P. v. Lopez

Filed 3/3/20 P. v. Lopez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JORDAN LOPEZ,
Defendant and Appellant.
B297119
(Los Angeles County
Super. Ct. No. SA070283)
APPEAL from an order of the Superior Court of
Los Angeles County, Kathryn A. Solorzano, Judge. Affirmed.
Robert Derham, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Acting
Assistant Attorney General, Amanda V. Lopez and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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Defendant and appellant Jordan Lopez challenges the trial
court’s denial of his petition for resentencing under Penal Code
section 1170.95.1 The trial court found that Lopez was ineligible
for relief because he pleaded no contest to attempted murder,
and the statute allows for resentencing only of those convicted
of murder. We agree and thus affirm.
FACTS AND PROCEEDINGS BELOW
In 2010, Lopez pleaded no contest to one count of attempted
murder, in violation of sections 187 and 664. He admitted that
he committed the offense for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)), and that a principal used a firearm in
the commission of the offense. (§ 12022.53, subds. (c) & (e).) The
trial court imposed a sentence of 29 years in prison, consisting of
the high term of nine years for attempted murder, plus 20 years
for the firearm enhancement.
We described the facts of the case in an earlier opinion
in which we affirmed Lopez’s conviction and denied his habeas
petition: “On February 3, 2009, around noon, Joel Becerra’s
car was parked on Venice Boulevard near Cattaraugus. Becerra
was removing items from the trunk of his car, and he noticed
two young men near the corner looking at him. One of the men,
later identified as Hansel Machuca, was wearing a dark-colored
hoodie; the other man, later identified as [Lopez], was taller
and not wearing a hoodie. After a few moments, the man in the
hoodie, Machuca, approached Becerra. Machuca asked Becerra
for his gang affiliation. Becerra responded that he did not belong
to a gang, and Machuca pulled out a black gun. Becerra ran
1 Unless otherwise specified, subsequent statutory
references are to the Penal Code.

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across Venice Boulevard in an attempt to escape, and he heard
two shots. One went through his chest. Becerra did not get a
good look at the person who shot him.” (People v. Lopez (Sept. 29,
2011, B225481) [nonpub. opn.].)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.), which eliminated liability for murder
under the natural and probable consequences doctrine. (People
v. Lopez (2019) 38 Cal.App.5th 1087, 1092–1093 (Lopez), review
granted Nov. 13, 2019, S258175.) The legislation also enacted
section 1170.95, which establishes a procedure for vacating
murder convictions that were based upon the natural and
probable consequences doctrine and resentencing those who
were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
In January 2019, Lopez filed a petition in the superior
court for resentencing under section 1170.95. At a hearing on
March 11, 2019, the trial court summarily denied Lopez’s petition
on the ground that “Senate Bill [No.] 1437 does not apply to
attempted murder.”
DISCUSSION
Lopez contends that the trial court erred in denying
his petition. He argues that interpreting section 1170.95 as
applying to murder but not attempted murder is irrational,
contrary to the Legislature’s intent, and a violation of the state
constitutional prohibition against cruel or unusual punishment.
He also contends that, to the extent the text of the law is
ambiguous, the rule of lenity requires us to construe it in his
favor. We find no merit in these arguments.
The natural and probable consequences doctrine provides
that “ ‘[a] person who knowingly aids and abets criminal conduct
is guilty of not only the intended crime [target offense] but also of

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any other crime the perpetrator actually commits [nontarget
offense] that is a natural and probable consequence of the
intended crime.’ ” (People v. Medina (2009) 46 Cal.4th 913, 920.)
“ ‘By its very nature, aider and abettor culpability under the
natural and probable consequences doctrine is not premised upon
the intention of the aider and abettor to commit the nontarget
offense because the nontarget offense was not intended at all. It
imposes vicarious liability for any offense committed by the direct
perpetrator that is a natural and probable consequence of the
target offense.’ ” (People v. Chiu (2014) 59 Cal.4th 155, 164.)
The Legislature enacted Senate Bill No. 1437 “to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1(f), p. 6674;
see People v. Martinez (2019) 31 Cal.App.5th 719, 723.) The
legislation amended section 188 to require that “in order to
be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3); Stats. 2018, ch. 1015, § 2, p. 6675; In re R.G. (2019)
35 Cal.App.5th 141, 144.)2 As a result, the natural and probable
consequences doctrine can no longer be used to support a murder
2 The new law also amended section 189 by adding a
requirement to the felony-murder rule that a defendant who
was not the actual killer or a direct aider and abettor must have
been a “major participant” in the underlying felony who acted
with reckless indifference to human life. (Stats. 2018, ch. 1015,
§ 3, p. 6675.) This aspect of the new law is not relevant here.

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conviction. (Lopez, supra, 38 Cal.App.5th at p. 1103 & fn. 9;
Stats. 2018, ch. 1015, § 1(f), p. 6674.)
The legislation also enacted section 1170.95 to allow those
previously convicted of murder under a natural and probable
consequences theory to petition the court to have their murder
convictions vacated and to be resentenced. (§ 1170.95, subds. (a)
& (e); Stats. 2018, ch. 1015, § 4, pp. 6675–6677.) A petitioner is
eligible for resentencing if three conditions apply: (1) A charging
document “was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine[;] (2) The
petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea . . . ; [and] (3) The petitioner
could not be convicted of first or second degree murder because
of changes to Section 188 or 189” made by Senate Bill No. 1437.
(§ 1170.95, subd. (a).)
Lopez is ineligible for relief under the plain text of
section 1170.95 because he fails to meet the second of these
three requirements: He was not convicted of first or second
degree murder. Although they are closely related, “[m]urder
and attempted murder are separate crimes.” (Lopez, supra,
38 Cal.App.5th at p. 1109, citing People v. Marinelli (2014) 225
Cal.App.4th 1, 5 [“[i]t is well established that ‘ “[a]n attempt is
an offense ‘separate’ and ‘distinct’ from the completed crime” ’ ”].)
The remainder of the text of Senate Bill No. 1437 confirms
that the limitation of section 1170.95 was not an oversight—
the Legislature intended the law to apply exclusively to cases
of murder. The law states that “[t]here is a need for statutory
changes to more equitably sentence offenders in accordance with
their involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b),

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p. 6674, italics added.) The Legislature acted “to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1(f), p. 6674,
italics added.) This is not a situation where “ ‘resolution of the
statute’s ambiguities in a convincing manner is impracticable,’ ”
and we must apply the rule of lenity to interpret the law in the
defendant’s favor. (People v. Avery (2002) 27 Cal.4th 49, 58.) We
agree with every court that has considered the question and hold
that defendants convicted of attempted murder are ineligible for
relief under section 1170.95. (See Lopez, supra, 38 Cal.App.5th
at pp. 1104–1105; People v. Munoz (2019) 39 Cal.App.5th
738, 754–755; People v. Medrano (2019) 42 Cal.App.5th 1001,
1016-1018; People v. Larios (2019) 42 Cal.App.5th 956, 968–969.)
Lopez argues that our interpretation of section 1170.95
is incorrect because it would yield an irrational result in which
defendants convicted of murder are punished less severely than
those convicted of attempted murder. He relies on People v. King
(1993) 5 Cal.4th 59, in which our Supreme Court held that laws
providing a benefit to juvenile defendants convicted of murder
must be interpreted as providing the same benefit to attempted
murderers, even though the literal text of the statutes indicates
otherwise. (Id. at pp. 69–70.) The Court cited the principle that
“ ‘ “language of a statute should not be given a literal meaning
if doing so would result in absurd consequences which the
Legislature did not intend.” ’ ” (Id. at p. 69.) But as the court
noted in Lopez, the anomalous sentencing provisions in King
occurred because a series of unrelated statutes and Supreme
Court decisions worked together in a way the Legislature had not

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considered. (See Lopez, supra, 38 Cal.App.5th at pp. 1106–1107.)
“Here, in contrast, we are not dealing with amendments of
different statutes in separate codes at different times leading
to an unintended result, but a single piece of legislation in which
the Legislature unequivocally elected, both in the words it chose
and its statement of purpose, to provide a benefit to one category
of aiders and abettors prosecuted under the natural and probable
consequences doctrine—those facing the lengthiest prison
sentences—and not to others.” (Id. at p. 1107.)
Lopez also contends that People v. Barrajas (1998)
62 Cal.App.4th 926 supports his position. In that case, the
court held that section 1000, which allows defendants convicted
of certain drug offenses to enter a diversion program, also applies
to those convicted of attempting to commit a predicate offense,
even though the statute made no provision for attempts. (People
v. Barrajas, supra, at p. 929 & fn. 3.) But section 1000 applies
to several different offenses, most of which involve the simple
possession or use of illegal drugs. (See § 1000, subd. (a).) It
is not difficult to imagine that the Legislature would neglect
to consider and separately provide for the attempt to commit
those offenses. Section 1170.95, by contrast, involves a single
offense, murder. When the Legislature means for a law to
apply to attempted murder, it explicitly says so in the text of
a statute. (See, e.g., § 246.1, subd. (a) [law requiring forfeiture
of a vehicle used in a crime applies to attempted murder],
§ 667.5, subd. (c)(12) [defining attempted murder as a violent
felony], § 2932, subd. (a)(1) [loss of credit for good behavior for
committing attempted murder in prison].)
Nor is the Legislature’s exclusion of attempted murderers
from the benefits of section 1170.95 irrational. As the court

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explained in Lopez, “the gap between a defendant’s culpability
in aiding and abetting the target offense and the culpability
ordinarily required to convict on the nontarget offense is greater
in cases where the nontarget offense is murder, than where
the nontarget offense is attempted murder or, in the prosecutor’s
discretion, aggravated assault. The Legislature could have
reasonably concluded reform in murder cases ‘was more crucial
or imperative.’ ” (Lopez, supra, 38 Cal.App.5th at p. 1112.) Given
the limited resources available for handling resentencing cases,
the Legislature may have decided to make relief available only to
murder cases. (See ibid.)
Finally, Lopez argues that the exclusion of attempted
murder from eligibility for relief under section 1170.95 violates
the state constitutional prohibition against “[c]ruel or unusual
punishment.” (Cal. Const., art. I, § 17.) He relies on People v.
Schueren (1973) 10 Cal.3d 553 (Schueren), in which our Supreme
Court held that imposing a longer sentence on a defendant
convicted of a lesser included offense than he would have received
if he had been found guilty as charged constituted unusual
punishment under article I, section 17. (See Schueren, supra,
at pp. 559–560.) But Schueren does not apply to the denial of
postconviction relief. As the court in People v. Smith (2015)
234 Cal.App.4th 1460 explained when affirming the denial of a
petition for resentencing under Proposition 36, “[u]nder the laws
then in effect, defendant received a valid indeterminate sentence.
There was nothing unusual about his sentence, as it was not one
‘that in the ordinary course of events is not inflicted.’ ” (People v.
Smith, supra, at pp. 1468–1469.) The Legislature’s passage of a
law making a procedure for resentencing available to
other defendants that is not available to Lopez “does not

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retroactively convert defendant’s otherwise lawful sentence
into a constitutionally ‘unusual’ one under Schueren.” (Id.
at p. 1469.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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