Filed 2/9/ 24 P. v . Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. RAUL LOPEZ, Defendant and Appellant. H050284 (Monterey County Super. Ct. No. SS091855B)

MEMORANDUM OPINION 1 Defendant Raul Lopez appeals from the denial of a petition for resentencing under former Penal Code section 1170.95 (now section 1172.6). (All subsequent undesignated statutory references are to the Penal Code.) The trial court determined that Lopez failed to make a prima facie case for relief based upon the preliminary hearing transcript in the underlying criminal pro secution. Lopez argues that the trial court erred in conside ring the preliminary hearing transcript and in concluding based on that transcript that he failed to make a prima facie case for relief . The Attorney General concedes that the trial court
erred in concluding that Lopez failed to make out a prima facie cas e , and we accept that
concession.

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1 (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853

- 855.)2

In November 2009, Lopez and his codefendant Jorge Luis Meza Ruiz were charged with a murder for the benefit of a criminal street gang. In February 2013, pursuant to a plea agreement, the prosecution amended the information to add counts of voluntary manslaughter (§ 192, subd. (a)) and street terrorism (§186.22, subd. (a))

. With respect t o the voluntary manslaughter count, the amended information alleged gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12021.5, subd. (b)). Lopez pleaded guilty to the voluntary manslaughter and street terrorism charges as well as admitting the gang
and firearm enhancements. The trial court imposed a stipulated sentence of 25 years on the voluntary manslaughter count with a three

- year sentence on the street terrorism stayed pursuant to section 654. In March 20 2 2, Lopez petitioned for resentencing un der Senate Bill No. 1437 (2017

- 1018 Reg. Sess.) ( SB 1437) on the ground that he was n ot the actual killer and did not have an intent kill, and he h ad been charged with murder u nder a natural and probable consequences theory. Effective January 1, 2019, SB 1437 amended the felony murder rule and the natural and probable consequence doctrine “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 unde rlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) In addition to amending two homicide

statutes ( id ., §§ 2

- 3 [amending sections 188 and 189] ) , SB 1437 added what is now section 1172.6, which allow s convicted murderers to obtain retroactive relief based on SB
1437’s restrictions on murder convictions. ( People v. Lewis (2021) 11 Cal.5th 952, 959 ( Lewis ) .) In 2021, the Legislature amended this provision , “[c]larif[ying] that persons
who were convict ed of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those person s convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a). )3

U nder section 1172.6, a person convicted of manslaughter may petition to vacate
his or her conviction and to be resentence d if three conditions are satisfied: (1) the complaint, information , or indictment filed against the petitioner “allowed the prosecution to proceed under a theory of . . . murder under the natural and probabl e consequences doctrine”; (2) the petitioner was convicted of murder, attempted murder or manslaughter at trial or “accepted a ple a offer in lieu of trial in which the petitioner could have been convicted of murder or attempted murder”; and (3) the petitioner “could not presently be convicted of murder or attempted murder because of changes to Section 188
or 189” made in SB 1437. (§ 1172.6, subd. (a).) If the petition contains adequate information (§ 1172.6, subd. (b)), the trial court will hold a hearing to determine “whether the petitioner has made a prima facie case for relief.” (§ 1172.6. subd. ( c ).) If the petitioner does so, the trial court will issue a show cause order and conduct a hearing to determine whether to vacate the conviction in question and resentence the petitioner on the remaining counts. (§ 1172.6, subd. (d).) In determining whether a prima facie case for r elief has been made, trial courts

may examine t he record of conviction. ( Lewis , supra , 11 Cal.5th at p. 9 71.) B ecause the purpose of the prima facie inquiry is “to distinguish petitions with potential merit from those that are clearly meritless,” the sho wing needed to satisfy prima facie requirement is

“ ‘ very low.’ ” (

Id . at p p

. 971

- 97 2 .) T rial court s may find that a petitioner failed to make out a prima facie case for relief if the record of conviction shows that the jury was not
asked to convict the petitioner under a theory barred by SB 1437 (see, e.g., People v.
Daniel (2020) 57 Cal.App.5th 666, 677 , review granted February 24, 2021, S266366, review dismissed December 1, 2021 ) or t hat the jury necessarily found the petitioner guilty on a theory that remains viable under SB 1437. (See, e.g., People v. Medrano (2021) 68 Cal.App.5th 177, 182

- 184; People v. Farfan (2021) 71 Cal.App. 5 th 942, 956

- 957.) However, in determining whether a conviction was based on a theory barred by SB 1437 at the prima facie stage, trial court s may not engage in factfinding; instead, they4

must assume that the petitioner’s factual allegations are correct an d determine “ ‘

“ whether the petitioner would be entitled to relief if his or her factual allegations were proved. ” ’ ” (

Lewis , supra , 11 Cal.5th at p. 971.) Lopez satisfied this standard. As noted above, t he petition alleges t hat Lopez was
not the actual killer , that he did not have an intent to k ill, and that he was charged with murder under a natural and possible consequences theory

. T hese allegations satisfy the requirements for relief under s ection 1172.6 . They allege that (1) Lopez was charge d
with “murder under the natural and probable consequences doctrine” (§ 1172.6,
subd. (a)(1)) ; (2) he accepted a plea offer in lieu of a trial in which he “could have been convicted of murder” (§ 1172.6, subd. (a)(2)) ; and (3) he “could not presently be

co nvicted of murder” after SB 1473 (§ 1172.6, subd. (a)(3)). Nor does the record of conviction refute the petition’s allegations. There does not appear to be any transcript of the plea colloquy and thus no evidence that Lopez conceded to being the actual killer or having the intent now required under SB 1473 for murder. In addition, e ven if the evidence presented at the preliminary hearing may be considered part of the record of conviction

— an issue that the Supreme Court is currently considering in Peopl e v. Patton (2023 ) 89 Cal.App.5 th 649, review granted
June 28, 2023 , S279670 )

— it does n ot preclude the possibility that Lopez was prosecuted under a natural and probable consequences theory. The testimony at the preliminary hearing identified Ruiz, not Lopez, as the person who shot the victim

. In addition, while
other evidence showed that Lopez and Ruiz were gang members , that Lopez took h is brother’s truck to drive with Ruiz the night of the murder, and that the person shot was wearing colors associated with a rival gang , the record from the preliminary hearing does not conclusively establ ish that Lopez intended to kill the victim or knew that Ruiz would do so. Consequently, it is quite plausible that the prosecution sought to prove Lopez guilty of murder on the then

- permissible ground that he intended to aid and abet Ruiz in assaulting th e victim and the natural and probable consequence s of that assault was the5

victim’s death. (See People v. Prettyman (1996) 14 Cal.4th 248, 262.) Indeed, in opposing a motion to dismiss, the prosecution invoked the natural and probabl e
consequence s doctri ne, noting that “[a]n aider and abettor is guilty of both the intended crime and the natural and probable consequence of the crime,” and asserting that “ [e]ven if Lopez did not know the full extent of Ruiz[ ’ s] intentions, he is liable for the natural and

p ossible consequences of what he thought Ruiz’s action were to be[, ] whether assault or simple confrontation.” The trial court appears to have been unaware that the prosecution invoked a natural probable consequences theory

. In concluding that Lopez fail ed to make out a prima facie case, the court stated that “[t]here was no testimony, no argument, no evidence that the People were proceeding under a natural and probable consequence theory . . . .” Th is mistake is understandable. In opposing Lopez’s peti tion for resentencing, the prosecution stated that “within the prosecution’s closing comments [at the preliminary hearing] there is no mention made of felony murder or of the doctrine of
natural and probable consequences” without acknowledging that the pro secution invoked the doctrine in briefing three months after the preliminary hearing

. Indeed, in direct contradiction to that briefing, the prosecution represented that there was “no ‘target offense’ for which felony murder or murder by natural and probab le consequences can attach.” Now, however, the Attorney General has conceded that defendant “has made a prima facie showing of eligibility, and he is entitled to an evidentiary hearing.”
D ISPOSITION The judgment is reversed, and this case is remanded with direction s to issue an order to show cause and conduct an evidentiary hearing under section 1172.6,
subdivision (d)(3). We express no opinion as to how the se ntencing court should rule upon conducting the evidentiary hearing.____________________________ BROMBERG, J.

WE CONCUR:

____________________________________ BAMATTRE

- MANOUKIAN, ACTING P.J.

____________________________________ DANNER, J.

People v. Lopez H050284