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Filed 3/21/23 P. v. Lopez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH KENNETH LOPEZ, JR.,

Defendant and Appellant.

A164096

(Sonoma County Super. Ct.

SCR5387451)

MEMORANDUM OPINION1

I.

Appellant was convicted by a jury of second degree murder, active 

participation in a criminal street gang, and unlawful possession of a 

semiautomatic firearm. The jury rendered true findings for firearms 

enhancements under Penal Code2 section 12022.53, subdivisions (b), (c), 

and (d), in connection with the murder conviction. The trial court imposed an 

aggregate sentence of a few months short of 44-years-to-life, composed of a 

15-years-to-life term for the count 1 murder conviction; plus a consecutive 

25-years-to-life term for the section 12022.53, subdivision (d) firearm 

enhancement; plus a consecutive determinate three-year upper term for the 

count 2 participation in a criminal street gang conviction; plus a consecutive 

1 We resolve this case by a memorandum opinion pursuant to the 

California Standards of Judicial Administration, section 8.1.

2 Undesignated statutory references are to the Penal Code.
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determinate eight-month term for the count 3 unlawful possession of a 

semiautomatic firearm conviction. It stayed sentence on the other 

enhancements.

In a prior appeal, we affirmed the convictions but remanded for 

resentencing in light of the intervening enactment of Senate Bill No. 620 

(2017–2018 Reg. Sess.) “to consider whether to strike some or all of the 

firearm enhancements imposed under section 12022.53.” (People v. Lopez

(Dec. 12, 2018, A129664) [nonpub. opn.] [2018 Cal.App.Unpub.LEXIS 8400].)

Rather than restate the factual and procedural background, we will assume 

familiarity with our prior opinion. In the resentencing proceeding on 

remand, the trial court declined to strike any of the enhancements. In this 

appeal, appellant argues that we should remand again because, even though 

the court refused to strike any of the enhancements, its silence on his 

alternative request for reduction of the enhancements indicates it was 

unaware it had the discretion to order such reductions. We are unpersuaded 

and will affirm.

II.

At the resentencing on remand, the trial court denied all relief. 

The court explained it was “wholly unpersuaded that the factors argued by 

the defense constitute[d] a basis . . . to exercise its discretion when considered 

against the overwhelming backdrop of factors to the contrary.” “The 

characterization of [appellant’s] conduct as mitigated and due to 

circumstances beyond his control [was] belied by the tonnage of information 

indicating otherwise.” “The conclusory leap made by the defense in the 

pleadings that . . . ‘if Joseph had been a little older and his brain had been 

more mature, this incident would never have happened,’ [was] pure 

speculation, completely without foundation, and directly contradicted by 

everything else known about [appellant] and the night in question.”
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“Without getting into the individual details of the murder,” which, the 

trial court noted, were “captured in the record on appeal, the facts of this

underlying case [were] horrendous and ha[d] left a deep and tragic scar on 

the survivors of the incident and the community at large.” The court took 

into consideration “[t]he cruel and callous nature of the murder, [appellant’s] 

continuing lack of remorse[,] . . . his violent criminal history, and his ongoing 

failures at rehabilitation” such as “his continued use of alcohol, . . . and his 

involvement in the Northern Structure prison gang, and as recently as April 

of [2020] . . . , his participation in a riot and a fight with another inmate.” 

In addition, the court noted, “the relevant rules of the court and the factors 

delineated therein, all . . . clearly demonstrate and indicate . . . that 

[appellant’s] background, character, and prospects do not warrant the soughtafter relief and striking the enhancements would not be in the interest of 

justice.”

The trial court observed that “[s]ociety receives maximum protection 

when the penalty, treatment or disposition of the offender is tailored to the 

individual case and proportional to the offense.” In appellant’s case, “that 

protection [was] afforded by imposition of the firearm enhancements found 

true by the jury.” Accordingly, the court denied the “invitation to strike” so 

that the “original sentence remain[ed] as imposed.”

Finally, the trial court explained it was “aware of Senate Bill [No.] 81

[(Reg. Sess. 2021–2022)] and its amendment to Penal Code [s]ection 1385.” 

“Due to the procedural posture of [appellant’s] case and the language in 

[section] 1385(c)(7) that [the statute would] go into effect in January of 2022,” 

the court was “of the opinion the changes to the law found in [section] 1385(c) 

[did] not and [would] not apply to this case.” “That having been said, to the 

extent any court on review [would] examine[] this record for findings at this 
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hearing related to amended provisions of [section] 1385,” the court made “the 

specific finding that for all the previously mentioned reasons for denying the 

request for relief . . . , dismissal of the enhancements would endanger public 

safety as defined under [section]1385.”

III.

Even if the trial court was unaware of its discretion to reduce 

appellant’s sentencing term, as appellant claims it was, remand is 

unnecessary if “ ‘the record shows that the trial court clearly indicated when 

it originally sentenced the defendant that it would not in any event have 

[reduced the] enhancement’ even if it had the discretion.” (People v. Franks

(2019) 35 Cal.App.5th 883, 892, quoting People v. McDaniels (2018) 

22 Cal.App.5th 420, 425.) We find that to be the case here. Contrary to 

appellant’s characterizations of the record, the trial court gave two clear 

indications that it would not reduce the enhancement terms. Specifically, the 

court (1) declined to strike any of the enhancements despite knowing the 

consequences of doing so; and (2) described its basis for doing so in terms that

illustrated its belief that a 25-year-to-life term for the section 12022.53, 

subdivision (d) enhancement was the precisely appropriate term.

Appellant nonetheless insists “it is not entirely clear that the trial court 

was aware that it had any discretion other than making the binary choice of 

either entirely striking the firearm enhancements or instead entirely leaving 

them in place.” According to appellant, “there was another option in the 

law,” permitting a trial court to substitute a lesser-included section 12022.53 

subdivision (b) or (c) firearm enhancement for a section 12022.53, 

subdivision (d) enhancement.” But while appellant’s focus on resentencing 

was striking of the enhancements in their entirely, he did request imposition 

of lesser enhancements as an alternative, citing People v. Morrison (2019) 

34 Cal.App.5th 217, 220–223, the principal case he now relies upon.
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At the time, there was a split of authority concerning whether trial 

courts have power to reduce sentencing enhancements under section 

12022.53, with Morrison and other cases taking the view that there is such 

authority, on the one hand, and People v. Tirado (2019) 38 Cal.App.5th 637,

643, reversed (2022) 12 Cal.5th 688, and other cases taking the view that

there is no such authority, on the other hand. Our Supreme Court has since

clarified the point, holding in Tirado, supra, 12 Cal.5th 688, that the

Morrison view is correct. But the fact the trial court here did not expressly 

rule on appellant’s alternative request is of no moment. Nothing in the 

record indicates it decided to follow the now disapproved view of the Court of 

Appeal in Tirado, supra, 38 Cal.App.5th 637. From its silence, we presume 

the court was aware of its discretion and exercised it accordingly. On this 

record, another remand would be futile. It is abundantly clear from the 

court’s comments that it was unimpressed by appellant’s case for mitigation, 

and that, if specially called upon to rule on a request for reduction of the 

enhancements, it would deny such relief. (People v. McVey (2018) 

24 Cal.App.5th 405, 419 [“In light of the trial court’s express consideration of 

the factors in aggravation and mitigation, its pointed comments on the 

record, and its deliberate choice of the highest possible term for the firearm 

enhancement, . . . remand in these circumstances would serve no purpose but 

to squander scarce judicial resources.”].)

DISPOSITION

Affirmed.

STREETER, J.

WE CONCUR:

BROWN, Acting P. J.

GOLDMAN, J.