People v. Lopez CA4/2

Opinion

Filed 2/8/21 P. v. Lopez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075505

v. (Super.Ct.No. PEF04225)

JOHN LOPEZ, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

In June 1997, a woman who was six months pregnant was on the shoulder of a

road, trying to push her car while steering through her open driver’s door. A truck driven

by defendant and appellant John Lopez, Jr., sideswiped the car, killing the woman and

1 her unborn child. Defendant’s three-year-old son was riding unsecured in the truck but

was not injured. Defendant’s preliminary blood-alcohol test results were 0.204 percent

and 0.195 percent.

A jury found defendant guilty of two counts of murder (Pen. Code, § 187, counts 1

& 2), causing bodily injury of another while driving under the influence (Veh. Code,

§ 23153, subd. (a), count 3), causing bodily injury of another while driving with a blood-

alcohol content of 0.08 percent or more (Veh. Code, § 23153, subd. (b), count 4), and

endangering a child in circumstances likely to cause great bodily injury (Pen. Code,

§ 273a, subd. (a), count 5). Defendant pled guilty to count 6, driving with a suspended or

revoked license. (Veh. Code, § 14601.2, subd. (a).)

In August 1998, the court sentenced defendant to four years in state prison for the

child endangerment conviction (count 5), a term of 15 years to life on count 1 to run

consecutive to count 5, and a term of 15 years to life on count 2, to run concurrently. As

to counts 3 and 4, the court imposed but stayed pursuant to Penal Code1 section 654 two-

year terms for each conviction, and defendant received 365 days of credits that fulfilled

the sentence of one year in county jail for the misdemeanor count of driving without a

license.

In 2018, the Legislature enacted section 1170.95 (Stats. 2018, ch. 1015, § 4, eff.

Jan. 1, 2019), a provision that authorizes a person convicted of felony murder or murder

1 All further statutory references are to the Penal Code.

2 under a natural and probable consequences theory to file with the sentencing court a

petition to vacate the conviction and be resentenced.

On January 22, 2019, defendant filed a section 1170.95 petition for resentencing.

Defendant was not present but was represented by counsel on July 17, 2020, when the

petition was denied on the grounds that defendant was the actual murderer. Defendant

appealed, and this court appointed counsel to represent him.

DISCUSSION

Defendant’s counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, that sets forth

statements of the case and facts, and requests this court to independently review the entire

record on appeal. We offered defendant an opportunity to file a personal supplemental

brief, which he has done.

In a handwritten letter, defendant contends he was convicted on an incorrect

charge, that his motion for a new trial should not have been denied, and that his section

1170.95 petition should have been granted. He also states that he is sober and has served

his sentence and suggests he should be released.

We do not address the merits of defendant’s claims concerning the charges upon

which he was convicted or the denial of his motion for a new trial. The time for seeking

review of those issues has long since passed. (Cal. Rules of Court, rule 8.308(a) [an

appeal must be brought within 60 days after rendition of the judgment].)

3 We affirm the trial court’s denial of defendant’s section 1170.95 petition for

resentencing because defendant was the sole and direct cause of the death of the pregnant

woman and her unborn child. By its terms, section 1170.95 applies only to convictions

obtained by employment of the felony murder doctrine or the natural and probable

consequences doctrine. (§ 1170.95, subd. (a).) The statute does not apply here because

defendant’s conviction was not based upon either of those doctrines. Defendant cites

People v. Lopez (2019) 38 Cal.App.5th 1087, in support of his claim that the court erred

when it denied his resentencing petition. That case is inapposite because the two murder

convictions involved there were obtained using the theories of aider and abettor liability

under the natural and probable consequences theory. (Id. at p. 1092.)

Defendant’s suggestion that he should be released because he is sober, remorseful,

and has served his sentence is not a matter before this court. To the extent, if any, that

there is an issue concerning defendant’s suitability for release, it is a matter to be raised

with the Department of Corrections and Rehabilitation.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

4 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

MILLER J.

FIELDS J.