People v. Lopez

93 Cal.App.5th 1110

311 Cal.Rptr.3d 515

The PEOPLE, Plaintiff and Respondent,

v.Oscar LOPEZ, Defendant and Appellant.

E080032

Court of Appeal, Fourth District, Division 2, California.

Filed July 25, 2023

Certified for Partial Publication.^*

Rachel Varnell, Los Gatos, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, and Melissa A. Mandel, Warren J. Williams, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

Defendant Oscar Lopez was convicted of crimes including first degree murder and willful, deliberate, and premeditated attempted murder and sentenced to 141 years to life. In his direct appeal, we modified the sentence; we also reversed conditionally and remanded with directions to consider striking defendant's prior serious felony conviction enhancement and firearm enhancements. On remand, in October 2022, the trial court struck the prior serious felony enhancement but refused to strike the firearm enhancements. It resentenced defendant to 101 years to life.

Defendant appeals again. He contends that at resentencing, the trial court erred under various amendments to the Penal Code,¹ all of which went into effect on January 1, 2022. In the published portion of this opinion, we address his contention that under section 186.22 — as amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (A.B. 333) — there was insufficient evidence to support the gang enhancement to count 5 (unlawful possession of a firearm).

We will hold that, because the judgment against defendant was not final, he was entitled to the ameliorative benefits of A.B. 333.

However, because we had reversed solely with respect to the sentence and directed the trial court to resentence defendant, the trial court did not have jurisdiction to reconsider the gang enhancement. A.B. 333 was simply irrelevant to anything the trial court had jurisdiction to do.

In the unpublished portion of this opinion, we find no other error. Hence, we will affirm.

ISTATEMENT OF FACTS

Defendant Oscar Lopez and an accomplice, in a car, pulled up next to two men in another car. Both defendant and the accomplice said, "[W]here you guys from?," then pulled out guns and started shooting.

One of the victims was killed and the other was wounded.

IISTATEMENT OF THE CASE

In 2017, in a jury trial, defendant was found guilty of:

Count 1: First degree murder (§§ 187, subd. (a), 189), with an enhancement for the discharge of a firearm by a principal in a gang-related crime causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)).

Count 2: Willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664), with an enhancement for personally and intentionally discharging a firearm (§ 12022.53, subd. (c)).

Count 3: Shooting at an occupied motor vehicle (§ 246), with an enhancement for personally using a firearm (§ 12022.5, subd. (a)).

Count 5: Unlawful possession of a firearm (§ 29800, subd. (a)(1)).

Gang enhancements (§ 186.22, subd. (b)) on every count were found true.

In a bifurcated proceeding, after defendant waived a jury, the trial court found true one strike prior (§§ 667, subds. (b)-(i), 1170.12), one prior serious felony conviction enhancement (§ 667, subd. (a)), and three prior prison term enhancements (former § 667.5, subd. (b)).

Defendant was sentenced to a total of 141 years to life in prison.

In 2020, in defendant's direct appeal, we stayed the sentence on count 3; we struck the firearm enhancement to count 3 and all of the prior prison term enhancements. We then said: "The judgment as thus modified is conditionally reversed. On remand, the trial court shall consider whether to strike ... the prior serious felony conviction enhancement[ ] or any of the firearm enhancements. If it does so ..., it must resentence ... defendant. Otherwise, it must reinstate the modified judgment."

On remand, in October 2022, the trial court struck the prior serious felony enhancement but refused to strike any of the firearm enhancements. It resentenced defendant to a total of 101 years to life in prison.

IIITHE EFFECT OF A.B. 333 ON THE GANG ENHANCEMENT TO COUNT 5

Defendant contends that under section 186.22 — as amended by A.B. 333 — there is insufficient evidence to support the gang enhancement to count 5.

Defense counsel raised this argument in the trial court. The trial court, however, agreed with the prosecution that defendant was not entitled to the benefit of A.B. 333 because his conviction had previously become final.

A.B. 333, effective January 1, 2022, made a number of amendments to section 186.22. "First, Assembly Bill 333 ‘narrows the definition of " ‘criminal street gang’ " to "an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." [Citations.]' [Citation.]" ( People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6, 297 Cal.Rptr.3d 344, 515 P.3d 77.)

Second, " ‘imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have "commonly benefited a criminal street gang" where the "common benefit ... is more than reputational"; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense. [Citation.] With respect to common benefit, the new legislation explains: "[T]o benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." [Citation.]’ [Citation.]" ( People v. Ramirez (2022) 79 Cal.App.5th 48, 63, 294 Cal.Rptr.3d 472, review granted Aug. 17, 2022, S275341.)

Third, A.B. 333 "also includes a provision stating that, as used in [section 186.22], ‘to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.' [Citation.]" ( People v. Renteria, supra , 13 Cal.5th at p. 961, fn. 6, 297 Cal.Rptr.3d 344, 515 P.3d 77.)

Under the so-called " Estrada rule," "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation's effective date. [Citation.] This presumption ‘rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ [Citations.]" ( People v. Gentile (2020) 10 Cal.5th 830, 852, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; see In re Estrada (1965) 63 Cal.2d 740, 743–746, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) A.B. 333, to the extent that it adds new elements to a gang enhancement, reduces criminal liability; therefore, it applies to any judgment not yet final when it went into effect. ( People v. Tran (2022) 13 Cal.5th 1169, 1206–1207, 298 Cal.Rptr.3d 150, 515 P.3d 1210.)

The People argue, however, that our conditional reversal did not reopen the conviction itself, as opposed to the sentence, and therefore the conviction became final when we issued our remittitur in 2020.

As both sides agree, two cases are crucial to our analysis: The Supreme Court's decision in People v. Padilla (2022) 13 Cal.5th 152, 293 Cal.Rptr.3d 623, 509 P.3d 975 ( Padilla ), and the subsequent court of appeal decision in People v. Salgado (2022) 82 Cal.App.5th 376, 297 Cal.Rptr.3d 457 ( Salgado).

When Padilla was 16, he committed murder and conspiracy to commit murder. ( Padilla, supra , 13 Cal.5th at p. 159, 293 Cal.Rptr.3d 623, 509 P.3d 975 ; see also id. , at p. 170, 293 Cal.Rptr.3d 623, 509 P.3d 975 [dis. opn. of Corrigan, J.].) He was convicted and sentenced in adult court. After that judgment was final, he filed a habeas petition, seeking resentencing. The trial court vacated the sentence and reconsidered it but decided to reimpose the same sentence. Padilla appealed. The court of appeal vacated the second sentence and remanded for resentencing. ( Id. at p. 159, 293 Cal.Rptr.3d 623, 509 P.3d 975.)

Two weeks later, Proposition 57 was enacted. It provided that a juvenile could be tried in adult court only after a transfer hearing. The trial court nevertheless once again imposed the same sentence, without holding a transfer hearing. ( Padilla, supra , 13 Cal.5th at p. 159, 293 Cal.Rptr.3d 623, 509 P.3d 975.)

The Supreme Court had previously held that, under the Estrada rule, Proposition 57 applied in cases not yet final. ( Padilla, supra , 13 Cal.5th at p. 160, 293 Cal.Rptr.3d 623, 509 P.3d 975, citing People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 303, 309, 228 Cal.Rptr.3d 394, 410 P.3d 22.) In Padilla , it further held that Padilla's conviction was not yet final for this purpose. ( Padilla, supra , at pp. 160–163, 293 Cal.Rptr.3d 623, 509 P.3d 975.) It...