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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TO NI LOPEZ

,
Defendant and Appellant. B 326081

(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 de nying 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. W e 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 caus ed great bodily injury to the victim within the meaning of section 12022.53,
subdivisions (b), (c)

, (d) and (e)(1). T wo counts of second degree robbery ( § 211 ; counts 5 & 6 ) and one count of misdemeanor receiving s tolen 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 caus ed 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 1 86.22, subdivision (b)(1)(C), that the crimes alleged in count s 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 b y 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

a fter several continuances a hearing o n 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.)

, effecti ve 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 defend ant 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 ( s ee § § 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957)

. A

p rocedure 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, c h . 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 fel ony murder or the natural and probable consequences doctrine

, regardless of whether the attempted murder conviction was5

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 t he trial court to recall the original sentence and

resentence defendant “ on any remaining counts in the same
manner as if [ s he] had not previously been sentenced .” ( § 1172.6, subd. ( d )(1)

- (2).)
T hough t he trial court acknowledged the above provisions

, i t 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 b oth 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 allow ing 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 Califo rnia 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)

, explain ing 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.] Inst ead, the court must restore the parties to the status quo ante ” ’ ” ( i d . at pp. 706

- 707)

. As both parties argue , Stamps is distinguishable from the
instant case. Stamps was decided under section 1385, a6

sentencing provision that does not provide resentencing and is
retroactive only to nonfinal cases

. ( Stamps

, supra , 9 Cal.5th at

pp. 692
, 698

- 699.) S ection 1172.6 , on the other hand, set s forth a procedure which permits the court to retroactively recall a sentence after the judgm ent 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 permit ting 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 th e 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 i f 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, c h . 721 § 1.)
In Harrell , the appellate court found th e 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 p p. 167

- 168.) We agree with the parties that Harris v. Supe rior Court (2016) 1 Cal.5th 984 ( Harris )

, where a similar issue arose in7

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 c onstruction, 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 g uilty 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 defe ndants.” ( 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 re asoned 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 charg es 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) b ut 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 agree ment. ’ ” ( Harris

, supra , 1 Cal.5th

at p. 99 2 .) 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 th at 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, c h . 586, § 1 .) Thus, a plea bargain that requires a defendant to ge nerally 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,
subd s

. (a)(4) & (b).) We agree with the parties that the matter be remanded for
a full resent encing. 3

DISPOSITON The order vacating defendant’s attempted murder
conviction is affirmed , and t he 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 R esentenc ing “ 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, cit ing People v. Valenzuela (2019) 7 Cal.5th 415, 424

- 425 & People v

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