People v. Lopez

56 Cal.App.5th 936

271 Cal.Rptr.3d 170

The PEOPLE, Plaintiff and Respondent,

v.Enrique Nunez LOPEZ, Defendant and Appellant.

H047254

Court of Appeal, Sixth District, California.

Filed October 30, 2020

Counsel for Plaintiff and Appellant: Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Bruce M. Slavin, Deputy Attorney General

Counsel for Defendant and Respondent: Marc J. Zilversmit, San Francisco,

ELIA, J.

In 2014, a jury convicted petitioner Enrique Nunez Lopez of second degree murder under a natural and probable consequences theory, among other crimes. In a prior opinion, we affirmed Lopez's convictions on direct appeal ( People v. Lopez (May 31, 2018, H042227) 2018 WL 2441560 [nonpub. opn.] ) (case No. H042227). Subsequently, Senate Bill No. 1437 amended the natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 4.) Senate Bill No. 1437 also enacted Penal Code section 1170.95¹ , which permits a person convicted of murder under a natural and probable consequences theory to petition the sentencing court to have his or her murder conviction vacated and to be resentenced on any remaining counts. A person is entitled to section 1170.95 relief if, among other things, he or she "could not be convicted of first or second degree murder" following the enactment of Senate Bill No. 1437. ( § 1170.95, subd. (a)(3).)

Lopez filed a section 1170.95 petition. The prosecutor conceded that Lopez had made a prima facie showing of entitlement to relief but opposed his petition on the ground that he could be convicted of second degree murder under a still-valid theory—implied malice. The trial court issued an order to show cause and held a hearing at which the prosecutor bore the burden "to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." ( § 1170.95, subd. (d)(3).) Following the hearing, the court denied the petition, concluding that the prosecution had carried its burden to prove beyond a reasonable doubt that Lopez could still be convicted of murder under the current statute on an implied malice theory.

On appeal, Lopez raises four contentions. First, invoking Apprendi² , he argues that he may not be denied section 1170.95 relief on the ground that he could be convicted of implied malice second degree murder absent a jury determination that he is in fact guilty of that crime beyond a reasonable doubt. Second, Lopez maintains that even if his jury trial right was not implicated, the trial court erred by denying his petition without finding that the prosecutor had proved each element of implied malice second degree murder beyond a reasonable doubt. He says that, instead, the trial court incorrectly applied a sufficiency of the evidence standard. Third, Lopez contends there is insufficient evidence that he is guilty of implied malice second degree murder. Finally, he seeks reversal on grounds that his counsel below suffered from a conflict of interest.

We hold that section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law in order to establish ineligibility based on the third condition. We conclude that the trial court properly applied that standard here and that its ruling is supported by substantial evidence. We hold that section 1170.95 does not implicate Lopez's federal constitutional rights to have essential facts found by a jury beyond a reasonable doubt. And we reject Lopez's conflict of interest claim. For these reasons, we shall affirm.

I. BACKGROUND

A. Factual Summary³

In 2012, Lopez, then a member of the Sureño gang La Esperanza Trece (Espe), accused fellow gang member Daniel "Frosty" Fraga of being "no good" at a gang meeting. The meeting was attended by about 10 Espe members, including Juan Salazar, Jr. According to a number of Espe members, at Lopez's urging, the gang held a vote to determine whether Frosty was no good, meaning he could be killed by members of Espe. There was some disagreement among the Espe witnesses as to the outcome of the vote. Three testified that the group decided Frosty was no good. Two testified that the majority agreed Frosty was no good but that no final decision was made, either because they were awaiting proof or because only gang members in county jail can decide whether a person is no good. And two testified there was no vote; however, one of those witnesses (Lopez's brother) admitted having told police that the group had decided to kick Frosty out of the gang because he was no good. A gang expert testified that every Sureño and every member of the Mexican Mafia has an obligation to kill former Sureños who they know have been deemed no good.

Later on the day of the no good vote, Frosty—accompanied by his friend Hector "Osito" Reyes—confronted Lopez at the home of Salazar's girlfriend. Lopez, Salazar, and the other Espe members who had participated in the no good vote were hanging out there. A fight broke out. It began when Frosty punched Lopez. Lopez's brother, known as Dodger, came to Lopez's defense. When a gang member known as Shadow tried to break up the fight, Osito hit him in the head with the butt of a gun. Osito also hit Dodger in the head with the gun several times, inflicting an injury that required surgical staples. Lopez was stabbed in the arm during the fight. He and Dodger fled the house. Shadow ended up in the bathroom with Osito, who was still armed with a gun, and Frosty, who had a pair of scissors. Shadow was able to escape the bathroom unharmed and fell to the floor in the hall outside the bathroom. Salazar fatally shot Frosty and Osito from the hallway outside the bathroom, a distance of about nine feet from where their bodies were found. Frosty suffered three gunshot wounds; Osito suffered six or seven gunshot wounds. Some of each victim's gunshot wounds had a downward trajectory, which the forensic pathologist who performed the autopsies opined demonstrated that the victims were bending over or on the floor when they sustained those wounds.

B. Procedural History

The Monterey County District Attorney charged Salazar and Lopez with two counts of murder each (counts 1-2; § 187, subd. (a)) and with the substantive offense of active participation in a criminal street gang (count 6; § 186.22, subd. (a)). They also were charged with battery with serious bodily injury (count 3; § 243, subd. (d)); assault with force likely to produce great bodily injury (count 4; § 245, subd. (a)(4)); and child abuse (count 5; § 273a, subd. (a)) arising out of the "checking" of a 17-year-old member of the gang as punishment for dating a Norteño.⁴ Gang enhancement allegations were attached to counts 1 through 5.

A jury trial took place in August and September 2014. Salazar's defense to the murder charges was that he acted in self-defense or in defense of another, Shadow. The jury rejected those defenses and convicted Salazar of first degree murder of Frosty and Osito. Salazar was convicted on all of the other charges as well and jurors found true the gang allegations.

At trial, the prosecutor argued that Lopez was guilty of the murders as an aider and abettor on the theory that the murders were the natural and probable consequence of the substantive gang offense (and specifically of Lopez's actions surrounding the no good vote). Jurors failed to reach a verdict as to count 1, which charged Lopez with Osito's murder; the court declared a mistrial as to that count. The jury convicted Lopez of second degree murder of Frosty and found true the gang allegation attached to that count. The jury also found Lopez guilty of counts 3 through 6 and found true the gang allegations attached to counts 3 through 5.

The trial court sentenced Lopez to 22 years to life in prison. In a prior opinion, we affirmed Lopez's convictions on direct appeal (case No. H042227).

Lopez filed a section 1170.95 petition on February 5, 2019. The trial court appointed the public defender to represent Lopez. The prosecutor conceded that Lopez had made a prima facie showing of entitlement to relief but opposed his petition on the ground that he could be convicted of murder under current law. The case proceeded to the hearing stage. No new evidence was admitted. Rather, the prosecutor argued that the trial evidence proved Lopez's guilt of second degree murder under an implied malice theory. Lopez's counsel contended that the evidence failed to prove that Lopez's act of calling for the no good vote was a proximate cause of Frosty's death. Lopez's counsel further argued that the evidence failed to show that Lopez acted with implied malice.

On September 15, 2019, the trial court denied the petition, stating that the People had carried their burden "to show beyond a reasonable doubt that [Lopez] could still be convicted of murder under the current statute." In reaching that conclusion, the court expressed the view that Lopez "certainly ... would know" that "calling a meeting with associates and saying, [‘]Hey, I think, you know, so and so is no good’ ... meant [that] individual was basically marked for death."

Lopez timely appealed.

II. DISCUSSION

A. Legal Standards Applicable to Section 1170.95 Petitions at the Hearing Stage

Lopez argues that the trial court applied the incorrect legal standard when it denied his petition following the issuance of an order to show cause and a hearing. In his view, the trial court applied the test applicable to appellate claims of insufficient evidence—the substantial evidence standard of review—in concluding that he is ineligible for section 1170.95 relief. Lopez maintains the court should have required the prosecutor to prove the elements of a still-valid theory of murder beyond a reasonable doubt. The Attorney General's position as to the appropriate legal standard was not clear from his brief. At...