Filed 5/25/22 P. v. Lopez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B316490
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA057914)
v.
ROBERT LOPEZ, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Joseph R. Porras, Judge. Dismissed.
Marilee Marshall, under appointment for the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
——————————
Robert Lopez, Jr., appeals from the denial of his petition for
resentencing under Penal Code1 section 1170.95. Lopez’s
appointed counsel filed a brief asking this court to proceed under
People v. Serrano (2012) 211 Cal.App.4th 496.
A jury convicted Lopez of second degree murder with a true
finding that Lopez personally used a knife during the commission
of the crime. At trial, Lopez did not dispute that he stabbed and
killed the victim in an altercation over a bicycle. Lopez testified
in his own defense, stating that his bicycle had been stolen, and
two days later, he saw the victim riding his stolen bicycle. Lopez
admitted that he took a knife and ran toward the victim, after
which the two began to fight. Witnesses saw Lopez grab the
victim and stab him in the neck. Lopez testified he accidentally
stabbed the victim. Lopez was sentenced to 15 years to life, plus
one year for the weapon enhancement. The trial court did not
instruct on felony murder or natural and probable consequences.
A different panel of this division affirmed the judgment in People
v. Lopez (Oct. 2, 2002, B148880) [nonpub. opn.], finding sufficient
evidence of implied malice to support Lopez’s second degree
murder conviction.
Thereafter, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437) became effective, which amended sections 188
and 189, to narrow the scope of aider and abettor liability for
murder, and added a petitioning procedure under
section 1170.95. (Stats. 2018, ch. 1015, §§ 1–4.) Second degree
implied malice murder was not eliminated by Senate Bill 1437,
which “removed the natural and probable consequences doctrine
as a basis for a murder conviction only insofar as it applied to
1 All further statutory references are to the Penal Code.
2
aider and abettor liability.” (People v. Roldan (2020)
56 Cal.App.5th 997, 1004.)
Lopez petitioned for resentencing. The trial court held a
section 1170.95 hearing, and, at the prima facie stage of review,
counsel for Lopez argued that the language in the implied malice
instruction refers to “natural consequences,” thereby bringing it
within the changes brought by Senate Bill 1437. The People
argued that the theories of natural and probable consequences
and implied malice are distinct doctrines, and Senate Bill 1437
did not eliminate the implied malice doctrine. The trial court
found that a prima facie case was not established and denied the
petition stating it had considered the “record of conviction,
arguments, jury instruction, the prosecutor’s closing argument,
[and] the appellate opinion,” and “this court is very confident”
that neither the “natural and probable consequences theory [n]or
felony murder” were an issue in the case, and “[i]t was defendant
convicted as the actual killer.”
Lopez’s appointed counsel declared she was unable to find
any arguable issues. By letter, we advised Lopez that he had
30 days to submit by brief or letter any contentions or argument
he wished this court to consider. Lopez did not submit a
supplemental brief. Under People v. Serrano, supra,
211 Cal.App.4th 496, when appointed counsel raises no issue in
an appeal from a postjudgment proceeding, an appellate court
may dismiss the appeal without a review under People v. Wende
(1979) 25 Cal.3d 436. (Serrano, at p. 503.) We have nonetheless
independently reviewed the record under Wende, and are
satisfied Lopez’s attorney has fully complied with the
responsibilities of counsel and no arguable issue exists. (People v.
Kelly (2006) 40 Cal.4th 106, 119; Wende, at p. 441.)
3
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
KIM, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
4