THE PEOPLE, Plaintiff and Respondent, v. FERNANDO CARLOS LOPEZ, Defendant and Appellant.
D078841 (Super. Ct. No. INF1701983)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 5/10/22
CERTIFIED FOR PARTIAL PUBLICATION*
Dale R. Wells, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
I. INTRODUCTION
Defendant Fernando Carlos Lopez appeals from a judgment entered after a jury found him guilty of premeditated attempted murder, assault with a semiautomatic firearm, and being a felon in possession of a firearm. In challenging his convictions, Lopez raises two related contentions. First, Lopez argues that the trial court abused its discretion in denying his motion for mistrial. Lopez contends that the prosecution was permitted to elicit information from a witness that suggested that Lopez was a member of a gang, and that the prosecutor‘s comments about this evidence during closing arguments implied that Lopez was a gang member, all of which violated a pretrial ruling prohibiting evidence linking Lopez to a gang. Lopez argues in the alternative that the court‘s decision to admit what Lopez refers to as “gang evidence” was an abuse of discretion under
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Lopez and Gabriel A., who are cousins, lived near each other in Coachella. On the morning of November 4, 2017, Lopez and Gabriel drove to the home of a friend of Gabriel‘s mother.2 The friend was not home, so they decided to visit another cousin, Gilbert R., in Indio.
According to Gilbert‘s testimony at trial,3 when Lopez and Gabriel arrived, all three men used methamphetamine. Gabriel testified that only Gilbert and Lopez “started doing lines [of methamphetamine].” Gabriel had brought some cigarettes. Lopez wanted to smoke the last one, but Gabriel refused to give Lopez the cigarette. Lopez seemed upset that Gabriel did not want to give Lopez his last cigarette. Gabriel testified that he thought that he and Lopez “ended up sharing the last [cigarette].”
Gabriel went out to the front yard and began to water the lawn. As he was watering the lawn, he heard a loud noise and his ears started to ring. He bent over and “grabbed the back of [his] head“; he “knew something was wrong.” Gabriel recognized the sound as a gunshot.
Gabriel turned around and saw Lopez standing and “fumbling with” a nine-millimeter semi-automatic handgun; Gabriel was familiar with guns and recognized the type of firearm that Lopez was holding. The gun appeared to be jammed.
Gabriel took off running to a nearby house where he knocked on the door. No one answered. In the meantime, Gilbert had come to the front of the house after having heard a loud noise that sounded “like a pop.” Gilbert and Lopez “were actually trying to get [Gabriel] to come back” to Gilbert‘s house, but Gabriel refused, telling Gilbert that Lopez had shot him.
Gabriel ran to another house but there was no answer at that house, either. Gabriel then saw a vehicle pull into the driveway of a third house, and he ran there to seek assistance. Someone at that house called the police.
When police and paramedics arrived at the scene, Gabriel was sitting on a curb holding a towel to the back of his head. A “substantial amount of blood [was] coming down from his head and neck area.” Gabriel gave a responding detective a false name; Gabriel was concerned that there might be an outstanding warrant for his arrest because he was on parole and had failed to attend required drug classes. Gabriel told a detective that someone in a red car had driven by and shot him.
Gabriel was transported to a hospital. The detective arrived at the hospital to speak with him further. While at the hospital, Gabriel repeated his story about being the victim of a drive-by shooting and told the detective that he did not want the shooter to be prosecuted. In the meantime, the detective had learned that Gabriel had given him a false name, and he believed that he knew Gabriel‘s real name. The detective confronted Gabriel with this information. Gabriel admitted that he had lied to the detective because he was afraid that there was “a parole hold on him.”
When the detective asked Gabriel who had shot him, Gabriel asked for a notepad and pen. According to the detective, Gabriel appeared to be “a little reluctant, seemed a little frightened.” Gabriel wrote down Lopez‘s name on the piece of paper; he did not want anyone to hear him say Lopez‘s name because he was “scared” and “afraid of retaliation.” He expressed that he was reluctant to press charges and “needed to think about it.” At trial, Gabriel testified that part of his reason for initially lying about the incident was because he was scared to be labeled a “rat” or a “snitch[ ].” He explained that the people in his neighborhood, including some gang members, tend to avoid talking to the police.
B. Procedural background
An information filed in January 2018 charged Lopez with willful, deliberate, and premeditated attempted murder (
On October 7, 2020, a jury convicted Lopez on all three counts. The jury found true the allegations regarding Lopez‘s use of a firearm and the infliction of great bodily injury. In a bifurcated court trial, the court found true that Lopez had suffered a prior “strike” conviction and a prior serious felony conviction (
The trial court sentenced Lopez to prison for an indeterminate term of 39 years to life, plus a determinate term of 11 years. The 39-years-to-life term consisted of a term of 14 years to life with respect to count 1, plus an additional 25 years to life for the related firearm enhancement; the determinate term consisted of an upper term of 6 years with respect to count 3, and a consecutive term of 5 years with respect to the serious felony enhancement.
Lopez filed a timely notice of appeal.
III. DISCUSSION
A. The trial court did not abuse its discretion in denying Lopez‘s motion for mistrial
Lopez contends that the trial court erred in denying his motion for mistrial, which was based on the ground that the prosecutor introduced “gang evidence” at trial and made references to this evidence during closing argument, in violation of a pretrial ruling that such evidence would be excluded.
1. The ruling on the motions in limine
Prior to trial, Lopez filed a motion in limine requesting that any gang evidence be excluded. The prosecution filed a motion in limine seeking the admission of evidence regarding Lopez‘s association with a gang; according to the prosecution, the case involved gang-related matters.
During argument on the issue, the prosecutor contended that evidence regarding Lopez‘s gang involvement was admissible to explain why Gabriel initially lied to the police about who had shot him. The trial court ruled that gang evidence would be excluded on the ground that such evidence was more prejudicial than probative under
Later, the trial court held an
2. The evidence elicited at trial
The evidence elicited at trial demonstrated that Gabriel initially provided police with a false story about the circumstances of the shooting, stating that it had been a drive-by shooting and that he did not know who had shot him. Gabriel explained that he gave police the false story because he was worried about being labeled a “rat” or a “snitch[ ].” Gabriel was permitted to explain that people in his neighborhood, which included gang members, do not like the police and are not cooperative with them. When asked why he had been afraid to identify Lopez as the shooter when he was being questioned at the hospital, Gabriel testified, over a defense motion to strike, that he had been afraid “because I know what type of person he is.”
3. Closing arguments and the motion for mistrial
During closing arguments, the prosecutor commented on Gabriel‘s testimony regarding his reluctance to tell police the truth about the shooting:
“He told us about his walk of life, living in the streets as he put it. He told us about how cooperating with law enforcement when you‘re one of the people in this sort of community who lives in the streets will put him at risk of physical harm. It‘s kind of the code of the streets that he be labeled as a rat.
“It‘s kind of like the phrase most of us have heard snitches get stitches. Kind of told us about that walk of life. He came in here and told [it] like it was. He told us about his familial relationship with the defendant, Mr. Lopez, them being cousins, that they grew up together. That he has known Mr. Lopez his entire life. That he was close to his cousin. Close until that one day. Close until November 4th, 2017, when the defendant shot him.”
The prosecutor also specifically addressed Gabriel‘s false story:
“But that statement was also in front of other people. People from the community, people from his family right in front of as – [Gabriel] referred to him Gibby, Gilbert . . . as he‘s being interviewed by Detective Longoria.
“We heard from [Gabriel] that his family and friends in that sort of community don‘t want anything to do with law enforcement or their sort of business, that his family and friends are in gangs, that by testifying or cooperating with law enforcement puts your life in danger. This is a guy who was just shot in the back of the [head]. His life is already in danger at this point. And his concern about his life continuing to be in danger, how is that not reasonable in that situation? Then he goes to the hospital. At the hospital he does give Detective Longoria his real name. And he does tell the truth about what occurred.”
After the prosecutor concluded his argument, Lopez‘s attorney moved for a mistrial, arguing that the prosecutor had “described the neighborhood as gang related or gang infested or gang influenced,” which, he contended, violated the trial court‘s pretrial ruling regarding the limitation as to what would be a permissible reference to gangs. The trial court denied the motion, stating, “[T]he ruling was that they were not to draw a line between defendant and gangs, and they didn‘t. He didn‘t.” Lopez‘s attorney continued to argue that the prosecutor‘s comments implied that Lopez was a gang member, but the court reiterated that it had ruled that there could be no reference to the shooting having been in retaliation for Gabriel dropping out of a gang, or to Lopez‘s gang membership; the court determined that the prosecutor‘s comments had not violated either prohibition.
4. Analysis
We review a trial court‘s ruling on a motion for a mistrial for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573.) ” ’ “[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” ’ ” (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Lopez‘s argument with respect to the purported “gang evidence” is based on the premise that “the evidence and argument of the prosecutor regarding gangs went beyond what was permissible under the trial court‘s pretrial ruling.” Lopez contends that the trial court ruled pretrial that the prosecution could not link Lopez to a gang, and that despite this ruling, “[t]he jury obviously learned Lopez had gang connections.” According to Lopez, “[t]he only reasonable inference the jury could make from [Gabriel‘s] testimony about ‘rats’ and ‘snitches,’ gang members in the neighborhood, and [Gabriel] knowing ‘what type of person [Lopez] is,’ [citation], was that Lopez had gang connections.” We disagree with the premise of Lopez‘s argument.
The trial court‘s pretrial ruling was that Gabriel could explain that he did not want the police involved because he had family members and friends who were involved in a gang, but that the prosecutor could not link Lopez to a gang. The evidence that the prosecutor elicited from Gabriel was consistent with the trial court‘s ruling. Further, the prosecutor‘s comments about Gabriel‘s explanation as to why he initially gave a false story to police similarly hewed to the trial court‘s ruling. None of the statements made by Gabriel, and none of the prosecutor‘s comments about Gabriel‘s story, linked Lopez to a gang. Nor did this evidence imply that Lopez was a gang member and that it was Lopez‘s gang membership that caused Gabriel to be fearful of him. Gabriel testified that there were gang members in his neighborhood, generally. This does not suggest that Lopez is a gang member; in fact, one could reasonably infer from this testimony that Lopez was not in a gang, given the mention of there being gang members in both the neighborhood and in Gabriel‘s family, and no testimony suggesting that Lopez was in a gang. Further, Gabriel‘s reference to knowing “what type of person” Lopez is did not suggest that Lopez is a gang member. Rather, as the facts of the case demonstrate, Lopez is the “type of person” who would shoot someone in the back of the head over an argument about a cigarette. Thus, this comment from Gabriel, even in the context of the generic references to knowing that there were gang members in his neighborhood, did not suggest that Lopez was a gang member.
The trial court reasonably concluded that the evidence elicited from Gabriel and the prosecutor‘s comments about this evidence did not suggest a connection between Lopez and a gang, and that the evidence and the prosecutor‘s comments about the evidence were consistent with the trial court‘s pretrial in limine ruling. Given our conclusion that there was no violation of the trial court‘s pretrial ruling, there could not have been incurable prejudice to Lopez. Thus, the trial court clearly did not abuse its discretion in denying Lopez‘s motion for mistrial.5
B. The trial court did not abuse its discretion in allowing the prosecutor to elicit evidence, including a reference to gangs, to explain why Gabriel initially provided a false story to police
In a second, related argument, Lopez contends that the trial court abused its discretion in not prohibiting all references to gangs or gang members at trial. He argues that “the trial court‘s pretrial ruling was not sufficiently broad and should have excluded all references to gangs to avoid undue prejudice to Lopez and a fundamentally unfair trial.” According to Lopez, the trial court‘s ruling permitting Gabriel to discuss gangs in the context of explaining why he initially provided police with a false story constituted an abuse of discretion under
Under
We review a trial court‘s evidentiary rulings for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.)
It is clear that the trial court did not abuse its discretion in ruling that evidence regarding Gabriel‘s understanding that his neighbors, and even his friends and family, some of whom were affiliated with gangs, would not approve of him cooperating with police, was more probative than prejudicial under
Further, there was no prejudice to Lopez from the admission of Gabriel‘s explanation for his initial false story, even if that explanation included an oblique reference to gangs. Lopez‘s argument regarding prejudice arising from the admission of the purported “gang evidence” connected to Gabriel‘s explanation of his false story to police rests on the same faulty presumption that his argument regarding the denial of his motion for a mistrial rested: Lopez presumes that Gabriel‘s reference to there being gang members in his neighborhood and family was the equivalent of evidence linking Lopez to a gang.6 However, as we have previously explained, we disagree with the suggestion that the jury would conclude that Lopez was a gang member as a result of Gabriel‘s testimony that some people in his neighborhood and family were affiliated with gangs. Because we reject the presumption that Gabriel‘s testimony regarding why he initially provided a false story to police linked Lopez to a gang, we also reject Lopez‘s argument that the trial court should have concluded that such evidence was more prejudicial than probative under
C. Changes to sentencing laws that took effect while this case was pending
At the time Lopez was sentenced, the trial court had broad discretion to determine whether imposition of the lower, middle, or upper term with respect to count 3 “best serve[d] the interests of justice.” (Former
While Lopez‘s appeal was pending, the Governor signed Senate Bill No. 567 (Stats. 2021, ch. 731), which made significant changes to
With respect to the first of these contentions as to why remand is unnecessary, the People assert that Lopez cannot demonstrate that the fact that the new law did not apply to Lopez at the time of sentencing was prejudicial because, according to the People, the record demonstrates that a jury would have found true, beyond a reasonable doubt, the aggravating factors on which the trial court relied in selecting the upper term with respect to count 3.9
We agree with the People‘s contention that where a sentencing factor must be found true by a jury beyond a reasonable doubt and the court fails to submit that factor to the jury, the error in the court‘s reliance on that fact may be subject to harmless error review as to whether the lack of a finding by the jury was prejudicial: ” ‘Failure to submit a sentencing factor to the jury, like failure to submit an element [of the crime] to the jury, is not structural error.’ [Citation.] Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18 . . . . [Citation.] . . . The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ (Neder [v. United States (1999)] 527 U.S. [1,] 19 . . .)” (People v. French (2008) 43 Cal.4th 36, 52–53 (French), fn. omitted.)
In order to conclude that the trial court‘s reliance on improper factors that were not found true by a jury or admitted by Lopez was not prejudicial, we
We also reject the People‘s suggestion that we need not remand for resentencing because the trial court relied on at least one permissible factor—i.e., a factor related to Lopez‘s record of prior convictions—that does not require an admission or a true finding under the amended version of the statute. Pursuant to subdivision (b)(3) of
On remand, the People may elect to proceed under the requirements of the newly-amended version of
In a separate supplemental brief, Lopez contends that he is entitled to resentencing pursuant to the revised version of
IV. DISPOSITION
Lopez‘s convictions are affirmed; his sentence is vacated. On remand, with respect to count 3, the People may elect to proceed by meeting the requirements of the amended version of
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.