Filed 10/20/23 P. v. Lopez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084905
Plaintiff and Respondent,
(Super. Ct. No. 1050255)
v.
ANDREW RICK LOPEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Ricci
Mueller, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
*Before Levy, Acting P. J., Peña, J. and Meehan, J.
INTRODUCTION
Defendant Andrew Rick Lopez was sentenced to 15 years-to-life imprisonment
after being convicted of second degree murder (Pen. Code § 187, subd. (a)) in 1992, plus
one year for a knife use enhancement (§ 12022, subd. (b)) and one year for a prison prior
enhancement (§ 667.5). (Undesignated statutory references are to the Penal Code.) In
2022, defendant’s attorney petitioned to recall his sentence under section 1172.75 to
strike his one-year prison prior enhancement. The People agreed with the petition and
the court granted the request and ordered defendant’s sentence be modified accordingly.
In this appeal, defendant argues he was unconstitutionally deprived of his right to
be present at the resentencing hearing. The People agree. We agree the order should be
vacated and conclude the matter must be remanded for further proceedings consistent
with this opinion.
FACTUAL AND PROCEDURAL HISTORY
In 1992, a jury convicted defendant of second degree murder (§ 187, subd. (a))
and found true that he personally used a knife during the commission of the offense
(§ 12022, subd. (b).) Defendant admitted a prior conviction allegation. The court
sentenced defendant to 15 years to life on the murder conviction plus one year for the
knife-use enhancement and an additional year for the prison prior (§ 667.5, former subd.
(b)).
Defendant’s attorney petitioned for resentencing for him under section 1172.75 in
July 2022 using a form petition. She checked a box indicating “Defendant/Petitioner
waives resentencing hearing” and asked the court to modify the total term of 17 years to
life to 16 years to life by striking the section 667.5, former subdivision (b) prison prior
enhancement. On the same form, the People indicated they agreed with the petition and
to waive a hearing. Also on the same form, the court ordered “defendant’s sentence
recalled and resentenced pursuant to … § 1172.7 and/or 1172.75.”
2.
In September 2022, defendant filed a notice with the court stating no one from the
public defender’s office ever contacted him about petitioning for recall of his sentence.
However, in August 2022, he received a form signed by the judge indicating only his
one-year enhancement was presented and removed. He noted he previously told his
counsel his family members were willing to provide letters in support of resentencing and
his counsel was ineffective in failing to notify him of the petition.
DISCUSSION
I. Resentencing Proceedings Under Section 1172.75
Prior to January 1, 2020, section 667.5, former subdivision (b) provided for a one-
year sentence enhancement for each true finding on an allegation the defendant had
served a separate prior prison term and had not remained free of custody for at least five
years. (§ 667.5, former subd. (b).) Effective January 1, 2020, Senate Bill No. 136
(2019–2020 Reg. Sess.) (Senate Bill 136) amended section 667.5 by limiting the prior
prison term enhancement to only prior terms for sexually violent offenses. (§ 667.5, subd.
(b); Stats. 2019, ch. 590, § 1; People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
Enhancements based on prior prison terms served for other offenses became legally
invalid. (Jennings, supra, at p. 682.)
Later, in 2021, the Legislature enacted Senate Bill No. 483 (2021–2022 Reg.
Sess.) (Senate Bill 483). This bill explicitly made the changes implemented by Senate
Bill 136 retroactive. (Stats. 2021, ch. 728, § 1 [“it is the intent of the Legislature to
retroactively apply … Senate Bill 136 of the 2019–20 Regular Session to all persons
currently serving a term of incarceration in jail or prison for these repealed sentence
enhancements”].) It took effect on January 1, 2022, and added former section 1171.1,
now section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58,
§ 12.)
3.
Section 1172.75 states that “[a]ny sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense … is legally
invalid.” (§ 1172.75, subd. (a).) The statute further establishes a mechanism to provide
affected defendants a remedy for those legally invalid enhancements. Subdivision (b)
directs the Secretary of the California Department of Corrections and Rehabilitation
(CDCR) and the correctional administrator of each county to “identify those persons in
their custody currently serving a term for a judgment that includes an enhancement
described in subdivision (a) and … provide the name of each person, along with the
person’s date of birth and the relevant case number or docket number, to the sentencing
court that imposed the enhancement.” (§ 1172.75, subd. (b).) The statute provides this is
to be done in two groups. First, “[b]y March 1, 2022, for individuals who have served
their base term and any other enhancements and are currently serving a sentence based on
the [affected] enhancement.” (§ 1172.75, subd. (b)(1).) And second, “[b]y July 1, 2022,
for all other individuals.” (§ 1172.75, subd. (b)(2).)
After the trial court receives from the CDCR and county correctional administrator
the information included in subdivision (b) of section 1172.75, “the court shall review the
judgment and verify that the current judgment includes a sentencing enhancement
described in subdivision (a),” and if so, “recall the sentence and resentence the
defendant.” (§ 1172.75, subd. (c).) This part of section 1172.75 divides relief into two
parts. Specifically, the review and resentencing shall be completed “[b]y October 1,
2022, for individuals who have served their base term and any other enhancement and are
currently serving a sentence based on the [affected] enhancement” (§ 1172.75, subd.
(c)(1)) and “[b]y December 31, 2023, for all other individuals” (§ 1172.75, subd. (c)(2)).
When resentencing a defendant under section 1172.75, the court must “apply the
sentencing rules of the Judicial Council and apply any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate disparity of sentences and to
4.
promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) “The court may consider
postconviction factors, including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that reflects whether age,
time served, and diminished physical condition, if any, have reduced the defendant’s risk
for future violence, and evidence that reflects that circumstances have changed since the
original sentencing so that continued incarceration is no longer in the interest of justice.”
(§ 1172.75, subd. (d)(3).)
II. Analysis
Here, it is undisputed defendant neither appeared at his resentencing hearing nor
validly waived his right to do so in violation of his constitutional right to be present. That
is, a criminal defendant “has a constitutional right to be present at all critical stages of the
criminal prosecution, i.e., ‘all stages of the trial where his absence might frustrate the
fairness of the proceedings’ [citation].” (People v. Rodriguez (1998) 17 Cal.4th 253,
260.) Sentencing and resentencing proceedings qualify as critical stages in the criminal
process. (People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Basler (2022) 80
Cal.App.5th 46, 57.)
We review this deprivation of rights under the standard set forth in Chapman v.
California (1967) 386 U.S. 18. (People v. Cutting (2019) 42 Cal.App.5th 344, 348.)
“Under that standard, the error ‘may be deemed harmless only if we can conclude beyond
a reasonable doubt that the deprivation did not affect the outcome of the proceeding.’
[Citations.]” (Ibid.)
Here, aside from striking the prison prior enhancement at resentencing, the court,
if requested to do so, also had discretion to strike the one-year personal use enhancement
in furtherance of justice. (See People v. Jones (2007) 157 Cal.App.4th 1373, 1383
[confirming court’s authority to strike use of deadly weapon enhancement].) And the
public defender’s unilateral waiver of defendant’s presence from the resentencing hearing
5.
prevented defendant the opportunity to present additional information relevant to his
resentencing. Section 1172.75 does not limit the trial court to the record of appeal in
deciding how to resentence the defendant. Instead, the court may consider information
relating to the defendant’s prison conduct and rehabilitation efforts, as well as any
evidence bearing on his risk for future violence or whether his continued incarceration
would serve the ends of justice. (§ 1172.75, subd. (d)(3).) Because defendant would
have had the opportunity to offer favorable evidence on these factors if given the
opportunity to attend his resentencing hearing, we cannot conclude his absence from the
hearing was harmless beyond a reasonable doubt. Accordingly, the court’s order must be
vacated and the matter remanded.1 (People v. Cutting, supra, 42 Cal.App.5th at p. 350.)
DISPOSITION
The order striking the section 667.5, former subdivision (b) enhancement is
vacated. The matter is remanded for further proceedings consistent with this opinion.
1We note the parties do not contest the trial court’s jurisdiction to rule on the petition for
resentencing below. Notably, the record does not affirmatively establish the Secretary of the
California Department of Corrections and Rehabilitation and the county correctional
administrator identified defendant as a person in their custody currently serving a term for a
judgment that includes a now invalid section 667.5, subdivision (b) enhancement as required to
initiate proceedings pursuant to section 1172.75, subdivision (b). However, because our
disposition would be the same even if the court was without jurisdiction—to vacate and remand
the matter—for purposes of this opinion we will assume, without deciding, that the trial court
had jurisdiction to resentence defendant pursuant to section 1172.75.
6.