People v. Lopez CA2/7

Filed 5/12/23 P. v. Lopez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B318682

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A027383)
v.

DANIEL LOPEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
J. Kahn, 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, Senior
Assistant Attorney General, Daniel Chang and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

In 1984 a jury convicted Daniel Lopez of first degree
murder and found true allegations he personally used a firearm
and a deadly or dangerous weapon (a knife). In 2021 Lopez filed
a petition for resentencing under Penal Code section 1170.95
(now section 1172.6).1 In his petition Lopez alleged that he was
prosecuted under a felony-murder theory, that he shot and
stabbed the victim, but that he acted in self-defense. The
superior court found Lopez failed to state a prima facie case for
relief because he was the actual killer. The court denied the
petition without issuing an order to show cause. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Lopez of First Degree Murder
One evening in July 1983 Robert Pina was in his living
room with his girlfriend, Yolanda France, and Ruben Sepulveda.
While France was in the bathroom, Sepulveda decided to go to
the liquor store. As Sepulveda walked out the front door, Lopez
walked in. Sepulveda did not know Lopez.
When France came out of the bathroom and entered the
living room, she saw Pina and Lopez in the kitchen and heard
Lopez say to Pina, “I thought we were alone. What’s going on?”
Lopez held a gun to the back of Pina’s head, fired it, and then
stabbed Pina in the back. Sepulveda returned from the liquor
store, got out of his car, and heard a gunshot. Through the open
front door, Sepulveda saw Pina fall down and Lopez standing

1 Statutory references are to the Penal Code.

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over France. Sepulveda heard Pina say, “Danny, please leave her
alone.”
Lopez ran out of the house and drove away. Sepulveda got
in his car and pursued Lopez for about a mile and a half before he
lost him and returned to Pina’s home. Sepulveda saw Pina lying
on the floor and bleeding. Sepulveda said, “Don’t die without
telling me who did this to you.” Pina said, “Danny Lopez.”
France said, “It was that fucking Danny Lopez.” In an
ambulance on the way to the hospital, Pina told a police officer
that Lopez was the person who attacked him. Pina died of stab
wounds to his back and a gunshot wound to his head.
The jury found Lopez guilty of first degree murder and
found true allegations Lopez personally used a firearm within the
meaning of section 12022.5, and a deadly or dangerous weapon
within the meaning of section 12022, subdivision (b). The jury
found Lopez not guilty of assaulting France with a deadly
weapon. The trial court sentenced Lopez to a prison term of
25 years to life, plus two years for the firearm enhancement.
Lopez appealed. We held substantial evidence did not
support his conviction for first degree murder because there was
insufficient evidence that Lopez acted with premeditation or that
the murder occurred in the course of a robbery. We reduced
Lopez’s conviction to second degree murder and his sentence to
15 years to life. (People v. Lopez (Apr. 5, 1985, B004961)
[nonpub. opn.].)

B. The Superior Court Denies Lopez’s Petition Under
Section 1172.6
In November 2021 Lopez, representing himself, filed a
petition for a writ of habeas corpus and identified section 1172.6

3
as one ground for relief, stating he was prosecuted under a
felony-murder theory. In his petition Lopez included a
“statement of petitioner/defendant,” in which he admitted he shot
and stabbed Pina: “So I quickly point and shoot Pina in the
head. . . . When I turn back around to see Pina he is up on his
feet at the sink grabbing a knife, so I pull out my knife and stab
him two times.” Lopez asserted he acted in self-defense: “There
was no malice involved in the case. I did not plan on killing Pina,
and I did not want to kill Pina. I only did what I did because I
[truly] thought Pina was trying to kill me.” Lopez signed the
petition under penalty of perjury.
The superior court treated Lopez’s petition as one for writ
of habeas corpus and for resentencing under section 1172.6. The
court appointed counsel, and the People and Lopez filed briefs.
The court denied Lopez’s petition for writ of habeas corpus and
his petition for resentencing under section 1172.6, ruling on the
latter petition Lopez had failed to establish a prima facie case for
relief. The court stated Lopez “was the direct killer. . . . So based
on what the jury found and what the appellate court found, I
don’t find a prima facie case.” The court also stated, “In the
People’s moving papers, they quote the appellate court basically
saying that the defendant was a direct killer.” Lopez timely
appealed.

DISCUSSION

A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding

4
a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th
830, 842-843) and significantly narrowing the felony-murder
exception to the malice requirement for murder (§§ 188,
subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th
698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)2
Section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and
requires proof of malice to convict a principal of murder, except
under the revised felony-murder rule in section 189,
subdivision (e). The latter provision requires the People to prove
that the defendant was the actual killer (§ 189, subd. (e)(1)); that
the defendant, though not the actual killer, with the intent to kill
assisted in the commission of the murder (§ 189, subd. (e)(2)); or
that the defendant was a major participant in a felony listed in
section 189, subdivision (a), and acted with reckless indifference
to human life, “as described in subdivision (d) of Section 190.2,”
the felony-murder special-circumstance provision. (§ 189,
subd. (e)(3); see Strong, at p. 708; Gentile, at pp. 842-843.)
Section 1172.6 authorizes an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the superior court to vacate the
conviction and be resentenced on any remaining counts if he or
she could not now be convicted of murder because of the
legislative changes to the definitions of the crime. (See People v.
Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at
p. 957; People v. Gentile, supra, 10 Cal.5th at p. 843.) If a

2 The Legislature later renumbered section 1170.95 to
section 1172.6. (See People v. Strong, supra, 13 Cal.5th at p. 708,
fn. 2.)

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section 1172.6 petition contains all the required information, the
court must appoint counsel to represent the petitioner if
requested. (Lewis, at pp. 962-963; see § 1172.6,
subd. (b)(1)(A), (3).) The prosecutor must then file a response to
the petition, the petitioner may file a reply, and the court must
hold a hearing to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief. (§ 1172.6,
subd. (c).)
In deciding whether a petitioner has made a prima facie
showing for relief under section 1172.6, “‘“the court 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, 11 Cal.5th at
p. 971.) The court may consider the record of conviction, which
will “necessarily inform the trial court’s prima facie inquiry
under section [1172.6], allowing the court to distinguish petitions
with potential merit from those that are clearly meritless.”
(Ibid.; see People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
The record of conviction includes closing arguments, jury
instructions, verdict forms, and prior appellate opinions in the
case. (Lewis, at pp. 971-972; People v. Jenkins (2021) 70
Cal.App.5th 924, 935.) “However, ‘the probative value of an
appellate opinion is case specific, and “it is certainly correct that
an appellate opinion might not supply all answers.”’” (People v.
Lopez (2022) 78 Cal.App.5th 1, 13-14; see Lewis, at p. 972; People
v. Ervin (2021) 72 Cal.App.5th 90, 99, 102.) “In reviewing any
part of the record of conviction at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the

6
weighing of evidence or the exercise of discretion.’” (Lewis, at
p. 972; see People v. Eynon (2021) 68 Cal.App.5th 967, 975.)
“Nevertheless, the court may appropriately deny a petition
at the prima facie stage if the petitioner is ineligible for relief as a
matter of law. ‘“[I]f 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,’”’ thereby deeming the
petitioner ineligible.” (People v. Harden (2022) 81 Cal.App.5th
45, 52 (Harden); see Lewis, supra, 11 Cal.5th at p. 971.) We
review de novo an order denying a petition under section 1172.6
petition without issuing an order to show cause. (Harden, at
p. 52; People v. Coley (2022) 77 Cal.App.5th 539, 545.)
Where the petitioner makes the requisite prima facie
showing he or she is entitled to relief under section 1172.6, the
court must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subds. (c), (d)(1).) At that hearing the court may
consider evidence “previously admitted at any prior hearing or
trial that is admissible under current law,” including witness
testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the
prosecutor may also offer new or additional evidence. (Ibid.; see
People v. Gentile, supra, 10 Cal.5th at pp. 853-854.)

B. Lopez Is Ineligible for Relief Under Section 1172.6
Because His Petition and the Record of Conviction
Establish He Was the Actual Killer
Lopez argues he made a prima facie showing he was
eligible for resentencing under section 1172.6 because the trial
court instructed the jury on felony murder and the jury made no

7
finding Lopez was the actual killer or had the intent to kill.
Lopez, however, admitted in his petition he was the actual killer.
Moreover, the record of conviction shows no path for the jury to
have convicted Lopez of murder on a theory other than as the
actual killer. Therefore, Lopez is ineligible for resentencing
under section 1172.6 as a matter of law.
The trial court instructed the jury on two theories of
murder: “the unlawful killing of a human being with malice
aforethought” (i.e., malice murder; CALJIC No. 8.10) and the
“unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs as a result of the
commission of or attempt to commit the crime of robbery” (i.e.,
felony murder; CALJIC No. 8.21). The court did not instruct the
jury on a natural and probable consequences theory or on aiding
and abetting.
The jury found Lopez guilty of first degree murder, but was
not asked to specify a theory of murder. If the jury found Lopez
killed Pina with malice, he is ineligible for resentencing because
section 1172.6 applies only where malice is imputed based on a
person’s participation in a crime. (§ 1172.6, subd. (a); see People
v. Lopez, supra, 78 Cal.App.5th at p. 15 [“If the jury found
defendant guilty of malice aforethought murder, he would be
ineligible for relief as a matter of law because section 1170.95
affords relief only to those convicted of felony murder, murder
under the natural and probable consequences doctrine, or murder
under any other theory under which malice is imputed based on a
person’s participation in a crime.” (fn. omitted)].) And if the jury
found Lopez guilty of killing Pina on a felony-murder theory, he
is ineligible for resentencing if he was the actual killer. (See
§ 189, subd. (e)(1); Harden, supra, 81 Cal.App.5th at p. 53

8
[“defendants convicted of felony murder are not eligible for relief
if they were the actual killer”].) Therefore, the only way Lopez is
eligible for relief under section 1172.6 is if the jury convicted him
of felony murder on a theory other than as the actual killer.
In his petition, however, Lopez admitted he was the actual
killer. He stated he “[shot] Pina in the head” and “stab[bed] him
two times.” Taking those allegations as true, Lopez is not eligible
for relief under section 1172.6 because he was the actual killer.
(See Lewis, supra, 11 Cal.5th at p. 971 [at the prima facie stage a
court must take a defendant’s factual allegations as true and
decide whether the defendant would be entitled to relief if the
factual allegations were proved].)
Lopez argues his admission is not “binding” because he
made the statement in a “pro per habeas petition” rather than
during a plea hearing. (Cf. People v. Romero (2022)
80 Cal.App.5th 145, 153 [defendant who pleaded no contest to
first degree murder and admitted the allegation he “acted
intentionally, deliberately and with premeditation” was ineligible
for resentencing under section 1172.6 because the defendant’s
admission established “that he acted with actual malice”].) But
even if Lopez’s statements are not binding in the same way as
admissions in a plea agreement are, Lopez offers no reason the
court could not consider those statements and assume, as Lewis
requires, their truth. Moreover, Lopez’s admission he killed Pina
was not a stray, accidental comment. (See Romero, at pp. 152-
153 [distinguishing a “stray comment made in passing during a
plea hearing” from a “binding admission to a charged
enhancement allegation”].) In a one-page, single-spaced
statement, Lopez explained in detail how he shot Pina in the
head in (according to Lopez) self-defense and how he stabbed

9
Pina twice after Pina stood up and picked up a knife. Nor does
the fact Lopez was representing himself when he filed his
petition mean the court must disregard the statements in his
petition. This is not a case of applying a technical rule of
procedure to deny a litigant a hearing;3 Lopez made the
statement under oath in his petition. The court also appointed
counsel to represent Lopez, yet neither Lopez nor his attorney
ever claimed the statements in Lopez’s petition about how he
killed Pina were inaccurate or mistaken, nor did they ever seek to
amend the petition to remove Lopez’s statement he was the
actual killer.
In any event, the record of conviction rules out the
possibility the jury convicted Lopez of felony murder on a theory
other than as the actual killer. Lopez was the only defendant.
He was prosecuted as the sole perpetrator, not as an aider and
abettor. Neither side presented any evidence Lopez had an
accomplice who shot or stabbed Pina. The prosecutor argued
Lopez killed Pina, stating during closing argument, “Danny
Lopez and no other is the perpetrator.” Counsel for Lopez did not
argue Lopez had an accomplice who killed Pina, but instead
argued that Sepulveda, the prosecution’s witness, robbed and
killed Pina and blamed it on Lopez: “And when Mr. [Sepulveda]
ran out, as he says to look at the curb or to chase Mr. Lopez or to
do all those things, what he was doing is dumping the gun that
he shot him with.”

3 To the contrary, only by liberally construing Lopez’s
petition, which was not submitted on a preprinted form, in his
favor can we say his petition satisfied the requirements of section
1172.6, subdivision (b)(1)(A).

10
 Harden, supra, 81 Cal.App.5th 45 is instructive. There, as
here, the trial court instructed the jury on malice murder with
CALJIC No. 8.10 and felony murder with CALJIC No. 8.21, but
not on the natural and probable consequences doctrine. (Id. at
p. 53.) In addition, as here, “the jury was not instructed that it
could convict [the defendant] as an aider and abettor, accomplice,
or as a major participant in the burglary and robbery who acted
with reckless indifference to human life.” (Ibid.) And, as here,
the prosecutor argued the defendant alone killed the victim,
while counsel for the defendant argued the defendant did not
commit the crime. (Id. at p. 54.) The jury convicted the
defendant of first degree murder and found true allegations that
she committed the murder while engaged in the commission of
robbery and burglary and that she personally inflicted great
bodily injury. (Ibid.) The court concluded “no juror could have
voted to convict [the defendant] as anything other than being the
actual killer.” (Ibid.) Same here.
Lopez correctly points out that the jury instructions in
Harden and in this case were not identical. For example, in
Harden the jury was instructed with CALJIC No. 8.10 that
“‘every person who unlawfully kills a human being with malice
aforethought . . . is guilty of ‘murder,’” which “‘[i]n common
understanding . . . would refer to the person who inflicted the
fatal injury.’” (Harden, supra, 81 Cal.App.5th at pp. 54-55.) In
contrast, the version of CALJIC No. 8.10 in Lopez’s trial stated,
“The crime of murder is the unlawful killing of a human being
with malice aforethought.” Lopez argues the instruction in
Harden (“every person who unlawfully kills”) required the jury to
find the defendant “personally killed,” while the instructions in
his trial permitted the jury to convict him of murder if it found

11
that there was an “unlawful killing of a human being with malice
aforethought” and that “a human being was killed,” without
finding it was Lopez who did the killing.
The problem with Lopez’s argument is that a juror who
found there was an “unlawful killing of a human being [Pina]
with malice aforethought” could not have found anyone other
than Lopez did the killing. As discussed, Lopez was the only
defendant. There was no allegation, argument, or evidence Lopez
had an accomplice, and the jury was not instructed on aiding and
abetting. Nothing in the jury instructions told the jurors they
could convict Lopez of murder if he was not the actual killer. The
prosecution argued Lopez acted alone in killing Pina, and counsel
for Lopez argued Sepulveda, whom Lopez had never met and
obviously was not Lopez’s accomplice, killed Pina. By convicting
Lopez of murder, the jury necessarily found Lopez and not
Sepulveda (or anyone else) killed Pina. (See People v. Patton
(2023) 89 Cal.App.5th 649, 657 [as the “sole and actual
perpetrator of the attempted murder,” the defendant was
“ineligible for resentencing as a matter of law”].)
Lopez also asserts that in Harden, unlike this case, the jury
found the defendant “personally inflicted great bodily injury,” the
“natural meaning” of which “is that the defendant herself
inflicted the injury.” (Harden, supra, 81 Cal.App.5th at p. 55.)
But the jury in this case found that, in committing murder, Lopez
personally used a deadly or dangerous weapon (the knife), within
the meaning of section 12022, subdivision (b), and personally
used a firearm (the gun), within the meaning of section 12022.5.
Standing alone, the true findings on these allegations may not
establish Lopez was the actual killer, because the trial court
instructed the jury that “personal use” may include “display[ing]”

12
the knife or firearm in a “menacing manner.” (CALJIC Nos.
17.16, 17.19; see People v. Young (2005) 34 Cal.4th 1149, 1205;
People v. Garrison (2021) 73 Cal.App.5th 735, 743-744). But the
jury’s finding Lopez personally used a knife and a firearm,
combined with the fact it was uncontroverted that Pina died of
stab wounds and a gunshot wound, compels the conclusion the
jury found Lopez personally used a knife and a gun to kill Pina.
Lopez argues “the jury could have convicted [him] of felony
murder with no finding of intent to kill” under CALJIC No. 8.21,
which as stated told the jury that the “unlawful killing of a
human being, whether intentional, unintentional or accidental,
which occurs as a result of the commission of or attempt to
commit the crime of robbery, and where there was in the mind of
the perpetrator the specific intent to commit such crime, is
murder of the first degree.” This argument doesn’t get Lopez
anywhere: He is ineligible for resentencing under section 1172.6
if he was convicted of felony murder as the actual killer. (See
§ 189, subd. (e)(1).)
Lopez also argues the superior court improperly “weigh[ed]
the evidence” by “look[ing] to facts in the appellate opinion
regarding who did what and with what intent.” But nothing in
the record indicates the superior court engaged in the kind of
factfinding or weighing of evidence that is inappropriate at the
prima facie stage. (See Lewis, supra, 11 Cal.5th at p. 972.) The
court stated it was denying Lopez’s petition “based on what the
jury found and what the appellate court found”—that Lopez was
“the direct killer.” The superior court did not err in reviewing the
record of conviction to determine whether Lopez was eligible for
relief under section 1172.6. (See Lewis, at p. 971 [court may
reject allegations in a section 1172.6 petition if the facts in the

13
record of conviction refute the allegations]; People v. Ervin, supra,
72 Cal.App.5th at p. 102 [record of conviction includes closing
arguments].) Although the superior court referred to “what the
appellate court found,” the court did not cite any factual
statements in our opinion in Lopez’s direct appeal. The court
simply stated Lopez was the actual killer, which did not require
any factfinding or weighing of evidence because there was
nothing in the record of conviction to suggest Lopez was
prosecuted as anything other than the actual killer. (See People
v. Patton, supra, 89 Cal.App.5th at p. 658 [rejecting the
defendant’s “contention that the trial court ‘“‘engage[d] in
factfinding, weigh[ed] the evidence, or reject[ed] the petition’s
allegations on the basis of adverse credibility determinations,’”’
where the evidence the defendant “committed the shooting was
and is uncontroverted”].)
Finally, Lopez argues he was entitled to an evidentiary
hearing because “whether [he] was the actual killer was
irrelevant at the time of trial; thus, he may have lacked incentive
to challenge evidence suggesting he was the actual killer or
present evidence he was not.” But the closing argument reveals
counsel for Lopez vigorously challenged the prosecution’s theory
that Lopez was the killer and pursued an alternative theory that
Sepulveda was. The jury necessarily rejected that argument.

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 DISPOSITION

The order denying Lopez’s petition under section 1172.6 is
affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

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