People v. Lopez CA2/1

Filed 10/21/21 P. v. Lopez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B307234

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA040566)
v.

ERNEST LOPEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Terry Lee Smerling, Judge. Reversed with
directions.
Victor J. Morse, 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, Idan Ivri and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
 Ernest Lopez challenges the trial court’s denial of his
petition for resentencing of his conviction for murder filed under
Penal Code section 1170.95.1 Lopez’s petition alleges his jury
was instructed on the now invalid natural and probable
consequences theory of murder liability, and that the trial court
engaged in unauthorized factfinding before first issuing an order
to show cause.
Although conceding procedural error, the Attorney General
argues it was harmless because Lopez’s conviction for attempted
murder necessarily demonstrates the jury relied upon a direct
perpetrator theory in finding him guilty of murder. This
hypothesis is contradicted by the record.
During Lopez’s trial, the prosecutor explicitly invited the
jury to convict him of attempted murder based on a specific
intent to kill. However, he also invited the jury to convict Lopez
of murder based on a natural and probable consequences theory.
The record does not indicate which theory the jury used in
ultimately convicting Lopez of murder.
Accordingly, the trial court’s error in denying Lopez’s
petition was not harmless. The matter is reversed and remanded
with instructions to issue an order to show cause for further
proceedings under section 1170.95.
FACTUAL AND PROCEDURAL SUMMARY
A. The Information
In April 2000, the People charged Lopez and codefendant
Jim Valle with murder (§ 187, subd. (a); count 1), attempted

1Subsequent undesignated statutory references are to the
Penal Code.

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premeditated murder (§ 664, subd. (a); count 3), and deadly
weapon/great bodily injury assault (§ 245, subd. (a)(1); count 4),
all against the same victim, Jose Negrete. Lopez alone was
charged with possessing a firearm as an ex-felon (§ 12021,
subd. (a)(1); count 2). The information also alleged as to counts 1,
3, and 4, that Lopez personally used and fired a handgun
inflicting great bodily injury or death (§§ 12022.5, 12022.53), and
that those counts were committed for gang purposes (§ 186.22,
subd (b)(1)). The information further alleged as to counts 3 and 4
that Lopez inflicted great bodily injury on the victim. (§ 12022.7,
subd. (a).)
In our prior opinion involving Lopez’s direct appeal (People
v. Lopez (Dec. 14, 2001, B143476) [nonpub. opn.] [2001 WL
1613504]), we described the facts of the case, which we now
summarize.
On the evening of June 19, 1999, Negrete (the victim),
Heidy Camacho, and sisters Faith and Marie Rodriguez attended
a birthday party at codefendant Jim Valle’s parents’ San Gabriel
Valley home. Many other people, including Lopez, attended the
party. Lopez and several other attendees were members of the
Lomas street gang.
At the party, Negrete was drunk, and he and Camacho had
a verbal argument and physical fight. Negrete pulled Camacho’s
hair. Camacho and several others then walked to a payphone in
a parking lot a block away to telephone Camacho’s mother.
Camacho told Valle about her fight with Negrete. Valle became
angry.
Negrete and the Rodriguez sisters drove up to the
payphone. Negrete got out, argued briefly with Camacho, and
returned to Faith’s car. Valle approached the car and began

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arguing with Negrete, objecting to Negrete’s treatment of
Camacho. Camacho and the Rodriguez sisters unsuccessfully
tried to calm and separate Valle and Negrete. Valle threatened
Negrete with a knife. Eventually, the argument became a
physical fight.
Within a few minutes, several other people from the party,
including Lopez and Valle’s brother, arrived and began attacking
Negrete, who was badly beaten. Some of the attackers shouted
and displayed Lomas gang slogans during the attack. More than
one of the newcomers possessed firearms.
Lopez and Valle’s brother broke bottles over Negrete’s
head. The coroner opined that the resulting head injuries were
severe and possibly life-threatening.
Negrete ended up lying inside Faith’s car, with others
around and inside the car, continuing the attack. At least one
gunshot was fired into the car, killing Negrete. The gun was
within 18 inches of Negrete when the fatal shot was fired.
When the shot was fired, Valle, Lopez, and a third man
were inside or leaning into the car. After the shot, Lopez
continued to hit Negrete until the car pulled away. Lopez and
the other attackers fled.
Negrete was killed in a Lomas-claimed area. Lopez was a
documented Lomas member, and a leader of a group of young
Lomas members who actively perpetrated robberies and violent
crimes.
The People’s gang expert opined that Negrete was the
victim of a “rat-pack” attack. In such attacks, a large group of
gang members attack to demonstrate their fierceness, loyalty to
the gang, and willingness to participate in crime to further the

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gang’s influence and reputation. The victims need not be rival
gang members.
Valle and Lopez were tried together. Neither testified, but
both presented defenses. Valle’s witnesses said that although he
participated in the initial attack on Negrete, he had been pulled
away before the fatal shot was fired. The witnesses said Valle
was not a Lomas member or associate. Valle’s witnesses said
Lopez attacked Negrete, and was leaning into the car when the
shot was fired. Lopez presented a police detective who had
interviewed several witnesses shortly after the crime. The
detective presented some interview statements that were
inconsistent with some of those witnesses’ trial testimony.
Specifically, Faith told the officer she did not see who broke
the bottles on Negrete. Marie did not say she heard Lomas gang
monikers shouted during the attack, and did not identify Lopez
as participating in the attack, but only as running away after the
shot. The detective did not see any injuries on Lopez’s hands
when he was arrested. (People v. Lopez, supra, B143476 [2001
WL 1613504].)
B. Jury Instructions
On the attempted murder charge, Lopez’s jury was
instructed it must find he “harbored express malice aforethought,
namely, a specific intent to kill unlawfully another human being.”
On the murder charge, Lopez’s jury was instructed on
actual malice, direct aiding and abetting, and the natural and
probable consequences doctrine. The natural and probable
consequences instruction provided that the jury must find Lopez
guilty of murder if it found he committed the crime of attempted

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murder (the target offense),2 that he aided and abetted that
crime, that a coprincipal committed the crime of murder, and
that the murder (the non-target offense) was a natural and
probable consequence of the target crime.
C. Conviction and Sentencing
A jury convicted Lopez of second degree murder (§ 187,
subd. (a); count 1), attempted murder (§§ 187, subd. (a), 664;
count 3), and assault with a deadly weapon (§ 245, subd. (a);
count 4). All three charges pertained to Lopez’s attacks on
Negrete during the same incident.
As to counts 1, 3, and 4, the jury found true the
enhancement allegations that the crimes were committed for the
benefit of, at the direction of, or in association with a criminal
street gang and with the specific intent to promote, further, or
assist in criminal conduct by gang members. (§ 186.22, subd.
(b)(1).) As to counts 1 and 3, the jury found true the
enhancement allegations that a principal personally used and
discharged a firearm and caused great bodily injury or death
(§ 12022.53, subds. (b), (c), (d), (e)(1)), but found not true the
enhancement allegations that Lopez personally used and
discharged a firearm and caused great bodily injury or death
(§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d)). As to
counts 3 and 4, the jury found true the enhancement allegations
that Lopez personally inflicted great bodily injury. (§ 12022.7,
subd. (a).)

2 See, e.g., People v. Hardy (2018) 5 Cal.5th 56, 93
(discussing target and non-target offenses for purposes of murder
liability under the natural and probable consequences doctrine).

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 The trial court sentenced Lopez to 15 years to life
imprisonment for his conviction of second degree murder in count
1, with a consecutive term of 25 years to life for the vicarious
firearm enhancement thereto. No sentence was imposed for his
convictions in counts 3 and 4, pursuant to section 954.
D. Prior Appeals
Lopez appealed and, in 2001, this court affirmed his
judgment of conviction, but struck the firearm enhancements.
(People v. Lopez, supra, B143476 [2001 WL 1613504].) Our
Supreme Court granted review, then transferred the cause back
to this court to reconsider its holding on the enhancements in
light of People v. Garcia (2002) 28 Cal.4th 1166, 1169, 1171-1178.
In 2003, this court adopted its original opinion, except for the
section striking the enhancements, and affirmed the judgment.
(People v. Lopez (Apr. 2, 2003, B143476) [nonpub. opn.] [2003 WL
1735674].)
E. Petition for Resentencing and the Trial Court’s
Denial
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437), which, among other
revisions to the law of murder, abolished the natural and
probable consequences doctrine in cases of murder. (See People v.
Gentile (2020) 10 Cal.5th 830, 842-843.) The legislation also
enacted section 1170.95, which established a procedure for
vacating murder convictions for defendants who could no longer
be convicted of murder because of the changes in the law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4.)
On March 12, 2019, Lopez filed a petition for resentencing
pursuant to section 1170.95. The People filed an opposition.

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Through appointed counsel, Lopez filed a reply. After a hearing,
the trial court denied the petition without issuing an order to
show cause.
Lopez timely appealed.
DISCUSSION
A. Senate Bill 1437 and Section 1170.95
The Legislature enacted Senate Bill 1437 “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.” (Stats. 2018, ch. 1015, §1, subd. (f); People v. Gentile, supra,
10 Cal.5th at p. 842; People v. Martinez (2019) 31 Cal.App.5th
719, 723.) To accomplish this objective with respect to the
natural and probable consequences doctrine, Senate Bill 1437
added section 188, subdivision (a)(3), defining malice, to require
that all principals to murder must act with express or implied
malice to be convicted of that crime, with the exception of felony
murder under section 189, subdivision (e). (Stats. 2018, ch. 1015,
§ 2; Gentile, supra, at pp. 842-843.) By these amendments,
Senate Bill 1437 thus altogether eliminated the natural and
probable consequences liability for murder. (People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis).)
Senate Bill 1437 also added section 1170.95 to provide a
procedure by which persons previously convicted of murder under
a natural and probable consequences theory may seek retroactive
relief if they could no longer be convicted of murder because of
the amendments to section 188. (Lewis, supra, 11 Cal.5th at

8
p. 957; People v. Gentile, supra, 10 Cal.5th at p. 843; People v.
Martinez, supra, 31 Cal.App.5th at pp. 722-723.)
Subdivision (a) of section 1170.95 sets forth the
requirements for a facially sufficient petition. The petitioner
must aver that (1) the charging document “allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”;
(2) “petitioner was convicted of first degree or second degree
murder”; and (3) “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); People v.
Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton).) Subdivision
(b) of section 1179.95 in turn “describes where and how the
petition must be filed and specifies its required content,”
including a declaration by the petitioner that he or she “is eligible
for relief according to the criteria set out in subdivision (a).”
(Drayton, supra, at p. 973.) “If a petition fails to comply with
subdivision (b)(1), ‘the court may deny the petition without
prejudice to the filing of another petition.’ (§ 1170.95, subd.
(b)(2).)” (Lewis, supra, 11 Cal.5th at p. 960.)
If a petition for resentencing under section 1170.95 meets
the requirements of subdivisions (a) and (b), the trial court
“proceeds to subdivision (c) to assess whether the petitioner has
made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)”
(Lewis, supra, 11 Cal.5th at p. 960.) At this stage, the trial court
must accept briefing from the parties before making its prima
facie determination of eligibility. (Lewis, supra, at p. 970.)
With the benefit of the parties’ briefing, the trial court may
then consider the record of conviction, including the jury
instructions, verdict form(s), and any special findings or

9
enhancement allegations the jury found true to determine if the
petition makes a prima facie showing of entitlement to relief.
(Lewis, supra, 11 Cal.5th at pp. 970-971; People v. Duchine (2021)
60 Cal.App.5th 798, 815.)
Although “[t]he record of conviction will necessarily inform
the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit
from those that are clearly meritless . . . , the prima facie inquiry
under subdivision (c) is limited.” (Lewis, supra, 11 Cal.5th at
p. 971.) Thus, in conducting its prima facie review, the trial court
does not engage in factfinding, but “ ‘ “takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.” ’ ” (Lewis, supra, at p. 971, quoting
Drayton, supra, 47 Cal.App.5th at p. 978.) “ ‘However, if the
record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, at p. 971, quoting Drayton, supra,
at p. 979.)
If the trial court determines that petitioner has made a
prima facie showing for relief, the court must issue an order to
show cause, “and then must hold a hearing ‘to determine whether
to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).) ‘The
prosecutor and the petitioner may rely on the record of conviction

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or offer new or additional evidence to meet their respective
burdens.’ (§ 1170.95, subd. (d)(3).) At the hearing stage, ‘the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, 11
Cal.5th at p. 960.)
B. The Resentencing Court Erred in Denying Lopez’s
Petition During its Prima Facie Review
Lopez argues that the trial court engaged in unauthorized
factfinding in determining whether he had made a prima facie
case for section 1170.95 relief. Instead of accepting the facts as
stated in his petition, Lopez says the trial court analyzed the
facts as set forth in our prior opinion, and concluded he was a
direct aider and abettor or that he was a major participant acting
with reckless indifference to human life. Lopez concludes we
must reverse and remand with directions that the trial court
issue an order to show cause and hold a hearing pursuant to
section 1170.95, subdivisions (c) and (d).
In his section 1170.95 petition, Lopez alleged that he was
convicted of second degree murder under a natural and probable
consequences theory. The jury instructions support this
possibility. Nothing in the record before the resentencing court
permitted it to conclusively determine that the jury did not base
its verdict on the legally invalid theory of natural and probable
consequences. Thus, nothing in the record of conviction indicates
Lopez was necessarily convicted of murder based on a theory that
he was the actual shooter, harbored the intent to kill, or was a
major participant in the robbery and acted with reckless
indifference to human life.

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 In arriving at its conclusion that our opinion, together with
the trial transcripts, showed that Lopez was convicted as a direct
aider and abettor or was a major participant acting with reckless
indifference to human life, the resentencing court necessarily
engaged in factfinding at the prima facie stage, which it was not
authorized to do. (People v. Nguyen (2020) 53 Cal.App.5th 1154,
1165-1166; see also Drayton, supra, 47 Cal.App.5th at p. 980 [a
resentencing court’s decision-making authority at the prima facie
stage “is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion”].)
C. The Error Was Not Harmless
Our Supreme Court’s recent decision in Lewis held
appellate courts should evaluate the prejudice of a trial court’s
erroneous denial of an order to show cause under the Watson3
standard, under which Lopez must “ ‘demonstrate there is a
reasonable probability that in the absence of the error he . . .
would have obtained a more favorable result.’ [Citations.]”
(Lewis, supra, 11 Cal.5th at p. 974.)
Although the Attorney General concedes the trial court
engaged in unauthorized factfinding at the prima facie stage, he
argues the error was harmless under Lewis. Because the only
theories under which the jury could convict Lopez of attempted
murder were that he was the direct perpetrator, or a direct aider

3 People v. Watson (1956) 46 Cal.2d 818.

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and abettor, so the argument goes, Lopez necessarily harbored an
intent to kill.4
The Attorney General observes that Lopez’s attack on
Negrete continued before, during, and after the shooting that
killed him, and the attempted murder charge was based on the
same conduct as the murder charge. He observes that defense
counsel, the prosecutor, and the court agreed sections 654 and
954 applied, and rendered sentencing on the assault and
attempted murder charges impermissible, because they were
charged as lesser offenses to the murder.
The Attorney General concludes: “[T]he jury’s guilty
verdict on the attempted murder charge demonstrates it did find
[Lopez] intended to kill the victim, which necessarily means that
the murder conviction was not based on the natural and probable
consequences doctrine, but on a finding of express malice.”
Initially, the Attorney General’s argument relies on the
false premise that application of sections 654 and 954 necessarily
implies that the jury made the same mental state finding as to
both the attempted murder and murder charge. But section 654
speaks to permissible punishment, saying nothing whatsoever
about what a jury necessarily finds in returning its guilty
verdicts on a multi-count information.5

4 See, e.g., People v. Smith (2005) 37 Cal.4th 733, 739
(attempted murder requires specific intent to kill); People v. Lee
(2003) 31 Cal.4th 613, 624 (“the person guilty of attempted
murder as an aider and abettor must intend to kill”).
5 Section 654, subdivision (a) provides, in pertinent part:
“An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision

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 Lopez’s reply emphasizes that the attempted murder
charge and murder charge were based upon different events: the
attempted murder charge was based on Lopez’s non-fatal beating
of Negrete (when he was lying on the ground), while the murder
charge was based on other evidence that an unidentified person
fired at least one gunshot at Negrete, killing him (when he was in
a vehicle).
Lopez’s reply also highlights the prosecutor’s closing
arguments at trial which he offers to demonstrate that it is not
necessarily true that the jury’s verdict on the attempted murder
charge implied that the jury’s verdict on the murder charge was
based on a direct perpetrator theory.
As set forth below, the prosecutor invited the jury to convict
Lopez of attempted murder based on his specific intent to kill by
personally beating Negrete over the head with beer bottles. In
the same breath, however, the prosecutor also invited the jury to
convict Lopez of murder as an aider and abettor because the fatal
shooting of Negrete was a natural and probable consequence of
the group beating of the victim:
“Now, would you hold them responsible because instead of
those circumstances, they both participated in a gang assault,
termed a rat-pack by our gang expert, that lasted three to four
minutes with fists and feet and a frenzy to the point that one of
the gang members was apparently up on the roof of the car or up
on the hood of the car and bottles are being smashed, and they
continued to punch Mr. Negrete until he was unconscious? And

that provides for the longest potential term of imprisonment, but
in no case shall the act or omission be punished under more than
one provision.” Section 954 does not appear to be applicable to
this argument.

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some of the gang members had weapons, and some had knives,
and one had a 9-millimeter, and the assault continued. Mr.
Negrete died as a result of that assault. Is that reasonably
foreseeable? Of course it is. And, therefore, you should find the
defendants guilty of the crime of murder.” (Italics added.)
Lopez concludes that the prosecutor’s closing argument
invited the jurors to convict him of the attempted murder based
on malice, but also to convict him of murder based on the now
invalid natural and probable consequences theory of murder
liability.
Mindful that “the ‘prima facie bar was intentionally and
correctly set very low’ ” (Lewis, supra, 11 Cal.5th at p. 972), the
dispute over whether the jury convicted Lopez of murder based
on the legally-invalid natural and probable consequences doctrine
or, instead, based on a direct perpetrator theory, needs to be
addressed by the parties following an order to show cause
hearing in the trial court.
We express no opinion on Lopez’s ultimate entitlement to
relief.6

6 We note that Senate Bill No. 775 (2021-2022 Reg. Sess.)
which amends section 1170.95, was approved by the Governor on
October 5, 2021. (Stats. 2021, ch. 551, § 2.) This legislation
“clarifies existing law to include voluntary manslaughter and
attempted murder convictions as eligible for relief under [Senate
Bill] 1437” (Sen. Com. on Public Safety, com. on Sen. Bill No. 775
(2021-2022 Reg. Sess.)), and takes effect on January 1, 2022.

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 DISPOSITION
The trial court’s order is reversed, and the trial court is
ordered to issue an order to show cause and conduct further
proceedings under section 1170.95.
NOT TO BE PUBLISHED

CRANDALL, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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