Filed 3/18/22 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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.

ENRIQUE NUNEZ LOPEZ,

Defendant and Appellant.

 H047254

 (Monterey County

 Super. Ct. No. SS121859B)

In 2014, a jury convicted petitioner Enrique Nunez Lopez of second degree 

murder under a natural and probable consequences theory, among other crimes. We 

affirmed Lopez’s convictions on direct appeal (People v. Lopez (May 31, 2018, 

H042227) [nonpub. opn.]) (case No. H042227). Subsequently, the Legislature enacted 

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which eliminated natural and probable

consequencesliability for murder. Senate Bill No. 1437 also enacted Penal Code

section 1170.95,

1 which permits a person convicted of murder under certain theories, 

including natural and probable consequences, to petition the sentencing court to have his 

or her murder conviction vacated and to be resentenced on any remaining counts. 

In 2019, Lopez sought resentencing undersection 1170.95. The trial court issued 

an order to show cause but denied the petition after an evidentiary hearing, concluding 

that the prosecution had carried its burden to prove beyond a reasonable doubt that Lopez 

could still be convicted of murder under current law on an implied malice theory.

1 All further statutory citations are to the Penal Code unless otherwise indicated.
2

On appeal from that denial, Lopez raised a number of claims, including that the

trial court had incorrectly applied a sufficiency of the evidence standard in denying his 

petition. In a prior opinion, we agreed with Lopez that section 1170.95 requires the 

prosecutor to prove beyond a reasonable doubt each element of first or second degree 

murder under current law in order to establish ineligibility for section 1170.95 relief. But 

we concluded that the trial court had properly applied that standard. We rejected Lopez’s 

other claims for relief and affirmed. 

The California Supreme Court granted review (February 10, 2021, S265974). 

While the matter was pending in the Supreme Court, the Legislature amended

section 1170.95. (Stats. 2021, ch. 551, § 2; Senate Bill No. 775.) The Supreme Court

transferred the matter back to this court with directions to vacate our original opinion and 

reconsider the cause in light of Senate Bill No. 775. The parties have filed supplemental 

briefs. (Cal. Rules of Court, rules 8.528(f), 8.200(b).) Having reconsidered the cause in 

light of Senate Bill No. 775, we affirm.

I. BACKGROUND

A. Factual Summary2

In 2012, Lopez, then a member of the Sureño gang La Esperanza Trece (Espe), 

accused fellow gang member Daniel “Frosty” Fraga of being “no good” at a gang 

meeting. The meeting was attended by about 10 Espe members, including Juan 

Salazar, Jr. According to a number of Espe members, at Lopez’s urging, the gang held a 

vote to determine whether Frosty was no good, meaning he could be killed by members 

of Espe. There was some disagreement among the Espe witnesses as to the outcome of 

the vote. Three testified that the group decided Frosty was no good. Two testified that 

the majority agreed Frosty was no good but that no final decision was made, either 

2 We take the facts from our prior opinion in case No. H042227, where they are set 

forth more fully. On our own motion, we take judicial notice of that prior opinion. 

(Evid. Code, §§ 452, subd. (d), 459.)
3

because they were awaiting proof or because only gang members in county jail can 

decide whether a person is no good. And two testified there was no vote; however, one 

of those witnesses (Lopez’s brother) admitted having told police that the group had 

decided to kick Frosty out of the gang because he was no good. A gang expert testified 

that every Sureño and every member of the Mexican Mafia has an obligation to kill 

former Sureños who they know have been deemed no good.

Later on the day of the no-good vote, Frosty—accompanied by his friend Hector 

“Osito” Reyes—confronted Lopez at the home of Salazar’s girlfriend. Lopez, Salazar, 

and the other Espe members who had participated in the no-good vote were hanging out

there. A fight broke out. It began when Frosty punched Lopez. Lopez’s brother, known 

as Dodger, came to Lopez’s defense. When a gang member known as Shadow tried to 

break up the fight, Osito hit him in the head with the butt of a gun. Osito also hit Dodger 

in the head with the gun several times, inflicting an injury that required surgical staples. 

Lopez was stabbed in the arm during the fight. He and Dodger fled the house. Shadow 

ended up in the bathroom with Osito, who was still armed with a gun, and Frosty, who 

had a pair of scissors. Shadow was able to escape the bathroom unharmed and fell to the 

floor in the hall outside the bathroom. Salazar fatally shot Frosty and Osito from the 

hallway outside the bathroom, a distance of about nine feet from where their bodies were 

found. Frosty suffered three gunshot wounds; Osito suffered six or seven gunshot 

wounds. Some of each victim’s gunshot wounds had a downward trajectory, which the 

forensic pathologist who performed the autopsies opined demonstrated that the victims 

were bending over or on the floor when they sustained those wounds.

B. Procedural History

The Monterey County District Attorney charged Salazar and Lopez with two 

counts of murder each (counts 1-2; § 187, subd. (a)) and with the substantive offense of 

active participation in a criminal street gang (count 6; § 186.22, subd. (a)). They also 

were charged with battery with serious bodily injury (count 3; § 243, subd. (d)); assault 
4

with force likely to produce great bodily injury (count 4; § 245, subd. (a)(4)); and child 

abuse (count 5; § 273a, subd. (a)) arising out of the “checking” of a 17-year-old member 

of the gang as punishment for dating a Norteño.3 Gang enhancement allegations were 

attached to counts 1 through 5.

A jury trial took place in August and September 2014. Salazar’s defense to the 

murder charges was that he acted in self-defense or in defense of another, Shadow. 

The jury rejected those defenses and convicted Salazar of first degree murder of Frosty 

and Osito. Salazar was convicted on all of the other charges as well, and jurors found 

true the gang allegations.

At trial, the prosecutor argued that Lopez was guilty of the murders as an aider and 

abettor on the theory that the murders were the natural and probable consequence of the 

substantive gang offense (and specifically of Lopez’s actions surrounding the no-good 

vote). Jurors failed to reach a verdict as to count 1, which charged Lopez with Osito’s 

murder; the court declared a mistrial as to that count. The jury convicted Lopez of 

second degree murder of Frosty and found true the gang allegation attached to that count. 

The jury also found Lopez guilty of counts 3 through 6 and found true the gang 

allegations attached to counts 3 through 5.

The trial court sentenced Lopez to 22 years to life in prison. In a prior opinion, we 

affirmed Lopez’s convictions on direct appeal (case No. H042227).

Lopez filed a section 1170.95 petition on February 5, 2019. The trial court 

appointed the public defender to represent Lopez. The prosecutor conceded that Lopez 

had made a prima facie showing of entitlement to relief but opposed his petition on the 

ground that he could be convicted of murder under current law. The case proceeded to 

the hearing stage. No new evidence was admitted. Rather, the prosecutor argued that the 

3 “Checking”—a 13-second beating of a gang member by fellow gang members—

is a common form of discipline in Sureño gangs.
5

trial evidence proved Lopez’s guilt of second degree murder under an implied malice 

theory. Lopez’s counsel contended that the evidence failed to prove that Lopez’s act of 

calling for the no-good vote was a proximate cause of Frosty’s death or that Lopez acted 

with implied malice.

On September 5, 2019, the trial court denied the petition, stating that the People 

had carried their burden “to show beyond a reasonable doubt that [Lopez] could still be 

convicted of murder under the current statute,” namely implied malice murder. In 

reaching that conclusion, the court expressed the view that Lopez “certainly . . . would 

know” that “calling a meeting with associates and saying, [‘]Hey, I think, you know, so 

and so is no good[’] . . . meant [that] individual was basically marked for death.”

Lopez timely appealed.

II. DISCUSSION

A. Legal Principles

Prior to the enactment of Senate Bill No. 1437, “an aider and abettor [was not

required to] personally possess malice, express or implied, to be convicted of second

degree murder under a natural and probable consequencestheory.” (People v.

Gentile (2020) 10 Cal.5th 830, 847 (Gentile).) Indeed, “ ‘the mens rea of the aider and

abettor with respect to [the nontarget] offense [was] irrelevant [because] culpability [was]

imposed simply because a reasonable person could have foreseen the commission of the

nontarget crime.’ [Citation.]” (People v. Chiu (2014) 59 Cal.4th 155, 164, superseded by 

statute as stated in People v. Lewis (2021) 11 Cal.5th 952, 959, fn. 3 (Lewis).)

Effective January 1, 2019, Senate Bill No. 1437 amended section 188 to provide 

that, outside the context of felony murder, “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.” (Stats. 2018, ch. 1015, § 2.) “The 

natural and probable consequences doctrine is incompatible with this requirement . . . .” 
6

(Gentile, supra, 10 Cal.5th at p. 847.) Accordingly, our Supreme Court has concluded 

that “Senate Bill 1437 eliminates natural and probable consequencesliability for murder

regardless of degree.” (Id. at pp. 847-848.)

Senate Bill No. 1437 also enacted section 1170.95, subdivision (a), which permits

a person convicted of murder under a natural and probable consequences theory to 

petition the sentencing court to have his or her murder conviction vacated and to be 

resentenced on any remaining counts. Undersection 1170.95 as it was originally

enacted, a person was entitled to section 1170.95 relief if, among other things, he or she

“could not be convicted of first or second degree murder” following the enactment of

Senate Bill No. 1437.4(Former § 1170.95, subd. (a)(3).)

In the immediate wake of the enactment of section 1170.95, the Courts of Appeal 

were split as to the meaning of “could not be convicted of first or second degree murder,”

as that phrase was used in former section 1170.95, subdivision (a)(3). Some courts read 

that phrase as importing the substantial evidence standard into section 1170.95. (See 

People v. Garcia (2020) 57 Cal.App.5th 100, 115, review granted Feb. 10, 2021, 

S265692, transferred to the Court of Appeal Dec. 29, 2021, with directions to vacate its 

decision and reconsider the cause in light of Lewis, supra, 11 Cal.5th 952 and Senate Bill 

No. 775 [concluding that petition at issue failed to make prima facie showing because 

“substantial evidence support[ed] a murder conviction based on a direct aiding and 

abetting theory”]; People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted 

Jan. 13, 2021, S265309, transferred to the Court of Appeal Nov. 23, 2021, with directions 

to vacate its decision and reconsider the cause in light of Senate Bill No. 775 [holding

that, at the evidentiary hearing phase, “the prosecution must . . . prove . . . that a

reasonable jury could find the defendant guilty of murder with the requisite mental state 

4 Section 1170.95 has since been amended and subdivision (a)(3) now provides: 

“The petitioner could not presently be convicted of murder or attempted murder because 

of changes to Section 188 or 189 made effective January 1, 2019.” 
7

for that degree of murder”].) This court rejected that approach, instead concluding in our 

prior opinion in this case that, at the evidentiary hearing stage, the prosecutor bears the 

burden to prove beyond a reasonable doubt the elements of first or second degree murder 

under the current law. Some other courts took the same approach. (See People v.

Rodriguez (2020) 58 Cal.App.5th 227, 230-231, review granted March 10, 2021, 

S266652, transferred to the Court of Appeal Dec. 22, 2021, with directions to vacate its 

decision and reconsider the cause in light of Senate Bill No. 775; People v.

Duchine (2021) 60 Cal.App.5th 798.) 

The Legislature resolved the issue with the passage of Senate Bill No. 775, which 

“[r]eaffirms that the proper burden of proof at a resentencing hearing under this section is 

proof beyond a reasonable doubt.” (Stats. 2021, ch. 551, § 1, subd. (c).) As amended by 

Senate Bill No. 775, section 1170.95, subdivision (d)(3) states in relevant part: “At the 

hearing to determine whether the petitioner is entitled to relief, the burden of proof shall 

be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of

murder or attempted murder under California law as amended by the changes to

Section 188 or 189 made effective January 1, 2019. . . . A finding that there is substantial

evidence to support a conviction for murder, attempted murder, or manslaughter is

insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.”

Senate Bill No. 775 made other changes to section 1170.95 as well. In particular, 

it “[c]larifie[d] that persons who were convicted of attempted murder or manslaughter

under a theory of felony murder and the natural probable consequences doctrine are

permitted the same relief as those persons convicted of murder under the same theories.” 

(Stats. 2021, ch. 551, § 1, subd. (a).) It “[a]ddresse[d] what evidence a court may

consider at a resentencing hearing . . . .” (Stats. 2021, ch. 551, § 1, subd. (d).) It added 

subdivision (g) to section 1170.95, which provides that “[a] person convicted of murder 

. . . whose conviction is not final may challenge on direct appeal the validity of that 
8

conviction based on the changes made to [s]ections 188 and 189 by Senate Bill 1437.” 

And it “[c]odifie[d] the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970 ,

regarding petitioners’ right to counsel and the standard for determining the existence of a

prima facie case.” (Stats. 2021, ch. 551, § 1, subd. (b).) 

B. The Trial Court Applied the Required Beyond a Reasonable Doubt 

Standard at the Evidentiary Hearing

Lopez argues that the trial court applied the incorrect legal standard when it denied 

his petition. In his view, the trial court applied the substantial evidence standard of 

review, denying his petition based merely on the existence of sufficient evidence to 

support a murder conviction. For that argument, he relies on the trial court’s ruling that 

the People met their burden “to show beyond a reasonable doubt that [Lopez] could still 

be convicted of murder . . . .” But that statement provides no support for Lopez’s 

position, as the trial court merely used the statutory language, which does not convince us 

that the court misapplied the law.

To the contrary, the record persuades us that the trial court applied the proper 

standard. First, the parties correctly argued below that the trial court could deny the 

petition only if it found that the elements of second degree implied malice murder had 

been proved beyond a reasonable doubt. Specifically, the prosecutor argued that the 

petition should be denied because “Lopez is guilty of second-degree murder” because his 

acts were the proximate cause of Frosty’s death and because Lopez acted with reckless 

indifference to human life. And the prosecutor urged the trial court to “find that Lopez 

acted with a reckless indifference to human life when he organized a criminal street gang 

meeting for the sole purpose of having Fraga determined to be no-good.” The prosecutor

did not ask the court to apply the substantial evidence standard. Lopez’s trial court brief 

asserted that the pertinent question was “whether the facts show beyond a reasonable 

doubt that, with implied malice, Lopez caused the death of Frosty.” At the hearing, 

Lopez’s counsel framed the question as “whether or not implied malice was proven 
9

beyond a reasonable doubt.” Neither the prosecutor nor the trial court took issue with 

defense counsel’s characterization of the applicable legal standard.

Second, the trial court’s statements at the hearing indicate that it applied the 

correct standard. The court concluded that the elements of implied malice murder “were 

satisfied with the evidence that was brought out during the trial, and of course, I was the 

trial judge.” As to Lopez’s mens rea, the court stated that trial testimony showed that 

Lopez knew that voting Frosty “no good” meant Frosty “was basically marked for death.” 

The foregoing statements show that the court understood it was required to find the 

elements of murder had been proved, not find merely that there was sufficient evidence 

from which some hypothetical jury could make such findings. Moreover, the trial court 

referenced the beyond-a-reasonable-doubt standard of proof and never used the words 

“substantial evidence,” “sufficient evidence,” or made any other indication that it was 

applying a sufficiency of the evidence standard.

C. Sufficiency of the Evidence Supporting the Trial Court’s Ruling

Next, Lopez challenges the denial of his petition on grounds of insufficient 

evidence. He says the evidence showed neither that his acts were the proximate cause of 

Frosty’s death, nor that he acted with the requisite mens rea. 

1. Legal Principles and Standard of Review

“[S]econd degree murder . . . is ‘the unlawful killing of a human being with malice 

aforethought but without the additional elements, such as willfulness, premeditation, and 

deliberation, that would support a conviction of first degree murder.’ [Citation.] Malice 

may be either express (as when a defendant manifests a deliberate intention to take away 

the life of a fellow creature) or implied. [Citation.] ‘Malice is implied when the killing is 

proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, 

which act was deliberately performed by a person who knows that his conduct endangers 

the life of another and who acts with conscious disregard for life.’ ” [Citation.]’ ” 
10

(People v. Cravens (2012) 53 Cal.4th 500, 507.) Our Supreme Court has “ ‘interpreted

implied malice as having “both a physical and a mental component. The physical 

component is satisfied by the performance of ‘an act, the natural consequences of which 

are dangerous to life.’ [Citation.] The mental component is the requirement that the 

defendant ‘knows that his conduct endangers the life of another and . . . acts with 

conscious disregard for life.’ [Citation.]” ’ [Citation.]” (People v. Soto (2018) 4 Cal.5th 

968, 974.)

Of course, “ ‘[a]n element of [any] homicide is that the defendant’s criminal act or 

omission be the proximate cause of the death. [Citation.]’ [Citation.]” (Zemek v.

Superior Court (2020) 44 Cal.App.5th 535, 552; CALCRIM No. 520 [listing “The 

defendant committed an act that caused the death” as an element of implied malice 

murder].) An act “causes death if the death is the direct, natural, and probable 

consequence of the (act/[or] failure to act) and the death would not have happened 

without the (act/[or] failure to act). A natural and probable consequence is one that a 

reasonable person would know is likely to happen if nothing unusual intervenes. . . . 

[¶] [There may be more than one cause of death. (An act/[or] (A/a) failure to act) causes 

death only if it is a substantial factor in causing the death. A substantial factor is more 

than a trivial or remote factor. However, it does not need to be the only factor that causes 

the death.]” (CALCRIM No. 520.) “ ‘[A]n “independent” intervening cause will absolve 

a defendant of criminal liability.’ ” (People v. Cervantes (2001) 26 Cal.4th 860, 871

(Cervantes).) An independent intervening cause is “ ‘ “unforeseeable[,] . . . an 

extraordinary and abnormal occurrence, which rises to the level of an exonerating, 

superseding cause.” ’ ” (Ibid.) By contrast, a dependent intervening cause—one that 

“ ‘ “is a normal and reasonably foreseeable result of defendant’s original act” ’ ”—does 

not relieve the defendant of criminal liability. (Ibid.)

As discussed above, we review sufficiency of the evidence challenges to

judgments of conviction for substantial evidence. The same standard applies to the 
11

review of post judgment orders, such as section 1026.5 orders extending state hospital 

commitments (People v. Crosswhite (2002) 101 Cal.App.4th 494, 507-508) and orders 

denying resentencing undersection 1170.18 (Proposition 47) (People v. Sledge (2017) 

7 Cal.App.5th 1089, 1096). But Lopez urges us to apply an independent standard of 

review, which he says applies to the review of orders based on findings “made by a 

postconviction trial court based upon review of transcripts.” He argues that no deference 

to the trial court’s factual findings is appropriate because “the trial court primarily 

reviewed this Court’s [prior] opinion and the probation report” and did not rely on the 

“credibility of live witnesses.”

We are not persuaded. As noted above, the substantial evidence standard of 

review is not reserved for the review of jury findings; it has been applied to postjudgment 

orders involving judicial factfinding. Furthermore, the record does not support Lopez’s 

contention that the trial court relied primarily on documentary evidence. Rather, in 

making her factual findings, the trial court judge referenced witness testimony as to the 

meaning of a no-good determination and trial evidence more generally, noting that she 

“was the trial judge.” While the trial court judge noted that she also reviewed this court’s 

prior decision, the parties’ briefs, the probation reports, and “some of [her] notes at the 

time and that [she] made . . . in preparation of sentencing,” the record as a whole 

demonstrates that she made her findings based on the trial evidence, which she observed 

firsthand. We shall apply the substantial evidence standard of review.

2. There is Sufficient Evidence of Proximate Causation

Lopez argues there was insufficient evidence that his acts surrounding the no-good 

vote were the proximate cause of Frosty’s death because Frosty’s attack and Salazar’s 
12

premeditated shooting constituted independent intervening causes which absolved him of 

any liability for Frosty’s death.5

To reiterate, an independent intervening cause is “ ‘ “unforeseeable[,] . . . an 

extraordinary and abnormal occurrence, which rises to the level of an exonerating, 

superseding cause.” ’ ” (Cervantes, supra, 26 Cal.4th at p. 871.) By contrast, “ ‘ “[i]f an 

intervening cause is a normal and reasonably foreseeable result of defendant’s original 

act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve 

defendant of liability.[6] [Citation.] ‘[ ] The consequence need not have been a strong 

probability; a possible consequence which might reasonably have been contemplated is 

enough. [ ] The precise consequence need not have been foreseen; it is enough that the 

defendant should have foreseen the possibility of some harm of the kind which might 

result from his act.’ [Citations.]” ’ ” (Ibid.)

Substantial evidence supports the trial court’s implied finding that Frosty’s act of 

starting a physical fight with Lopez was a dependent intervening cause. At trial, three 

5 Lopez couches this argument as an attack on the sufficiency of the evidence of 

implied malice. However, it is more accurately characterized as a challenge to the 

sufficiency of the evidence of proximate causation and we treat it as such. As noted, 

implied malice and proximate causation are distinct elements of implied malice murder. 

Cervantes, supra, 26 Cal.4th at p. 872, the case on which Lopez relies, involved a 

challenge to the sufficiency of the evidence of the “element of proximate causation.”

6

In his supplemental posttransfer brief, Lopez argues that the “reasonably 

foreseeab[le] part of the intervening cause analysis has been eliminated by S.B. 1437, 

S.B. 775 and § 1170.95, because it imputes liability to a defendant without a subjective 

appreciation of the risk of death.” We disagree. “[F]oreseeability is an important 

component of causation . . . .” (People v. Fiu (2008) 165 Cal.App.4th 360, 372.) Indeed, 

CALCRIM No. 520 states that an act “causes death if the death is the direct, natural, and 

probable consequence of the act.” That language, “requiring . . . death to be a direct, 

natural, and probable consequence of a defendant’s act necessarily refers to consequences 

that are reasonably foreseeable.” (Fiu, at p. 372.) Senate Bill No. 1437 did not remove 

the concept of foreseeability from the legal definition of causation merely by eliminating 

natural and probable consequences liability for murder. 
13

Espe members and the gang expert each testified that a gang member who is accused of 

being no good would be expected to confront his or her accuser. The gang expert 

testified that the ensuing confrontation would be “violent,” involving a fistfight and, in 

some instances, weapons. The trial court reasonably could have inferred from the 

foregoing testimony that Frosty’s attack was a normal and reasonably foreseeable result 

of Lopez’s acts of accusing Frosty of being no good and urging the gang to deem him no 

good.7

Substantial evidence likewise supports the trial court’s implied finding that 

Salazar’s act of shooting Frosty was a dependent intervening cause. The gang expert 

testified at trial that a gang member who has been deemed no good is “marked for death” 

and that every Sureño has an obligation to kill him. Six Espe members testified that 

someone who has been deemed no good can be killed by their former fellow gang 

members. Only Lopez’s brother hedged on that point. And he admitted telling police 

that being no good could get you killed. The trial court reasonably could have concluded 

based on the foregoing testimony that Lopez “ ‘ “should have foreseen the possibility” ’ ”

of Frosty being killed by a member of Espe as the result of his actions surrounding the 

no-good vote. (Cervantes, supra, 26 Cal.4th at p. 871.) 

In his posttransfer reply brief, Lopez argues that Salazar could not have been 

acting on the no-good determination because Frosty had not in fact been deemed no 

good, either because the determination was under investigation or because he had 

successfully challenged Lopez. This argument was not raised in any prior brief, here or 

in the trial court. Accordingly, it has been waived. It also lacks merit. The expert opined 

7 This implied finding arguably was compelled by the jury’s verdict. As we noted 

in our decision on direct appeal, “[i]n reaching [its] verdict, . . . the jury must have 

concluded that Frosty’s act of starting a physical fight with Lopez was not ‘ “ ‘an 

extraordinary and abnormal occurrence.’ ” ’ (Cervantes, supra, 26 Cal.4th at p. 871.)” 

(People v. Lopez, supra, H042227.)
14

based on the totality of the evidence that Frosty had been declared no good, not that an 

investigation was ongoing. Moreover, even if the evidence might support a finding that 

Frosty’s no-good status was pending, substantial evidence supports the trial court’s 

implied findings that Frosty had been deemed no good and that Salazar acted on that fact.

We reject Lopez’s argument that our prior opinion in his direct appeal in any way 

“preclude[d] a finding that Salazar’s shooting of Frosty was reasonably foreseeable.” 

On direct appeal, Lopez argued that his trial counsel rendered ineffective assistance by 

persuading the trial court not to give the jury manslaughter verdict forms. We rejected

that claim, reasoning that there was no evidence from which a reasonable jury could have 

concluded that it was reasonably foreseeable that Salazar would kill Frosty in a heat of 

passion, thereby committing voluntary manslaughter for which Lopez could be liable 

under a natural and probable consequences theory. We did not conclude that a deliberate 

killing by Salazar (or any other Espe member) based on the no-good order was 

unforeseeable.

Cervantes, on which Lopez relies, is distinguishable. In Cervantes, the defendant 

was “a member of a street gang, who perpetrated a nonfatal shooting that quickly 

precipitated a revenge killing by members of an opposing street gang.” (Cervantes,

supra, 26 Cal.4th at p. 863.) Our Supreme Court reversed the defendant’s conviction for 

second degree murder under the provocative act doctrine, finding insufficient evidence of 

proximate causation. The court reasoned that “the actual murderers were not responding 

to defendant’s provocative act”; they “ ‘intend[ed] to exploit the situation created by 

[defendant], but [were] not acting in concert with him,’ a circumstance that is ‘normally 

held to relieve the first actor [defendant] of criminal responsibility.’ ” (Id. at pp. 872-

874.) Here, the People have never advanced a provocative act theory of murder. More 

significantly, there was evidence in this case from which a trier of fact could have 

concluded that Salazar killed Frosty in response to the no-good vote (which Lopez 

instigated). And, unlike in Cervantes, here Salazar and Lopez were in the same gang, so 
15

it was not the case that Salazar was exploiting a situation created by Lopez without acting 

in concert with him.

In his posttransfer brief, Lopez argues that the intervening causation issue “bears 

further consideration because the Supreme Court is currently considering the effect of 

S.B. 775 on the related concurrent causation doctrine,” citing People v. Carney 

(No. S260063). The Supreme Court granted review in Carney in March 2020 to consider 

whether the substantial concurrent causation theory of liability of People v. Sanchez

(2001) 26 Cal.4th 834 permits a conviction for first degree murder if the defendants did 

not fire the shot that killed the victim, as well as the impact of People v. Chiu, supra, 59 

Cal.4th 155 and Senate Bill No. 1437 on the rule of Sanchez. The Supreme Court later 

requested that the parties brief the significance, if any, of Senate Bill No. 775 on the 

issues presented. 

Lopez fails to explain how Carney might impact this case. In our judgment, it will 

not because this case does not involve concurrent causation. “[A] cause is concurrent if it 

was ‘operative at the time of the murder and acted with another cause to produce the 

murder.’ ” (People v. Crew (2003) 31 Cal.4th 822, 846.) The causation issue raised 

below was not whether Lopez’s act of instigating the no-good vote was a concurrent 

cause of Frosty’s death along with the shooting. The issue was whether Lopez set in 

motion a chain of events that led to Frosty’s death. (Cf. People v. Jennings (2010) 50 

Cal.4th 616, 673.)

3. There is Sufficient Evidence of the Mental Component of Implied

Malice

Lopez also challenges the sufficiency of the evidence of the mental component of 

implied malice—that is, that he knew that his conduct endangered the life of another and 

that he acted with conscious disregard for life.

As previously discussed, the trial evidence showed that Lopez encouraged his 

fellow gang members to deem Frosty no good and, at Lopez’s urging, a vote to do just 
16

that was held. The gang expert and nearly every Espe witness testified that a gang 

member who has been deemed no good is subject to being killed by his former fellow 

gang members. According to the gang expert, Sureño gang members are obligated to kill 

someone who has been deemed no good. This evidence amply supports the reasonable 

inferences that Lopez knew that calling for Frosty to be declared no good endangered 

Frosty’s life and that Lopez nevertheless did so with conscious disregard for Frosty’s life.

To support his insufficiency of the evidence claim, Lopez notes that the Espe 

witnesses and the gang expert testified that they were unaware of any Espe gang member 

ever having been killed as a result of being deemed no good. It is true that none of the 

Espe witnesses knew of an Espe gang member ever being killed for being no good. 

However, those witnesses were not asked whether—apart from Frosty—they even knew 

of an Espe gang member being deemed no good. And while the gang expert was unable 

to identify another incident in which a member of Espe had killed another member of 

Espe for being no good, he emphasized that he “did not research previous murders 

associated to La Esperanza members being deemed no good.” Accordingly, the

significance of the testimony on which Lopez relies is unclear. It might reasonably be 

interpreted as demonstrating that no-good orders are rare.

Moreover, there was no shortage of evidence that Espe was a violent gang. 

Shadow testified that by the time of the 2012 gang meeting, he had not been active in the 

gang for a few years. He attended the meeting only because he felt he “had no choice” 

but to go because he feared for his safety and the safety of family if he refused. Melina 

testified that when Espe members arrived at her house on the day of the 2012 gang 

meeting she “thought that they were going to shoot up [her] house” because she was 

dating a Norteño. Instead, they drove her to the gang meeting and, eventually, three 

members of the gang beat her up for violating gang rules. This evidence, combined with

the evidence discussed above regarding the meaning of a no-good order, supports the
17

reasonable inferences that Lopez knew his actions endangered Frosty’s life and that 

Lopez acted with conscious disregard for Frosty’s life.

4. Neither Senate Bill No. 1437 Nor Senate Bill No. 775 Altered the 

Mental State Required for Implied Malice Murder 

In his supplemental brief following the transfer of this matter from the Supreme 

Court, Lopez argues that Senate Bill No. 775 narrowed the definition of murder such that 

a nonkiller cannot be held liable for murder under a theory of implied malice, but must be 

shown to have exhibited reckless indifference to human life. This argument is premised 

on a misunderstanding of the nature of implied malice murder liability. 

While Lopez purports to be relying on Senate Bill No. 775, in fact his argument 

depends on changes made by Senate Bill No. 1437.8 Specifically, he relies on the

addition of section 188, subdivision (a)(3) [“Malice shall not be imputed to a person 

based solely on his or her participation in a crime”] and the addition of the phrase 

“reckless indifference to human life” to section 189, subdivision (e)(3). He contends that 

these changes mean prosecutors were required to show that he—in his words, a 

nonkiller—acted with reckless indifference to human life. 

Lopez’s theory is flawed. First, Lopez appears to believe that implied malice 

murder is a theory by which malice is imputed to a person based solely on that person’s

participation in a different crime. It is not. The trial court’s finding of implied malice

was based solely on Lopez’s own actions and subjective mental state. Malice was 

8 Senate Bill No. 775 made no changes to sections 188 and 189, which define 

murder. Plainly, then, it did not narrow the definition of murder as Lopez now argues. 

As Lopez notes, Senate Bill No. 775 extended section 1170.95 to those convicted under

any “other theory [by] which malice is imputed to a person based solely on that person’s

participation in a crime.” (§ 1170.95, subd. (a)(1).) But that change does not impact 

Lopez, who was convicted under the natural and probable consequences doctrine and to

whom it has always been conceded section 1170.95 applies. 
18

not imputed to him based solely on his participation in a crime or based on the actions of 

others.

Second, Lopez is not a nonkiller under the law. The trial court found that Lopez’s 

own actions proximately caused Frosty’s death. True, Salazar’s act of shooting Frosty 

also was a proximate cause of Frosty’s death. But there may be more than one cause of 

death. (CALCRIM No. 520.) Lopez is not like a nonkiller held liable for felony murder 

to whom section 189, subdivision (e)(3) applies.

5. Assembly Bill No. 333 Does Not Impact the Trial Court’s Finding 

of Implied Malice

In his posttransfer brief, Lopez asserts that the trial court must reconsider its 

finding of implied malice in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.) 

(Stats. 2021, ch. 699). His argument is two-fold. First, he contends the trial court’s 

finding of implied malice hinged on his guilt of the substantive offense of active 

participation in a criminal street gang (§ 186.22, subd. (a)). Because Assembly Bill 

No. 333 altered the elements of that offense, Lopez maintains the court’s finding of 

implied malice cannot stand. Second, Lopez contends that some of the evidence on 

which the trial court relied in concluding he acted with implied malice is inadmissible 

under the law as amended by Assembly Bill No. 333. As Lopez correctly notes, 

following Senate Bill No. 775, courts are limited to considering evidence “that is

admissible under current law” at a section 1170.95 evidentiary hearing. (§ 1170.95, 

subd. (d)(3).) Neither contention has merit. 

Assembly Bill No. 333, which took effect on January 1, 2022, amended

section 186.22 and added section 1109. The amendments to section 186.22 change the 

definitions of “criminal street gang” and “pattern of criminal gang activity.” Newly 

added section 1109, subdivision (a) provides that a gang enhancement must be tried 

separately from the question of the defendant’s guilt of the underlying offense at the 

request of the defense. Section 1109, subdivision (b) requires that a violation of
19

section 186.22, subdivision (a) “be tried separately from all other counts that do not 

otherwise require gang evidence as an element of the crime.”

The trial court’s finding that Lopez acted with implied malice did not depend on 

whether his acts also constituted active participation in a criminal street gang in violation 

of section 186.22, subdivision (a). Rather, the court relied on Lopez’s actions—calling a 

gang meeting and accusing Frosty of being no good—and his knowledge of the 

implications of those actions—that Frosty was marked for death. While Lopez’s 

commission of the criminal street gang offense was relevant to the People’s trial theory 

(that Frosty’s murder was the natural and probable consequence of that target offense), it 

was not relevant to the theory the People advanced and the trial court accepted in 

connection with the section 1170.95 petition (that Lopez was guilty beyond a reasonable 

doubt of second degree implied malice murder). 

Lopez’s second argument is that the trial court may have relied on inadmissible 

evidence in denying his section 1170.95 petition. But he does not identify any specific 

evidence that he contends is now inadmissible. Indeed, he does not even argue that the 

substantive legal changes effected by Assembly Bill No. 333 rendered specific evidence 

inadmissible. Instead, he relies on legislative findings set forth in an uncodified section 

of Assembly Bill No. 333 to argue that the trial court should reconsider the admissibility 

of all gang-related evidence.9 This argument is so vague as to be deemed waived. 

Even if we were to reach the merits, we would reject the argument. The evidence 

on which the trial court relied—the testimony of Lopez’s fellow gang members and a 

gang expert—certainly can broadly be described a gang-related. But—apart from the 

9 Those findings include that “gang enhancement evidence can be unreliable and 

prejudicial to a jury because it is lumped into evidence of the underlying charges which 

further perpetuates unfair prejudice in juries and convictions of innocent people” and that 

“[s]tudies suggest that allowing a jury to hear the kind of evidence that supports a gang 

enhancement before it has decided whether the defendant is guilty or not may lead to 

wrongful convictions.” (Stats. 2021, ch. 699, § 2, subds. (d)(6) & (e).)
20

testimony of the expert—it also was the testimony of percipient witnesses as to Lopez’s 

words and conduct, their meaning, and those witnesses’ understanding as to the likely 

ramifications thereof. And all of the evidence at issue bore on the elements of second 

degree implied malice murder. It was not the sort of evidence the Legislature warned can 

be prejudicial—namely, gang enhancement evidence that is unrelated to the underlying 

charges. (Stats. 2021, ch. 699, § 2, subds. (d)(6) & (e).)

D. Lopez’s Constitutional Rights Are Not Implicated by Section 1170.95

Lopez argues that permitting a trial court to make the factual findings 

underpinning a determination of ineligibility for section 1170.95 relief violates his federal 

constitutional rights.

The Due Process Clause of the Fourteenth Amendment and the jury-trial guarantee 

of the Sixth Amendment, “[t]aken together, . . . indisputably entitle a criminal defendant 

to ‘a jury determination that [he] is guilty of every element of the crime with which he is 

charged, beyond a reasonable doubt.’ ” (Apprendi v. New Jersey (2000) 530 U.S. 466, 

476-477.) In Apprendi, the United States Supreme Court held that the federal 

Constitution requires that, “[o]ther than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)

Lopez argues that where the prosecutor seeks to prove a petitioner’s ineligibility 

for section 1170.95 relief for failure to satisfy the third condition, Apprendi requires that 

petitioner’s guilt of murder be proved to a jury. We disagree.

Section 1170.95 petitioners are not criminal defendants charged anew with murder 

and constitutionally entitled to a jury trial. Instead, they stand convicted of murder, their 

convictions are final, and they can constitutionally be punished for murder despite the 

ameliorative changes to the law of murder enacted by Senate Bill No. 1437. (See People

v. Conley (2016) 63 Cal.4th 646, 656 [“the Legislature . . . may choose to modify, limit, 

or entirely forbid the retroactive application of ameliorative criminal law amendments if 
21

it so chooses”]; Gov. Code, § 9608 [“[t]he termination or suspension (by whatsoever 

means effected) of any law creating a criminal offense does not constitute a bar to the 

indictment or information and punishment of an act already committed in violation of the 

law so terminated or suspended, unless the intention to bar such indictment or 

information and punishment is expressly declared by an applicable provision of law”]; 

Dillon v. United States (2010) 560 U.S. 817, 828 [“We are aware of no constitutional 

requirement of retroactivity that entitles defendants sentenced to a term of imprisonment 

to the benefit of subsequent Guidelines amendments”].) Accordingly, “the sentence-

[vacatur and] modification proceedings authorized by [section 1170.95] are not

constitutionally compelled. . . . Rather, [section 1170.95] represents a [legislative] act of

lenity . . . . [¶] Viewed that way, proceedings under [section 1170.95] do not implicate

the Sixth Amendment right to have essential facts found by a jury beyond a reasonable

doubt.” (Ibid.) Our colleagues in the First District reached the same conclusion in 

People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 and again more recently in People

v. James (2021) 63 Cal.App.5th 604, 609-611 (James).)

Furthermore, a factual finding that results in ineligibility for section 1170.95 relief 

does not increase the penalty for a crime. “[I]t simply leaves the original sentence 

intact.” (People v. Perez (2018) 4 Cal.5th 1055, 1064 (Perez).) Accordingly, Apprendi is 

not implicated and “the Sixth Amendment does not prohibit trial courts from relying on

facts not found by a jury in determining” section 1170.95 eligibility. (Perez, at p. 1064 

[addressing Proposition 36 resentencing].)

In his supplemental posttransfer brief, Lopez notes that our Supreme Court has left 

open the question of whether the denial of a section 1170.95 petition on the basis of facts 

found by the trial court runs afoul of Apprendi. (Gentile, supra, 10 Cal.5th at p. 857.) 

“Pending further clarification from the Supreme Court,” like our colleagues in the First 

District, we remain convinced “that a convicted person litigating a section 1170.95 

petition does not enjoy the rights that the Sixth Amendment guarantees to criminal 
22

defendants who have not yet suffered a final conviction. As just stated, the Legislature 

was not constitutionally required to make the amended definition of murder created by 

Senate Bill No. 1437 retroactive as to convictions, like appellant’s, that had become 

final.” (James, supra, 63 Cal.App.5th at p. 610.)

E. Attorney Conflict of Interest

Finally, Lopez argues his attorney below suffered from an actual conflict of 

interest such that he was deprived of his Sixth Amendment right to the assistance of 

counsel. Lopez was represented on his section 1170.95 petition in the trial court by 

Assistant Public Defender Jeremy Dzubay of the Monterey County Public Defender’s 

Office. The Public Defender, Susan Chapman, represented Lopez’s codefendant—

Salazar—at their joint trial. Lopez says Chapman’s prior representation of Salazar 

constitutes a conflict of interest that must be imputed to Dzubay and that requires

automatic reversal.

1. Factual Background

Lopez was tried jointly with Salazar in 2014. At trial, Lopez was represented by 

attorney Joseph Martin, as the Monterey County Public Defender’s Office had declared a 

conflict as to Lopez. Salazar was represented by Chapman, who was then with the 

alternate defender’s office. Chapman later became the Monterey County Public 

Defender, a position she held when Lopez filed his section 1170.95 petition.

Shortly after Lopez filed his petition, attorney Marc Zilversmit filed a motion for 

appointment of counsel on Lopez’s behalf. Zilversmit was Lopez’s appointed appellate 

counsel on direct appeal and represents him in the current appeal. In the motion, 

Zilversmit stated that his own appointment as Lopez’s attorney would be appropriate 

based on his professional qualifications and familiarity with the case. The motion did not

mention any potential conflict of interest that might preclude the appointment of the 

public defender.
23

Both Zilversmit and a deputy public defender appeared for Lopez at the first 

hearing on the petition on February 14, 2019. At that hearing, Zilversmitstated “I think 

your honor recalls that there was a conflict with the public defender who was 

representing the codefendant in this two-defendant case.” It is not clear whether this was 

a reference to Chapman’s prior representation of Salazar. The trial court apparently 

understood it as a reference to the fact that the public defender’s office had declared a 

conflict as to Lopez prior to trial, responding: “[n]onetheless, even when probation 

violations come in or other matters where the public defender has conflicted out, we still 

go through that procedure, even though it may seem obvious to us that there may be 

another conflict filed. Sometimes there isn’t, for whatever reason.” The trial court 

declined to appoint Zilversmit, explaining that County procedures require the 

appointment of the public defender’s office in the first instance, and then of the alternate 

defender’s office in the event the public defender’s office declares a conflict.

The public defender’s office accepted the appointment pending a determination as 

to the existence of any conflict. At a hearing a week later, Dzubay appeared for Lopez 

and indicated that the public defender’s office would not be declaring a conflict. Dzubay 

represented Lopez throughout the proceedings below.

2. Legal Principles

“Both the United States Constitution and the California Constitution guarantee 

criminal defendants the right to the assistance of counsel unburdened by any conflicts of 

interest. [Citation.] Essentially, a claim of conflict of interest constitutes a form of 

ineffective assistance of counsel. [Citations.] In order to demonstrate a violation of the 

federal and state Constitutions based on a conflict of interest, a defendant must show that 

his or her counsel was burdened by an ‘actual’ conflict of interest—one that in fact 

adversely affected counsel’s performance. [Citation.] When determining whether 

counsel’s performance was ‘ “adversely affected” ’ by the purported conflict under this 

standard, we consider whether ‘ “counsel ‘pulled his punches,’ i.e., whether counsel 
24

failed to represent defendant as vigorously as he might have, had there been no 

conflict.” ’ [Citation.]” (People v. Perez (2018) 4 Cal.5th 421, 435.) “ ‘ “In undertaking 

such an inquiry, we are . . . bound by the record. But where a conflict of interest causes 

an attorney not to do something, the record may not reflect such an omission. We must 

therefore examine the record to determine (i) whether arguments or actions omitted 

would likely have been made by counsel who did not have a conflict of interest, and 

(ii) whether there may have been a tactical reason (other than the asserted conflict of 

interest) that might have caused any such omission.” ’ [Citation.]” (People v. Johnson

(2018) 6 Cal.5th 541, 578.)

The United States Supreme Court has created a narrow exception to the foregoing. 

Reversal is automatic “where defense counsel is forced to [jointly] represent 

codefendants over his timely objection, unless the trial court has determined that there is 

no conflict.” (Mickens v. Taylor (2002) 535 U.S. 162, 168, citing Holloway v. Arkansas

(1978) 435 U.S. 475, 488 [“whenever a trial court improperly requires joint 

representation over timely objection reversal is automatic”].)

3. Analysis

Lopez contends that the automatic reversal rule applies here. It does not, for two 

independent reasons. This is not a case of joint representation of codefendants, but of 

successive representation. And Lopez’s counsel—Dzubay and the public defender’s 

office—did not object. Nor did Zilversmit bring the alleged conflict to the attention of 

the trial court judge. As noted above, he stated only, “I think your honor recalls that there 

was a conflict with the public defender who was representing the codefendant in this 

two-defendant case.” The record demonstrates that that vague statement failed to make 

the trial court judge aware that the current public defender represented Lopez’s 

codefendant at trial. Instead, the trial court reasonably interpreted Zilversmit’s statement 

as referring to the fact that the public defender’s office had declared a conflict as to 

Lopez years earlier.
25

Because automatic reversal is not required, Lopez must demonstrate that his 

counsel’s performance was adversely affected by the purported conflict. He attempts to 

carry that burden by faulting counsel below for not asking for an evidentiary hearing, not 

calling Salazar as a witness regarding the no-good meeting and discussion, and not

blaming Salazar for acting independently from Lopez and the no-good meeting. Lopez 

claims these unpursued strategies were adverse to Salazar, but potentially helpful to him. 

Lopez fails to show that counsel’s performance was adversely affected.

First, the parties were free to offer evidence at the section 1170.95, subdivision (d) 

hearing; they simply chose not to. Accordingly, counsel had no reason to request an 

evidentiary hearing; such a hearing was held.

Second, Lopez gives us no reason to suspect that conflict-free counsel would have 

called Salazar as a witness. Salazar did not testify at trial and we are unaware of any 

statements he has made about the gang meeting and the no-good vote. Accordingly, 

Lopez’s suggestion that Salazar’s testimony would have been favorable to him is purely 

speculative. Moreover, numerous Espe witnesses testified at trial regarding the gang 

meeting and the no-good vote. Had Salazar offered a starkly different account of those 

events at the hearing, it is unlikely that the trial court would have credited it.

Third, Lopez fails to show that conflict-free counsel would have been able to more 

persuasively argue that Salazar killed Frosty for reasons unrelated to Lopez and the nogood vote. Counsel below squarely placed the blame for Frosty’s death on Salazar, 

arguing in his brief: “The injury that caused Frosty’s death was the gunshot wounds 

inflicted by Salazar. Lopez’s physical act of calling a meeting could not cause Frosty’s 

death because it was not directly connected with the gunshot wounds.” Counsel below 

did not concede that Salazar was acting pursuant to the no-good vote. Nor did Chapman 

make that argument at trial. To the contrary, she argued that Salazar killed Frosty for 

reasons unrelated to Lopez and the no-good vote—namely, in self-defense and defense of 

another. The jury rejected those defenses when it convicted Salazar of first degree 
26

murder. Lopez points to no evidence (and we are aware of none) suggesting that Salazar 

had any motive to kill Frosty—a member of his own gang—other than because Frosty

had been deemed no good. Accordingly, it is unclear what more counsel could have done 

to argue that Salazar acted independently of the no-good vote.

For the foregoing reasons, Lopez’s conflict of interest claim fails.

III. DISPOSITION

The order is affirmed.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

DANNER, J.

People v. Lopez

H047254