Opinion
2d Crim. No. B300812
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL LOPEZ, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2010006451)
(Ventura County)
In 2010, appellant Gabriel Lopez was charged with first-degree murder (Pen. Code, § 187) and attempted second degree robbery (§§ 664, 211). It was alleged that a principal was armed in the commission of these offenses (§ 12022, subd. (a)).
All statutory references are to the Penal Code.
Appellant pled guilty to the murder charge and admitted the principal-armed enhancement. The trial court sentenced appellant to one year plus 25 years to life. The attempted robbery count was dismissed.
"In 2018, the Legislature enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) An uncodified section of the law expressing the Legislature's findings and declarations states the law was 'necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' (Id., § 1, subd. (f).)" (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) Senate Bill 1437 added section 1170.95, which "permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if [certain] conditions are met." "If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).)" (Gooden, at pp. 276-277.)
Appellant petitioned for resentencing under section 1170.95. The trial court appointed him counsel. The prosecution opposed the petition, arguing that Senate Bill 1437 is unconstitutional and that appellant failed to state a prima facie claim for relief. Following a hearing, the court denied the petition. It explained: "The Petition is denied for failing to make a meaningful prima facie showing that Petitioner is eligible for relief. Petitioner does not provide any factual basis for his conclusory allegations. Indeed, the record of conviction clearly establishes that Petitioner does not qualify for relief. While Petitioner was convicted of murder based upon a theory of felony-murder during the commission of an attempted robbery, he is still vicariously liable because the record of conviction conclusively and indisputably establishes that he was a major participant in the attempted robbery, and that he acted with reckless indifference to human life during his participation in the underlying felony. Petitioner willingly agreed to commit the robbery, knowing that his co-defendant [Jose Ochoa] was armed with a handgun, and while Petitioner was on formal probation. Petitioner saw [Ochoa] display the weapon immediately prior to entering the massage parlor. Petitioner rang the doorbell at the back of the business, pretended to pull out money in order to gain entry, and then acted as 'lookout' during the robbery (including by unplugging the surveillance system and by attempting to intimidate employees). Petitioner was in close range when the fatal gunshot was made [by Ochoa], and made no effort to intervene. As Petitioner's counsel has noted, Petitioner pled guilty to first degree murder and admitted that a principal was armed with a firearm. Petitioner has not met his initial burden and his conviction does not fall within the parameters of section 1170.95."
The record supports the trial court's description of the facts. Ochoa fatally shot the massage parlor's owner, SunCha Kays, while another co-defendant, Miguel Martinez, waited in the car. Appellant and his co-defendants fled after the shooting. Appellant later admitted to police that he, Ochoa and Martinez had planned to rob the business and that he knew Ochoa was armed with a handgun. --------
We appointed counsel to represent appellant in this appeal. After an examination of the record, counsel filed an opening brief requesting that the court make an independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende).
We subsequently advised appellant he had 30 days within which to personally submit any contentions or issues that he wished us to consider. The 30 days have since passed, and appellant has not presented any contentions or issues for our consideration.
Whether the protections afforded by Wende and the United States Supreme Court's decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a petition for resentencing under section 1170.95 appears to be an open question. Nonetheless, in the absence of any contrary controlling authority, we will adhere to the Wende procedure in this case. Counsel has already complied with the Wende requirements and appellant has been afforded an opportunity to file a supplemental brief.
We have reviewed the entire record and are satisfied that appellant's counsel has fully complied with his responsibilities and that no arguable issue exists. (Wende, supra, 25 Cal.3d at p. 443; People v. Kelly (2006) 40 Cal.4th 106, 126.)
The order denying the petition for resentencing under section 1170.95 is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
Bruce Young, Judge
Superior Court County of Ventura
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.