93 Cal.App.5th 1110
Cal. Ct. App.2023Background:
- In 2017 Lopez was convicted of first‑degree murder, attempted murder, shooting at an occupied vehicle, and unlawful possession of a firearm; gang enhancements were found true on every count and various prior/weapon enhancements were alleged.
- On direct appeal (2020) this court struck some enhancements, stayed one sentence, and conditionally reversed only as to sentencing, remanding the case for the trial court to consider striking a prior serious‑felony enhancement and any firearm enhancements.
- On remand in October 2022 the trial court struck the prior serious‑felony enhancement but refused to strike firearm enhancements and resentenced Lopez to 101 years to life.
- Lopez argued at resentencing that post‑judgment statutory amendments effective January 1, 2022 (notably A.B. 333 revising Penal Code §186.22 and S.B. 567 amending sentencing and §1385 standards) applied and, under A.B. 333, the gang enhancement to count 5 lacked sufficient evidence.
- The Court of Appeal held (published part) that A.B. 333 is retroactive to nonfinal judgments, but because the appellate remittitur limited the trial court to resentencing the sentence only, the trial court lacked jurisdiction to relitigate the gang enhancement on remand; the unpublished parts reject Lopez’s claims about imposition of the upper term and refusal to strike firearm enhancements under amended §1170 and §1385 and affirm the judgment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.B. 333 (amending §186.22) applies and whether the gang enhancement to count 5 is unsupported | A.B. 333 should not apply because the conviction was final after the 2020 remittitur; trial court correctly denied A.B. 333 relief | A.B. 333 is ameliorative and applies to nonfinal judgments; under the new standards the gang enhancement to count 5 is unsupported | A.B. 333 is retroactive to nonfinal cases, but because the appellate remand was limited to resentencing the trial court lacked jurisdiction to revisit the gang enhancement, so nothing the trial court could do on remand; judgment affirmed on this point |
| Whether S.B. 567/§1170 prohibits imposition of the upper term on count 5 absent jury findings or defendant stipulation | The court could impose the upper term because the judge may rely on certified records of prior convictions and related facts | The upper term required jury findings or a valid stipulation; counsel’s failure to object amounted to ineffective assistance | The claim was preserved; §1170 permits judge consideration of prior convictions via certified records. The court erred only in relying on the probation report rather than a certified record, but the error was harmless |
| Whether the trial court abused discretion under amended §1385 in refusing to strike firearm enhancements (multiple enhancements rule) | The court properly exercised discretion and considered public‑safety and culpability factors; dismissal is not mandatory simply because multiple enhancements exist | §1385(c)(2)(B) makes dismissal mandatory when multiple enhancements are alleged (absent public‑safety concern) | Dismissal is conditioned on the court’s conclusion that dismissal is in the interest of justice; the trial court reasonably found refusal to strike was warranted (two victims and high culpability), so no abuse of discretion |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (presumption that ameliorative statutes apply to convictions not yet final)
- People v. McKenzie, 9 Cal.5th 40 (Cal. 2020) (no judgment of conviction without a sentence; finality assessed for the prosecution as a whole)
- People v. Esquivel, 11 Cal.5th 671 (Cal. 2021) (finality for retroactivity turns on whether the criminal proceeding as a whole has concluded)
- People v. Padilla, 13 Cal.5th 152 (Cal. 2022) (discusses effect of vacatur/resentencing on finality and limits on relitigation of guilt)
- People v. Renteria, 13 Cal.5th 951 (Cal. 2022) (explains A.B. 333’s narrowed gang definition and additional elements for gang enhancements)
- People v. Anderson, 88 Cal.App.5th 233 (Cal. Ct. App. 2023) (explains that §1385’s use of “shall” in subparts is conditioned on the court finding dismissal is in the furtherance of justice)