73 Cal.App.5th 327
Cal. Ct. App.2021Background
- In 2007 three murders occurred (Robinson in March; Grant and Lexing in July) in 18th Street gang territory; ballistic evidence linked the murders.
- An FBI informant recorded conversations in which Lopez and co-defendant Gustavo Guzman discussed committing the shootings; that led to charges.
- Lopez was tried for three counts of first-degree murder, one sale of methamphetamine, multiple firearm enhancements, gang enhancements (§ 186.22), and two special circumstances (§ 190.2). The death penalty was sought but the jury imposed life without parole plus firearm and gang-related enhancements.
- Lopez appealed, raising: insufficiency of evidence for one firearm enhancement (Lexing), instructional error on aiding-and-abetting mental state, erroneous admission of traffic-stop evidence, improper exclusion of third-party culpability evidence, and cumulative error.
- After briefing, Lopez invoked Assembly Bill 333 (amending § 186.22) and argued its ameliorative changes apply retroactively to vacate gang-based enhancements and related special circumstances.
- The Court of Appeal affirmed convictions but vacated the gang enhancement findings, the gang-related special-circumstance allegations, and the § 12022.53(e) gang-based firearm enhancements, and remanded for further proceedings under the amended law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for § 12022.53(d) enhancement (Lexing) | Evidence showed Lopez personally and intentionally discharged a firearm or, at minimum, his discharge proximately caused Lexing’s death (proximate-cause theory). | No evidence showed Lopez — as opposed to Guzman — fired the fatal shot; enhancement must be vacated. | Upheld. Proximate-cause instruction allowed the jury to find Lopez’s own discharge proximately caused Lexing’s death given both defendants fired into the car. |
| Request to modify murder-degree instruction for aider-and-abettor mental state | Instructions given adequately required the aider-and-abettor’s own mental state and premeditation to convict of first-degree murder. | Court should have given proposed modification clarifying that an aider-and-abettor must have known and intended the principal’s willful, deliberate, and premeditated killing. | No error. Court’s instructions read as a whole required the aider-and-abettor to have the necessary mental state for first-degree murder. |
| Suppression challenge to admission of evidence about a post-shooting traffic stop | Stop was unlawful because the deputy’s recollection was unreliable; facts of the stop (and occupants) should have been suppressed. | Deputy testified headlights were off at ~3 a.m.; trial court credited her and denial of suppression was supported by substantial evidence. | No error. Deference to trial court’s credibility findings; evidence supports that headlights-off provided lawful basis for the stop. |
| Exclusion of third-party culpability evidence (.45 and .40 caliber incidents; Glen McNeil) | Evidence linking same firearms or other suspects raised reasonable doubt and should have been admitted. | Proffered evidence did not directly link any specific third party to these murders; at best it showed remote opportunity or use of the same weapon at different times. | No error. Court properly excluded evidence that lacked direct or circumstantial linkage to the actual perpetrators. |
| Cumulative error claim | Errors in combination deprived Lopez of a fair trial. | Individual rulings were correct; no cumulative prejudicial error. | Rejected. No individual errors found, so no cumulative error. |
| Effect of Assembly Bill 333 (amendments to § 186.22) and retroactivity | New, narrower gang definition and added elements apply retroactively; gang enhancements and related findings must be vacated and remanded. | People conceded retroactivity but argued existing record could sustain enhancements under new law. | Held retroactive. Vacated § 186.22 gang enhancements, the § 190.2(a)(22) gang special-circumstance findings, and the § 12022.53(e) gang-based firearm findings; remanded for the People to retry or seek resentencing consistent with the amended statute. (Separate § 12022.53(d) findings for personal discharge remained intact where applicable.) |
Key Cases Cited
- People v. Bland, 28 Cal.4th 313 (2002) (defines proximate causation for firearm enhancement under § 12022.53(d))
- People v. Botello, 183 Cal.App.4th 1014 (2010) (contrast where no evidence showed which co-defendant fired the fatal shot)
- People v. Chiu, 59 Cal.4th 155 (2014) (aider-and-abettor conviction for first-degree premeditated murder requires knowledge and intent to facilitate a premeditated killing)
- People v. Daveggio & Michaud, 4 Cal.5th 790 (2018) (knowledge of an intent to kill typically implies at least brief deliberation and premeditation)
- People v. Tully, 54 Cal.4th 952 (2012) (appellate deference to trial court findings and credibility determinations at suppression hearings)
- People v. Turner, 10 Cal.5th 786 (2020) (standards for admissibility of third-party culpability evidence—must point to a specific third party and link to the crime)
- In re Estrada, 63 Cal.2d 740 (1965) (ameliorative statutory changes presumptively apply retroactively when judgment is not final)
- People v. Figueroa, 20 Cal.App.4th 65 (1993) (defendant may obtain benefit of enhancement statute change that adds elements when case is pending on appeal)
- People v. Ramos, 244 Cal.App.4th 99 (2016) (defendant has jury-trial right to have jury determine all elements of enhancements)