Opinion
B327568
02-08-2024
THE PEOPLE, Plaintiff and Respondent, v. HECTOR LOPEZ, Defendant and Appellant.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA242150 . Robert C. Vanderet, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
Defendant and appellant Hector Lopez appeals from the denial of his petition for resentencing pursuant to Penal Code former section 1170.95. Former section 1170.95 was renumbered and recodified as section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to former section 1170.95 only by its new designation (section 1172.6).
We affirm.
BACKGROUND
In 2003, a jury found defendant guilty of one count of attempted murder of Abel Martinez and one count of attempted voluntary manslaughter of Jaime Garcia arising from a shooting incident in September 2001. (Pen. Code, § 187, subd. (a), § 664, § 192, subd. (a).) The jury found true the allegations that the attempted murder of Abel was willful, deliberate and premeditated, defendant personally used and discharged a firearm and inflicted great bodily injury, and the offense was gang related. (§ 12022.53, subds. (b)-(e), § 12022.7, subd. (a), § 186.22, subd. (b)(1).) The jury also found true the allegations defendant personally used a firearm in the attempted voluntary manslaughter of Jaime, and the offense was gang related. (§ 12022.5, § 186.22, subd. (b)(1).)
In 2004, we affirmed defendant's conviction for attempted premeditated murder. We reversed defendant's conviction for attempted voluntary manslaughter based on the People's concession of instructional error as to that count. (People v. Lopez (Aug. 25, 2004, B168755) [nonpub. opn.].)
After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), defendant filed, in propria persona, a petition for resentencing pursuant to Penal Code section 1172.6. Defendant declared under penalty of perjury that he had been charged and convicted of attempted murder under the felony murder rule, the natural and probable consequences doctrine or other theory of imputed malice and that he could no longer be convicted in light of the changes made to sections 188 and 189. Defendant requested the appointment of counsel.
The trial court summarily denied defendant's petition without receiving any briefing. The trial court found defendant was ineligible for relief as a matter of law because the jury found defendant personally inflicted injury on the victim with a firearm. The court also said that "[t]he appellate court noted that two witnesses at trial identified [defendant] as the person who shot at the victim."
This appeal followed. We decline the People's request to take judicial notice of the entire appellate record from the direct appeal, as it is unnecessary, and take notice only of the relevant parts of the record. (People v. Lopez, supra, B168755.)
DISCUSSION
We independently review the denial of a section 1172.6 petition at the prima facie stage. (People v. Ervin (2021) 72 Cal.App.5th 90, 101.) We agree with the trial court that defendant is ineligible for relief as a matter of law.
Section 1172.6, subdivision (a) states that "[a] person convicted of . . . attempted murder under the natural and probable consequences doctrine" may file a petition for sentencing relief. The record of conviction here unequivocally establishes that defendant was prosecuted and convicted of attempted premeditated murder as the actual shooter who acted with intent to kill and not under the natural and probable consequences theory. The jury found defendant acted with premeditation and personally used and discharged a firearm causing great bodily injury. And, as the People point out, the jury was not instructed with the natural and probable consequence doctrine-a point which defendant does not dispute.
Defendant did not establish his eligibility for resentencing and his petition was therefore properly denied. (People v. Strong (2022) 13 Cal.5th 698, 708 ["If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition."].)
Defendant contends that a remand is nonetheless warranted because the court committed error by failing to appoint counsel for him and allow briefing before making a prima facie determination, and by relying on facts stated in the appellate opinion from his direct appeal.
The record here is unclear on the appointment of counsel for purposes of pursuing the resentencing petition. The record contains a filing by attorney Paul Cohen, on behalf of defendant, shortly after the filing of defendant's petition. Counsel states in the filing that he had been appointed and was seeking the appointment of a psychiatrist for defendant. The filing makes no mention of the pending resentencing petition, so it is unclear what was the scope of Mr. Cohen's appointment and whether it included handling the resentencing petition.
In any event, any error by the court in the appointment of counsel was harmless. The failure to appoint requested counsel at the prima facie stage is reviewed for state law error. (People v. Lewis (2021) 11 Cal.5th 952, 973.) A defendant must" 'demonstrate there is a reasonable probability that in the absence of the error he . . . would have obtained a more favorable result.'" (Id. at p. 974.) As we have already explained above, defendant cannot do so because the record of conviction is unequivocal that he is not entitled to relief under section 1172.6. (People v. Hurtado (2023) 89 Cal.App.5th 887, 893 [a defendant who was "the attempted murderer" was ineligible for relief as a matter of law because there was no reasonable probability he could have obtained a more favorable result with the assistance of counsel].)
The fact the court mentioned facts from the 2004 appellate opinion, in addition to the jury's factual findings as to defendant's guilt, was also harmless and needs no further discussion.
DISPOSITION
The order denying defendant and appellant Hector Lopez's petition for resentencing is affirmed.
WE CONCUR: STRATTON, P. J. VIRAMONTES, J.