Filed 2/7/24 P. v. Lopez CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TONI LOPEZ,

Defendant and Appellant.

 B326081

 (Los Angeles County

 Super. Ct. No. BA438338)

APPEAL from an order of the Superior Court of Los 

Angeles County, Henry J. Hall, Judge. Affirmed in part; reversed 

in part and remanded.

Olivia Meme, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Steven E. Mercer, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Toni Lopez (defendant) appeals 

the order denying in part her petition filed pursuant to Penal 

Code section 1172.6. Both parties agree the trial court correctly 

granted vacatur of defendant’s 2016 attempted murder conviction 

but erred in refusing to fully resentence her on the remaining 

charges. We agree and reverse in part and remand with 

instructions.

BACKGROUND

In 2015, defendant was charged with one count of 

attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 7)

1

with the allegation a principal personally and intentionally 

discharged a firearm and proximately caused great bodily injury 

to the victim within the meaning of section 12022.53, 

subdivisions (b), (c), (d) and (e)(1). Two counts of second degree 

robbery (§ 211; counts 5 & 6) and one count of misdemeanor 

receiving stolen property (§ 496, subd. (a); count 4) were also 

alleged. As to count 5, it was alleged that a principal was armed 

with a firearm (§ 12022, subd. (a)(1)) and personally used a 

firearm (§ 12022.53, subds. (b) & (e)(1)). In count 6, it was 

alleged that a principal personally and intentionally discharged a 

firearm and proximately caused great bodily injury to the victim 

within the meaning of section 12022.53, subdivisions (b), (c), (d)

and (e)(1). It was further alleged pursuant to section 186.22, 

subdivision (b)(1)(C), that the crimes alleged in counts 4, 6 and 7 

were committed for the benefit of, at the direction of, and in 

association with a criminal street gang, with the specific intent to 

1 All further unattributed code sections are to the Penal Code 

unless otherwise stated.
3

promote, further and assist in criminal conduct by gang 

members.

After trial had begun, a plea agreement was reached under 

which defendant pled no contest to counts 5 and 7. As to count 5, 

defendant admitted the gang allegation and a firearm 

enhancement pursuant to section 12022.53, subdivisions (b) and

(e)(1). Defendant was then sentenced to a 23-year prison term 

comprised of three years for second degree robbery, plus 10 years 

for the gang enhancement and 10 years for the firearm 

enhancement. A concurrent seven-year term for the attempted 

murder was also imposed. The remaining counts were dismissed.

On June 1, 2022, defendant filed a petition for vacatur of 

her attempted murder conviction and for resentencing pursuant 

to former section 1170.95, now section 1172.6.2 The trial court 

appointed counsel, ordered the prosecution to file a response, and 

after several continuances a hearing on the petition was held on 

October 10, 2022. The trial court and the parties agreed 

defendant was entitled to vacatur of her attempted murder 

conviction and to resentencing. The court then vacated and 

dismissed the attempted murder conviction, but reinstated the 

original sentence of 23 years in prison after concluding that since

defendant received a sentence pursuant to a negotiated plea, the 

court had no jurisdiction to do otherwise. 

Defendant filed a timely notice of appeal.

2 Section 1170.95 was renumbered section 1172.6, with no 

change in text effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) 

We will refer to the section by its new numbering only.
4

DISCUSSION

Defendant contends and the People agree that the trial 

court erred in not resentencing defendant.

Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective 

January 1, 2019, amended the laws pertaining to felony murder 

and murder under the natural and probable consequences 

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 underlying felony who 

acted with reckless indifference to human life.” (Stats. 2018, ch. 

1015, § 1, subd. (f).) The bill also eliminated the natural and 

probable consequences doctrine as a basis for finding a defendant 

guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-

843) and significantly narrowed the felony-murder exception to 

the malice requirement for murder (see §§ 188, subd. (a)(3), 189, 

subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957). A

procedure for those convicted of attempted murder to seek 

retroactive relief if they could not now be convicted under the 

amended laws was provided and later extended to attempted 

murder convictions. (Stats. 2021, ch. 551, § 2; see § 1172.6, subd. 

(a).)

“‘In construing any statute, we first look to its language. 

[Citation.] “Words used in a statute . . . should be given the 

meaning they bear in ordinary use. [Citations.] If the language 

is clear and unambiguous there is no need for construction, nor is 

it necessary to resort to indicia of the intent of the 

Legislature . . . .”’” (People v. Zambia (2011) 51 Cal.4th 965, 972.) 

Under the plain wording of section 1172.6, if the charging 

document allowed the prosecution to proceed on a theory of felony 

murder or the natural and probable consequences doctrine, 

regardless of whether the attempted murder conviction was
5

entered following trial or whether the defendant accepted a plea 

offer in lieu of a trial, the relief of section 1172.6 was available. 

(§ 1172.6, subd. (a)(1)-(2).) Indeed since the prosecution 

stipulated to vacatur of the attempted murder conviction and the 

trial court agreed defendant could not now be convicted under 

any current viable theory of attempted murder, the statute 

required the trial court to recall the original sentence and 

resentence defendant “on any remaining counts in the same 

manner as if [she] had not previously been sentenced.” (§ 1172.6, 

subd. (d)(1)-(2).)

Though the trial court acknowledged the above provisions,

it relied on People v. Stamps (2020) 9 Cal.5th 685 (Stamps), 

People v. Pixley (2022) 75 Cal.App.5th 1002 (Pixley), and People v. 

King (2020) 52 Cal.App.5th 783 (King), which both parties here 

agree are inapplicable to resentencing under section 1172.6.

Stamps was a direct appeal after a negotiated plea, seeking 

remand due to a change in the law allowing a trial court to strike 

a five-year serious felony enhancement in the interest of justice. 

(Stamps, supra, 9 Cal.5th at p. 692; see § 1385.) The California 

Supreme Court remanded the case so the trial court could 

consider whether to exercise its newly conferred discretion to 

strike the enhancement; but the court also held that if the trial 

court did so, the prosecution could withdraw from the plea or the

court could withdraw approval of the plea (Stamps, supra, at 

pp. 705-706), explaining that when a negotiated plea is 

withdrawn, “‘“the court cannot ‘proceed to apply and enforce 

certain parts of the plea bargain, while ignoring’ others.

[Citation.] Instead, the court must restore the parties to the 

status quo ante”’” (id. at pp. 706-707).

As both parties argue, Stamps is distinguishable from the 

instant case. Stamps was decided under section 1385, a 
6

sentencing provision that does not provide resentencing and is 

retroactive only to nonfinal cases. (Stamps, supra, 9 Cal.5th at 

pp. 692, 698-699.) Section 1172.6, on the other hand, sets forth a 

procedure which permits the court to retroactively recall a 

sentence after the judgment becomes final. (People v. Strong

(2022) 13 Cal.5th 698, 708.) If a conviction qualifies for vacatur, 

section 1172.6 requires resentencing on any remaining counts. 

(§ 1172.6, subd. (d)(1)-(2).) There is no language in the statute 

requiring or permitting withdrawal of the plea.

As King relied on Stamps to deny resentencing under 

section 1170.91 to a defendant who had negotiated a plea with a 

stipulated sentence (King, supra, 52 Cal.App.5th at pp. 790-791),

and Pixley relied on King and Stamps to do the same (Pixley, 

supra, 75 Cal.App.5th at pp. 1005-1006), these cases are also 

inapplicable here. Moreover, both King and Pixley have been 

abrogated by statute (People v. Harrell (2023) 95 Cal.App.5th 

161, 166-167) when the Legislature amended section 1170.91, 

subdivision (b)(3), effective January 1, 2023, to provide that if the 

once-specified criteria are satisfied, the court may resentence the 

petitioner in enumerated ways, including a reduction in the term,

“regardless of whether the original sentence was imposed after a 

trial or plea.” (Stats. 2022, ch. 721 § 1.)

In Harrell, the appellate court found the language 

ambiguous, reviewed the legislative history of the amendment, 

and concluded that “the Legislature clearly intended to make 

persons serving a stipulated sentence eligible for relief under 

section 1170.91,” thus eliminating King’s reasoning under the 

former language of the statute. (People v. Harrell, supra, 95 

Cal.App.5th at pp. 167-168.)

We agree with the parties that Harris v. Superior Court

(2016) 1 Cal.5th 984 (Harris), where a similar issue arose in 
7

relation to Proposition 47 (approved Nov. 2014), used a procedure 

to retroactively reduce certain nonviolent crimes from felonies to 

misdemeanors that is more helpful. (See § 1170.18, subd. (a).) 

“‘When legislation has been judicially construed and a 

subsequent statute on a similar subject uses identical or 

substantially similar language, the usual presumption is that the 

Legislature [or the voters] intended the same construction, unless 

a contrary intent clearly appears.’” (People v. Rivera (2015) 233 

Cal.App.4th 1085, 1100.)

In Harris, our Supreme Court held that resentencing under 

Proposition 47 did not allow the prosecution to withdraw from a 

previously negotiated plea. (Harris, supra, 1 Cal.5th at pp. 987-

988.) Proposition 47 created a resentencing procedure similar to 

section 1172.6, applicable to those “‘serving a sentence for a 

conviction, whether by trial or plea, of a felony or felonies who 

would have been guilty of a misdemeanor under the act that 

added this section . . . had this act been in effect at the time of the 

offense.’” (Harris, at p. 991; see § 1170.18, subd. (a).) “The 

italicized language makes it clear that the provision applies to 

someone . . . who was convicted by plea [with] no exceptions and, 

specifically, no exception for someone convicted by a plea that 

was the result of a plea agreement. By expressly mentioning 

convictions by plea, Proposition 47 contemplated relief to all 

eligible defendants.” (Harris, at p. 991, citations omitted.) As 

section 1172.6 contains no exceptions to its similar provision, we 

conclude that relief is similarly available to all eligible 

defendants, including those who negotiated a plea in lieu of a 

trial. (§ 1172.6, subd. (a)(1)-(2).)

Moreover, as noted in Harris, section 1170.18, subdivision 

(b) provides that a defendant upon meeting the requirements for 

relief “‘shall’ be resentenced,” and with just one exception. 
8

(Harris, supra, 1 Cal.5th at pp. 991-992.) Section 1172.6, 

subdivision (d)(3) similarly provides, but without exception, that 

upon a finding of eligibility for relief “the conviction, shall be 

vacated and the petitioner shall be resentenced on the remaining 

charges.” (Italics added.) Harris reasoned that “[t]he 

resentencing process that Proposition 47 established would often 

prove meaningless if the prosecution could respond to a 

successful resentencing petition by withdrawing from an 

underlying plea agreement and reinstating the original charges 

filed against the petitioner.” (Harris, supra, at p. 992.) So too 

the resentencing process established by Senate Bill No. 1437 

would be meaningless if the trial court were allowed to abide by 

the vacatur mandate of section 1172.6, subdivision (d)(3) but 

refuse the statute’s mandate that an eligible defendant be 

“resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)

In Harris, our Supreme Court quoted its decision in Doe v. 

Harris (2013) 57 Cal.4th 64, 70, which “stands for the proposition 

that ‘the Legislature . . . , for the public good and in furtherance 

of public policy, and subject to the limitations imposed by the 

federal and state Constitutions, has the authority to modify or 

invalidate the terms of an agreement.’” (Harris, supra, 1 Cal.5th 

at p. 992.) Effective January 1, 2020, the Legislature codified 

that rule by declaring: “The California Supreme Court held in 

Doe v. Harris[, supra,] 57 Cal.4th 64 that, as a general rule, plea 

agreements are deemed to incorporate the reserve power of the 

state to amend the law or enact additional laws for the public 

good and in pursuance of public policy. That the parties enter 

into a plea agreement does not have the effect of insulating them 

from changes in the law that the Legislature has intended to 

apply to them”; and a plea that includes a waiver of unknown 

future rights is not a knowing and intelligent plea. (§ 1016.8, 
9

subd. (a)(1); Stats. 2019, ch. 586, § 1.) Thus, a plea bargain that 

requires a defendant to generally waive future benefits of 

changes in the law that are unknown or that may retroactively 

apply after the plea, is void as against public policy. (§ 1016.8, 

subds. (a)(4) & (b).)

We agree with the parties that the matter be remanded for 

a full resentencing.3

DISPOSITON

The order vacating defendant’s attempted murder 

conviction is affirmed, and the matter is remanded with 

directions to recall defendant’s sentence and to fully resentence 

defendant on the remaining charges.

________________________

CHAVEZ, J.

We concur:

________________________ ________________________

LUI, P. J. ASHMANN-GERST, J.

3 Resentencing “on any remaining counts in the same 

manner as if the petitioner had not previously been sentenced” as

provided in section 1172.6 (d)(1) means full resentencing, which 

allows a court to revisit all prior sentencing decisions, not solely a 

portion of the sentence. (People v. Trent (2023) 96 Cal.App.5th 

33, 44, review granted Dec. 20, 2023, S282644, citing People v. 

Valenzuela (2019) 7 Cal.5th 415, 424-425 & People v. Buycks

(2018) 5 Cal.5th 857, 893.)