Filed 8/6/21 P. v. Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078176
Plaintiff and Respondent,
v. (Super. Ct. No. SCS250943)
MARIO ARMANDO LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court San Diego County,
Francis M. Devaney, Judge. Reversed and remanded with directions.
Nancy J. King, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Robin Urbanski, Deputy Attorneys General, for Plaintiff and
Respondent.
In this case, Mario Lopez and four other inmates of the County jail
savagely beat and tortured an elderly inmate to death. The inmate’s offense:
he was a convicted child molester.
In late 2013, a jury convicted Lopez of first degree murder (Pen. Code,1
§ 187, subd. (a)). He was also convicted of torture (§ 206). In 2014, Lopez
was sentenced to an indeterminate term of 28 years to life in prison.
Lopez appealed and this court affirmed the judgment in an
unpublished opinion, People v. Lopez (Jan. 28, 2016, D065801).
In 2019, Lopez filed a pro. per. petition for resentencing under
section 1170.95. Lopez claimed he was convicted on a felony murder theory
or a theory of natural and probable consequences and that he could not be
convicted under current law. After receiving briefing and reviewing the
record of conviction, as well as this court’s opinion in the original appeal, the
trial court denied the petition by written order finding the evidence
demonstrated Lopez was the actual killer.
Lopez filed a timely notice of appeal.
In his written order the trial judge stated:
“On November 6, 2013, after a lengthy trial, the jury
found Petitioner Mario Lopez guilty of the crime of murder,
in violation of Penal Code section 187(a), and further found
the murder was Murder in the First Degree, not guilty of
conspiracy to commit murder, and guilty of the crime of
torture, in violation of Penal Code section 206. Petitioner
subsequently admitted to three prior prison allegations,
and on March 14, 2013, was sentenced to 28 years to life in
state prison. On January 29, 2019, Petitioner filed the
instant Petition for Resentencing per Penal Code section
1170.95, contending that he ‘could not now be convicted of
1st and 2nd degree murder because of changes made to
Penal Code §§ 188 and 189, effective January 1, 2019.’
“Penal Code section 1170.95 allows an individual
convicted of first or second degree murder under either a
theory of felony murder or murder under the natural and
probable consequence doctrine to file a petition to have his
1 All further statutory references are to the Penal Code.
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murder conviction set aside. In order for the court to issue
an order to show cause on the petition, which would shift
the burden to the prosecution, a petitioner must first make
a prima facie showing that three requirements are met:
‘(1) A complaint, information or indictment was filed
against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under
the natural and probable consequences doctrine; (2) The
petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could be convicted for first
degree or second degree murder; and (3) The petitioner
could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019.’ (§ 1170.95, subd. (a).)
“The amendments to Penal Code section 189 restrict the
felony murder rule and only impute liability for felony
murder if, among other things, the defendant was ‘the
actual killer.’ A petitioner convicted of first degree murder
who was the actual killer does not get the benefit of the
amendments to the statute. In this case, the charging
document, jury verdict and opinion of the Court of Appeal
all indicated that Petitioner was the actual killer. This
Court was preassigned this case for all purposes and
presided over the preliminary examination, pre-trial
motions, jury trial and post-trial motions, and is thus
intimately familiar with the facts of this case. The
evidence presented to the jury and upon which it returned
its verdict was very clear that Petitioner was the actual
killer of the victim in this case. The initial assault was
admittedly begun by Petitioner's co-defendants, but
Petitioner, in a particularly gruesome scene, emerged from
the jailhouse shower soon thereafter and viciously and
methodically kicked and stomped the defenseless victim to
death. Petitioner was undeniably the actual killer in this
case. Petitioner has presented no evidence to the contrary.
“For those reasons, the Petition is hereby denied.
Petitioner has not made a prima facie showing that he is
entitled to relief.
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“IT IS SO ORDERED.”
Lopez contends, and the Attorney General agrees, the trial court
engaged in impermissible fact-finding based on the judge’s familiarity with
the evidence at trial. This is a close case for us, as the offense outlined in our
prior opinion was horrendous, and Lopez was apparently the principal
antagonist. However, several theories of liability were provided to the jury
including felony murder. We are satisfied the exact nature of Lopez’s
participation can only be resolved by weighing evidence and finding the facts.
As such, the court erred in denying the petition at the prima facie stage. The
court should have issued an order to show cause (OSC) and conducted an
evidentiary hearing. Therefore, we will reverse the order denying Lopez’s
petition and remand the case to the trial court with directions to issue an
OSC and conduct an appropriate evidentiary hearing.
STATEMENT OF FACTS
We will adopt the statement of facts from our prior opinion. (People v.
Lopez, supra, D065801.)
“In July 2011, Lopez was a prisoner being detained at the George
Bailey Detention Center and was known in the prison by the moniker ‘Evil.’
Prison personnel had made Lopez the ‘captain’ of the medical unit where he
was being held, and inmates in the unit followed his orders without question.
“[R.] Hartsaw was also a prisoner at Bailey, and, on the evening
July 17, 2011, Hartsaw asked a correctional officer to be moved from his then
current unit to another unit. Later that evening, a correctional officer placed
Hartsaw in the medical unit and asked Lopez to help Hartsaw find a bunk.
Lopez agreed. At some point, Lopez learned that Hartsaw had been in
protective custody and that he was a convicted child molester.
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“A few hours after Hartsaw was placed in the unit, Lopez and a number
of other inmates lured Hartsaw to an isolated area of the unit, and, shortly
after guards had passed through the area, Lopez and the other inmates spent
30 minutes punching, kicking, and stomping Hartsaw to death. Toward the
end of the assault, Lopez circled Hartsaw and repeatedly jumped on his
genitals, limbs, and torso, causing Hartsaw’s body to bounce ‘like a
trampoline.’
“After the beating was over, and at Lopez’s instruction other inmates
dragged Hartsaw back to the floor near his bunk and placed his body in a
position so that it appeared as if Hartsaw had fallen from his top bunk.
Lopez also instructed the other inmates to clean up the area where the
beating had occurred; while they were doing so, Lopez took a shower and
sang ‘loudly and happily.’
“Approximately 20 minutes after the beating was over, an inmate
alerted guards that Hartsaw was down. Emergency personnel who
responded were unable to resuscitate Hartsaw. A medical examination
disclosed Hartsaw had suffered 18 rib fractures, 32 facial injuries, multiple
facial fractures, two skull fractures, a fractured sternum, numerous internal
injuries and bleeding.
“Following Hartsaw’s death, Lopez sent two notes or, in prison
parlance, kites, to other inmates. One kite stated Lopez had already given
25 years of his life to the state, and it looked like the state might get the rest
because Lopez was now facing murder charges. The kite stated: ‘That fool
was also a P.C.,’ which was a reference to the fact Hartsaw was in protective
custody and therefore presumably a child molester. According to Lopez’s
kite, Hartsaw showed Lopez paperwork which established that Hartsaw had
been convicted of child molestation. The kite further stated Lopez ‘took care
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of a fuck’n chomo [child molester] that ain’t gon hurt kids no more.’ A second
kite set forth Lopez’s hatred of child molesters and stated that many ‘who no
do got respeto what I did.’ The kites were signed ‘Evil.’
“Lopez also sent a codefendant’s girlfriend a letter in which he stated
that he was sure her boyfriend told her what had happened and ‘let’s just say
“them people” aren’t allowed, sabes?’ ”
DISCUSSION
Section 1170.95 creates a process by which a petitioner who was
convicted of murder on a theory of natural and probable consequences or
felony murder can seek resentencing to take advantage of the changes made
to sections 188 and 189 by Senate Bill No. 1437. (People v. Gentile (2020)
10 Cal.5th 830, 842-843.) Section 1170.95, subdivision (c) provides: “The
court shall review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall file and serve a
response within 60 days of service of the petition and the petitioner may file
and serve a reply within 30 days after the prosecutor response is served.
These deadlines shall be extended for good cause. If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court shall issue
an order to show cause.”
At the beginning stage of the process, the court must determine if the
petitioner has made a prima facie showing of eligibility for relief. If so, the
court must issue an OSC and hold an evidentiary hearing.
The trial court may dismiss a petition if the court determines without
factfinding that the petitioner is ineligible for resentencing as a matter of
law. (People v. Verdugo (2020) 44 Cal.App.5th 320, 332-333, review granted
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Mar. 18, 2020, S260493.) At such an early stage in the process, the court
may consider readily available facts but may not engage in factfinding or
weighing of evidence and making credibility determinations. The process of
finding facts must follow the issuance of an OSC and setting an evidentiary
hearing. (People v. Drayton (2020) 47 Cal.App.5th 965, 982; People v.
Duchine (2021) 60 Cal.App.5th 798, 816.)
In this case the trial court, “familiar with the evidence,” made a finding
that Lopez was the actual killer, and thus ineligible for resentencing. The
difficulty with the finding is that the jury was also instructed on felony
murder. Lopez was one of a group of inmates who attacked the victim. While
it is entirely possible that an evidentiary hearing will result in a finding
Lopez is not eligible for resentencing, such determination cannot be made
based on the crime or the record of conviction. Rather, the court will have to
consider the evidence regarding Lopez’s participation in the offenses.
Lopez contends and the Attorney General properly concedes the court
erred in denying the petition without an evidentiary hearing. We will accept
the parties’ agreement.
DISPOSITION
The order denying Lopez’s petition for resentencing under
section 1170.95 is reversed. The matter is remanded to the Superior Court
with directions to issue an order to show cause and conduct an appropriate
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evidentiary hearing as required by statute. We express no opinion as to the
appropriate outcome of such hearing.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
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