cultivate more than six living cannabis plants; and (4) whether the court erred in denying the petition without holding a hearing. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
We take judicial notice of the record of defendant's appeal from his original conviction, case No. E062323. (Evid. Code, § 459.) --------
The victim and her boyfriend lived together. In September 2012, after they broke up, she moved out and began staying with defendant, whom she had met through her now ex-boyfriend. The victim's ex-boyfriend thought that the victim was going to leave defendant and move back in with him. The two planned to meet the next day but the victim never showed and did not respond to her ex-boyfriend's text messages.
On October 27, 2012, the victim's mother and ex-boyfriend went to defendant's house to look for her. On the same day, the Riverside County Fire Department responded to a call regarding a hazardous material spill. When firefighters arrived at the scene, there were two camper trailers in the front yard, one of which defendant had been renting, and a big pool of petroleum oil on the street. Smoke was billowing up from the backyard, where a fire was burning. When firefighters entered the backyard, they saw it was filled with several hundred potted marijuana plants. A barrel contained burned debris and electrical wires. The grass around the barrel was scorched and the fire had moved into the neighbor's yard. Firefighters found two canisters of lighter fluid with footprints around them. Investigators determined the fire had been intentionally set.
When the police responded to the scene, they heard loud music coming from the open door of the camper trailer in front of the house. Defendant was sleeping inside but he awoke and became confrontational, yelling "get the fuck off [my] property." Defendant tried to fight the police as they handcuffed and detained him. When an officer performed a safety sweep of the home, he found a 1911 Kimber pistol and a STEN machine gun. Inside the house, there was blood in the hallway, blood in the bathtub, and a pool of blood on the floor. The living room had been converted into a marijuana grow operation. Defendant also had an extraction lab in his residence for the extraction of hash oil or honey oil from the dried marijuana. Around $20,000 in cash in a bag belonging to defendant was found on one of defendant's neighbor's property.
The victim's mother arrived at the scene, crying and frantic. She told the police her daughter was missing and she had last seen her on October 23, 2012, when she looked like she had been beaten up. The victim's mother pointed at defendant, seated in the back of a patrol car, and blamed him for the victim's disappearance.
Investigators obtained a search warrant for defendant's house. Upon a further search of the residence, the police observed a large amount of blood on the kitchen floor, blood spatter on the walls next to the kitchen, a trail of blood from the tile floor into the bathroom, and more blood inside the bathroom and shower. The police also found three bullet shell casings.
Investigators interviewed two of defendant's neighbors. A week before the October 27, 2012, fire, one of defendant's neighbors was watching television late at night when she witnessed defendant and the victim arguing. Defendant tried to pull the victim out of the car. She screamed to be left alone and defendant screamed back, "No, fucking bitch, no." The victim sounded desperate and the fighting escalated when defendant pulled out a gun and held it to her head. The neighbor was scared but did not call 911 because she did not want to get involved.
Another neighbor remembered seeing the victim at defendant's house many times in the months before October 27, 2012. Defendant told the neighbor that he had asked the victim to move out. The day before the police were called to defendant's house, the neighbor saw defendant and the victim leaving the house together. The victim's red PT Cruiser was parked on the neighbor's property. The neighbor walked over to defendant's property; defendant appeared with the victim, holding a rifle or machine gun. Defendant pointed the gun at the neighbor, but then he laughed and set it down on the driveway. When the victim walked past, defendant picked up the gun again and said, "I've got to get this away from this bitch."
Later that evening, defendant parked his truck at the neighbor's house. The neighbor asked defendant about the victim; defendant said, "She is fucking gone. . . . She is like fucking dead. . . . She is in the kitchen." The neighbor was shocked and in disbelief. Defendant asked the neighbor to help him with the kitchen; the neighbor refused. He did not initially tell the police what happened because he was afraid of defendant, who had been violent towards him in the past.
Some travelers discovered a skull and jaw bone near Gilman Springs Road in Moreno Valley. At the scene, investigators found several bones near a ravine and drainage area north of Gilman Springs Road. The remains were covered with palm tree branches. Investigators recovered several bone fragments, including a partial lower jaw, a partial skull, collar bone, shoulder blade, four ribs, a partial femur, and a foot that was inside a jean pant leg. Because animals had scattered the bones, many were still missing and a complete skeleton could not be recovered.
Several strands of hair collected from the gravesite for forensic testing exhibited a DNA sequence matching defendant's. DNA testing of blood on the Kimber pistol and in defendant's house and of the femur bone established a match for the victim.
A crime scene specialist testified that blood spatter occurs as the result of force impacting a blood source. The specialist explained that, based on the presence of back spatter (or small blood droplets) inside the barrel of the Kimber, the gun barrel was in contact with, or close proximity to, the victim's bullet wound.
A forensic ondontologist compared an X-ray of the partial lower right and left jaw, recovered at the grave site, and the victim's orthodontic retainer and dental X-rays from July 2000, and concluded that they were a "one hundred percent positive" match. An anthropologist with the coroner's office examined the remains and determined a full skeleton had not been recovered. The mandible—a portion of the jaw bone that is "very very strong"—was fractured as a result of a direct blunt force impact. A forensic pathologist examined other remains to determine a cause of death. The pathologist observed significant trauma to the skull, which had multiple fractures. Based on the skull fractures and the broken mandible, the pathologist concluded that one cause of death was homicide caused by violence or blunt force trauma to the skull and jaw.
A jury convicted defendant of first degree murder (Pen. Code, § 187; count 1), felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 2), possession of a machine gun (Pen. Code, § 32625; count 3), the manufacture of controlled substances (Health & Saf. Code, § 11379.6, subd. (a); count 4); and marijuana cultivation (Health & Saf. Code, § 11358; count 5). In addition, the jury found, as to the count 1 offense, that defendant personally and intentionally discharged a firearm causing great bodily injury or death to another person (Pen. Code, §§ 12022.53, subd. (d), 1192.7, subd. (c)(8)) and as to the count 4 offense defendant participated as a principal knowing that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
On November 7, 2014, the court sentenced defendant to an aggregate term of imprisonment of 57 years four months to life consisting of the following: 25 years to life on count 1; a consecutive 25 years to life on the personal discharge of a firearm enhancement attached to the count 1 offense; the midterm of five years consecutive on the count 4 offense; an additional one year consecutive on the armed principal enhancement attached to the count 4 offense; a consecutive eight months, one third the midterm, on the count 2 offense; a consecutive eight months, one third the midterm, on the count 3 offense; and the midterm of two years, concurrent on the count 5 offense.
On February 3, 2017, defendant filed petition for resentencing or dismissal pursuant to Health and Safety Code section 11361.8, the statutory enactment of Proposition 64, as to his conviction for cultivation of marijuana. On March 13, 2017, the People filed opposition to the petition, noting that defendant was ineligible for resentencing or dismissal because he had been convicted of a super strike, first degree murder. In the alternative, the People requested a hearing to prove defendant posed an unreasonable risk of danger to public safety. On March 29, 2017, the court denied the petition, finding defendant was ineligible for relief because he had been convicted of a super strike.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues. (Health & Saf. Code, § 11358, subd. (d) [person who cultivates more than six living cannabis plants may be punished by imprisonment].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.