Filed 10/30/23 P. v. Lopez CA2/8 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR A. LOPEZ,

Defendant and Appellant. B3 20713

Los Angeles County Super. Ct. No. BA400013

- 02

ORDER MODIFYING OPINION AND DENYING REHEARING

[ NO CHANGE IN JUDGMENT ]

THE COURT:
It is ordered that the opinion filed herein on October 2 , 2023, be

modified as follows:

1. On page s 11 and 12, the final two paragraphs of the Discussion

are deleted and replaced with the following paragraph: “Remand
for a new sentencing hearing is required. ( People v. Rocha (2019)
32 Cal.App.5th 352, 360 [“remand is necessary to ensure
proceedings that are just under the circumstances, namely, a
hearing at which bo th the People and defendant may be present
and advocate for their positions”].) The trial court should not
have sentenced Lopez in absentia as it knew it was denying him
his federal and state constitutional right to be personally present
at resentencing. The court acknowledged Lopez “should have2 been here because it’s a resentencing,” but justified its actions by
stating it was “following what they [the Court of Appeal]

dictated.” This court did not dictate that the trial court conduct a
resentencing hea ring in absentia or without exercising its
sentencing discretion. The trial court’s inexplicable failure to
correct the error it knew it was making necessitated this
avoidable second remand for resentencing.”

2. On page 12, the first sentence of the Disposit ion is modified to
add “for resentencing” after the word “remanded.”

3. On page 12, the second and third sentences of the Disposition are
deleted in their entirety.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.

_____ ___________________

________________

_______________________________ STRATTON, P. J. GRIMES, J. WILEY, J.Filed 10/2/23 P. v. Lopez CA2/8 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

THE PEOPLE,

Plaintiff and Respondent

,

v.

EDGAR A. LO PEZ,

Defendant and Appellant. B3 20713

Los Angeles County Super. Ct. No. BA400013

- 02

APPEAL from a judgment of the Super ior Court of
Los Angeles County, George G. Lomeli , Judge. Sentence vacated; remanded for resentencing with direction

. Brad Ka iserman , 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, Kenneth C. Byrne and Blak e Armstrong

, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________2 Edgar Lopez was convicted of the first degree murders of Steven Robinson, Aric Lexing, and Scott Grant (Pen. Code, § 187) 1 and the sale of methamphetamine (Health & Saf. Code, § 1137 9, subd. (a)) , with associated enhancements and special
circumstance s found true

. In Lopez’s first appeal, we affirmed the convictions but vacated the gang

- related special circumstance and enhancement findings and remanded for further p roceedings. ( Peopl e v. Lopez (2021) 73 Cal.App.5th 327 ( Lopez ). The trial court resentenced Lopez in absentia without a waiver of his presence and re

- imposed the original sentence except for the

gang

- related special circumstances and enhancements. Lopez appeals. We rejec t his argument that section 1109 requires that he be granted a new trial, but we vacate the sentence and remand for a resentencing hearing at which Lopez is present unless he properly waives his presence.

FACTUAL AND PROCEDURAL BACKGROUN D

Lopez was convict ed o f the first degree murders of Robinson, Lexing, and Grant, and the sale of methamphetamine

. 2 ( Lopez

, supra , 73 Cal.App.5th at p. 332 .) The jury found Lopez intentionally committed each murder while he was an active participant in a criminal street ga ng and the murder was committed to further the activities of the gang (§ 190.2,
subd. (a)(22)) . The jury also found Lopez was convicted of multiple murders (§ 190.2, subd. (a)(3)). ( Lopez , at p p

. 331

– 332 .) For all three murders, the ju ry found true the s pecial allegation

1 U ndesignated statutory references are to t he Penal Code.

2 We grant Lopez’s request for judicial notice of the record from his prior appeal, case No. B301050.3

that a principal personally and intentionally discharged a firearm, caus ing the victim great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)) ; in the Lexing and Grant murders, the jury also found true allegation s that Lopez

person ally and intentionally discharged a firearm, which caused Lexing and Grant great bodily injury or death (§ 12022.53,
subd. (d))

. ( Lopez , at p. 332 .) The jury found all four offenses were committed for the benefit of a criminal street g ang (§ 186.22, subd s

. (b)(1)(A) & (b)(1)(C))

. ( Lopez , at p. 332 .) The prosecution sought the death penalty, but the jury selected a sentence of life in prison without the possibility of parole. ( Lopez

, supra , 73 Cal.App.5th at p. 332 .) For each of the

t hree murders, Lopez was sentenced to life in prison without the possibility of parole , plus a sentence of 25 years to life for the firearms enhancement in section 12022.53, subdivision (d). ( Lopez , at p. 332 .) Additionally, t he court imposed the mid

- term of three years for the drug offense, plus three years for the gang
enhancement. ( Ibid .) The court designated the sentences to run consecutively. ( Ibid .) Lopez appeal ed

. In Lopez

, supra , 73 Cal.App.5th at

p age 348, we affirmed his convictions but vacat ed the gang
enhance ments under section 186.22, the special circumstance findings under section 190.2, subdivision (a)(22), and the gang

related firearms enhancements under section 12022.53, subdivision (e) , all because of changes in the law made by
Assembl y Bill No. 333 (202 1

– 2022 Reg. Sess.) (Stats. 2021,
ch. 699, §§ 1

– 4 .) We remanded the matter to give the People the opportunity to prove the applicability of the enhancements and special circumstance s under amend ed section 186.22. ( Lopez , at

p p

. 346, 34 8 .)4 On May 11, 2022 , the trial court conducted a resentencing hearing. Lopez’s c ounsel requested the hearing be continued for

two reasons

. First, counsel wanted to explore with the People a recommend ed sentence of life with the possibility of parole rath er than life withou t the possibility of parole

. The court rejected this argument, stating that even if the People recommended the possibility of parole, it would not follow that recommendation
based on the evidence at trial

. Second, Lopez’s counsel sought a continuance to a scertain whether Lopez wished to be present or to waive his presence at the resentencing hearing. The court refused to continue the hearing, stating that in its view, the Court of Appeal had “basically modified” Lopez’s sentence to comp ly with Assembly
Bi ll No. 333

, and its job was merely to “resentence the defendant
in accordance with their modifications.”
The court did not ask the prosecution whether it wished to retry the gang enhancements under section 186.22, the special
circumstanc e s under section 19 0.2, subdivision (a)(22), and the

gang

- related firearms enhancements under section 12022.53, subdivision (e )

. I t imposed a sentence identical to the original sentence except for the omission of the vacated enhancements and findings : Lo pez was sentenced t o a consecutive term of life imprisonment without the possibility of parole for each murder, plus two consecutive sentences of 25 years to life on the Lexing
and Grant murders pursuant to section 12022.53, subdivision (d),
and a consecut ive midterm sentenc e of three years for the methamphetamine conviction. After imposing sentence , the court said, “Technically, I
think he should have be e n here because it’s a resentencing, but I5

was following what they [the Court of Appeal] dictated.” Lop ez appeals.

DISCUSS ION

I. Section 1109
Lopez argues he is entitled to a new trial based on the retroactive application of section 1109, which provides , inter alia,
that gang enhancements under section 186.22, subdivisions (b)
and (d) must be bifurcated fro m the trial on subs tantive offenses

upon defense request

. He contends gang

- related special circumstance allegations are also subject to bifurcation pursuant to that statute, and he claims the evidence relating to gangs
would not otherwise have been admiss ible at trial. Lop ez argues the failure to bifurcate the gang

- related allegations against him constituted structural error, or, in the alternative, was prejudicial
under either the Chapman or Watson standard. ( Chapman v California (1967) 386 U.S. 18 ( Cha pman ) ; People v. Wa tson (1956) 46 Cal.2d 818 ( Watson ) .) We recognize the split of appellate opinion on th e question of section 1109’s retroactivity

. The Supreme Court has granted
review to resolve the issue. ( People v. Burgos (2022)
77 Cal.App.5th 5 50 , r eview granted July 13, 2022, S274743 [§ 1109 applies retroactively] ; People v. Perez (2022)
78 Cal.App.5th 192, review granted Aug

. 17, 2022, S275090 [§ 1109 does not apply retroactively] ; People v. Ramirez (2022)
79 Cal.App.5th 48, review granted Oct. 12

, 2022, S275341 [ sam e ] ; People v. Boukes (2022) 83 Cal.App.5th 937, review granted Dec. 14, 2022, S277103 [ same ] )

. )
E ven if section 1109 were considered to operate

retro ac tively , reversal would not be required here. Our Supreme6

Court has rejected the conte ntion that failure to bifurcate
constitutes structural error , and it has concluded the Watson
standard for state

- law error applies when examining whether the failure to bifurcate was prejudicial with respect to an appellant’s guilty verdicts. ( People v. T ran (2022) 13 Cal.5 th 1169

, 1208

– 1209.)
A pplying the Watson standard, a ny error in failing to bifurcate was not prejudicial because even if the gang enhancement allegations had been bifurcated, the gang evidence
would have been admissible at trial to prove the special
circum stance alleged against Lopez pursuant to section 190.2, subdivision (a)(22) , which makes first degree murder punishable by death or life without the possibility of parole if “[t]he defendant intentionally killed the victim while the defe ndant was
an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” (§ 190.2

, subd. (a)(22).) As s ection 1109 makes no referenc e to section
190.22 , subdivision (a)(22), it does not apply to the determination of special circumstance allegations under section 190.2(a)(22). ( People v. Montano (2022) 80 Cal.App.5th 82, 114

. ) Because the gang evidence would have still come i n at tria l due to the sectio n 190.2 , subdivision (a)(22) special circumstance allegation , Lopez was not prejudiced by the failure to bifurcate . (See People v.
Hernandez (2004) 33 Cal.4th 1 040, 1049

– 1050 [ “ To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled ” ]; People v. Osband (1996) 13 Cal.4th 622, 667 [if evidence is cross

admissible, prejudice is dispelled].)7 Contending Montano was incorrectly decided , Lopez

proposes we consider section 11 09 ambiguous because it does not mention the gang

- related special circumstance

, then judicially
rewrite the statute to expand it to gang

- related special
circumstance allegations. We may not do so. There is nothing ambiguous about secti on 1109; it simply does not provide for
bifurcation with respect to gang

- related special circumstances. “When construing a statute, our job is ‘simply to ascertain and declare what is in terms or in substance contained therein, not to
insert what has been omitted, or to omi t what has been
inserted.’ ” ( People v. Bell (2015) 241 Cal.App.4th 315, 321.) Lopez cannot establish prejudice here.

II. Resentencing in Absentia
Lopez correctly contends, and the Attorney General does not dispute, that t he trial cour t erred in proceedi ng with the resentencing hearing in Lopez’s absence without a waiver of his

presence

. (See People v. Nieves (2021) 11 Cal.5th 404, 508 [recognizing a criminal defendant ’ s “ ‘constitutional and statutory right to be present at [a] senten ce modification hea ring and imposition of sentence’ ”]; People v. Doolin (2009) 45 Cal.4th 390, 453 [a defendant has a federal constitutional right to be present at “all critical stages” of a criminal prosecution; sentencing is a critical stage]; People v. Rodriguez (1998) 1 7 Cal.4th 253, 260 ( Rodriguez ) [resentencing is critical stage when court has discretion to reconsider sentence on remand]; People v. Cutting (2019) 42 Cal.App.5th 344, 348 ( Cutting ) [same]; People v.
Guerrero (2022) 76 Cal.App.5th 329, 336 ( Guerrero ) [sam e]; People v. Simms (2018) 23 Cal.App.5th 987, 996 ( Simms ) [defendant ’ s right to be personally present “extends to sentencing and resentencing proceedings”]; see generally People v. Davis8

(2005) 36 Cal.4th 510, 531 [a defendant may waive his or her right t o be present for a critical stage such as sentencing provided the waiver is knowing, intelligent and voluntary].)
Because the trial court ’ s error resulted in a violation of Lopez’s federal constitutional right to be present at a critical stage of the proce edings, we review the error under Chapman

, , to determine if it was harmless beyond a reasonable doubt. ( People v. Mendoza (2016) 62 Cal.4th 856, 902 [“ ‘Under the federal Constitution, error pertaining to a defendant ’ s presence is
eval uated under the har mless

- beyond

- a

- reasonable

- doubt
standard set forth in Chapman ’ ”].) “ Under that standard, the

error ‘ may be deemed harmless only if we can conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the proceed ing. ’ ” ( Cutting

, supra , 42 Cal.App.5th at p. 348.) The Attorney General argues the error was harmless beyond a reasonable doubt because the court “followed the appellate opinion and vacated the gang enhancement and special allegation affected by [Assembl y Bill No.] 333, an d otherwise sentenced appellant to the same sentence that he received after trial and was present in court.” I t is true the trial court followed our prior opinion insofar as it vacated the portions of the sentence
we instructed it to va cate . ( Lopez

, supr a , 73 Cal.App.5th at

p p. 346, 348

. ) However, the court failed to afford the People the opportunity to retry the enhancements and special circumstance s in accordance with the changes in the law, as we expressly
instructed it to do . ( Id

. at p. 346 .) Addit ionally , the trial court failed to appreciate the scope of its authority on remand. The California Supreme Court has “held that when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all cou nts is appropriate, so the trial court can9

exercise its sentencing discretion in light of the changed
circumstances.’ ” ( People v. Buycks (2018) 5 Cal.5th 857, 893.) Accordingly

, at resentencing

, the trial court had jurisdiction to modify every aspect of the sentence, not just to vacate the enhancements and the special circumstance s ; and in resentencing Lopez, the court could consider “ ‘any pertinent circumstances which have arisen since the prior sentence was imposed’ ” in exercising its discretion. ( I bid .)
Given that th e court had full authority to resentence Lopez,
it is obvious that the court’s reimposition of the same sentence except for the vacated enhancements and special circumstances is
not sufficient to establish that the error in resentencing Lopez in
his absenc e was harmless beyond a reasonable doubt. As the court explained in Cutting , “ Here , Cutting may have offered mitigating factors that arose after his original sentencing; he may have expressed remorse; he may have made a plea for lenienc y. [Citation.] Wh ile the trial court may or may not have chosen to believe what Cutting might have said, if he said anything, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome. (See Simms

, supra , 23 Cal.App.5 th at p. 998; see also Rodriguez

, supra , 17 Cal.4th at p. 258 [‘[t]he evidence and arguments that might be presented on remand cannot justly be considered “superfluous,” because defendant and his counsel have never enjoyed a full and
fai r opportunity to ma rshal and present the case supporting a favorable exercise of discretion’].)” ( Cutting

, supra , 42 Cal.App.5th at p. 350.)
Here , while Lopez’s murder sentences were fixed at life without the possibility of parole by section 190.2,
subdiv ision (a)(3), the t rial court retained the discretion to elect10

whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h) , or to impose a lesser firearm enhancement. ( People v. Tirado (2022) 12 Cal.5th 688, 692.) It
had the discretion to impos e a lower term sentence on the
determinate count

, and to elect whether to impose concurrent or
consecutive sentences. Had Lopez been present and had the court conducted a full resentencing hearing, Lopez may have been able to present mi tigating factors or other information to
the court. But b ecause the court resentenc ed Lopez without giving his counsel the opportunity to consult with hi m , counsel could not present, and indeed was entirely unaware of

, any mitigating factors that may have arisen in the year s that had passed since the original sentencing. Accordingly h ere, as in Cutting , we cannot conclude beyond a reasonable doubt that Lopez’s presence at the hearing would not have affected the

outcome. The Attorney General argues sentenc ing Lopez in his
ab sence without a valid waiver was harmless beyond a
reasonable doubt. This is so, the Attorney General contends,
because the court’s statement that it would not follow a recommendation of life with the possibility of parole “s hows that
i t was not inclined to alter its sentence beyond what the appellate opinion instructed,” The Attorney General made a similar argument in Guerrero

, conten ding that sentencing a defendant in
absentia was harmless error because the court’s comments
indicated it would not have i mposed a lesser sentence had the defendant been present

, nor would it have found youth

- related mitigating factors persuasive if had it considered them. ( Guerrero

, supra , 76 Cal.App.5th at pp. 337

– 338.) The Court of Appeal in Guerrero f

ound this argument “troubling,” because a11

court’s statement that it was not inclined to consider a sentence other than that originally imposed , when made without evaluating the factors to be considered at sentencing, “ hardly means we can conclude a court p roperly exercising its well

informed sentencing discretion, rather than adamantly adhering to its initial determination, might not reach a different
conclusion. [A defendant] is entitled to no less than a thoughtful,
well

- considered decision. ” ( Ibid .)
Re mand for a new sent encing hearing is required. ( People
v. Rocha (2019) 32 Cal.App.5th 352, 360 [“remand is necessary to ensure proceedings that are just under the circumstances, namely, a hearing at which both the People and defendant may be present and a dvocate for their p ositions”].) On remand, the trial court shall afford the People the opportunity to elect whether to retry the gang allegations and special circumstance allegations under the amended requirements of section 186.22. ( Lopez

, supra , 73 Cal .App.5th at p. 346; People v. Eagle (2016) 246 Cal.App.4th 275, 280 [when a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand].) If the People ele ct not to retry Lop ez on the se allegations, or at the conclusion of any retrial, the trial court is directed to resentence Lopez, exercising its full sentencing discretion and conducting the hearing in Lopez’s presence unless Lopez validly waives his const itutional right to be present.
The trial court should not have sentenced Lopez in absentia
as it knew it was denying him his federal and state constitutional right to be personally present at resentencing. The court acknowledged Lopez “should have been he re because it’s a

r esentencing,” but justified its actions by stating it was “following12

what they [the Court of Appeal] dictated.” This court did not dictate that the trial court conduct a resentencing hearing in absentia, without following the instructio ns of this court , o r without exercising its sentencing discretion. The trial court’s inexplicable failure to correct the error it knew it was making necessitated this avoidable second remand for resentencing.

DISPOSITION

The sentence is vacated and the m atter remanded. On remand, the trial court shall afford the People the opportunity to elect whether to retry t he gang enhancement allegation s under section 186.22, the special circumstances allegations under section 190.2, subdivision (a)(2 2 ), and the gan g

- related firearm

e nhancement allegations under section 12022.53, subdivision (e)

. If the People elect not to retry Lopez on these allegation s , or at the conclusion of any retrial, the trial court is directed to resentence Lopez, exercising its full sente ncing discretion an d conducting the hearing in Lopez’s presence unless Lopez validly waives his right to be present.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATT ON, P. J. We concur:

GRIMES , J. WILEY , J.