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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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. LOPEZ,

Defendant and Appellant.

B320713

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 pages 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 both 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 have 
2

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 hearing 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 Disposition 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. LOPEZ,

Defendant and Appellant.

B320713

Los Angeles County

Super. Ct. No. BA400013-02

APPEAL from a judgment of the Superior Court of 

Los Angeles County, George G. Lomeli, Judge. Sentence vacated; 

remanded for resentencing with direction.

Brad Kaiserman, 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 Blake 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, 

§ 11379, subd. (a)), with associated enhancements and special 

circumstances 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 proceedings. 

(People 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 reject 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 BACKGROUND

Lopez was convicted of 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 gang 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 pp. 331–332.) 

For all three murders, the jury found true the special allegation 

1 Undesignated statutory references are to the 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, causing the victim great bodily injury or death

(§ 12022.53, subds. (d) & (e)(1)); in the Lexing and Grant 

murders, the jury also found true allegations that Lopez 

personally 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 gang

(§ 186.22, subds. (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 

three 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, the 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 appealed. In Lopez, supra, 73 Cal.App.5th at 

page 348, we affirmed his convictions but vacated the gang 

enhancements under section 186.22, the special circumstance 

findings under section 190.2, subdivision (a)(22), and the gangrelated firearms enhancements under section 12022.53, 

subdivision (e), all because of changes in the law made by 

Assembly Bill No. 333 (2021–2022 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 circumstances under amended section 186.22. (Lopez, at 

pp. 346, 348.)
4

On May 11, 2022, the trial court conducted a resentencing 

hearing. Lopez’s counsel requested the hearing be continued for 

two reasons. First, counsel wanted to explore with the People a

recommended sentence of life with the possibility of parole rather 

than life without 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 ascertain 

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 comply with Assembly 

Bill 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 

circumstances under section 190.2, subdivision (a)(22), and the 

gang-related firearms enhancements under section 12022.53, 

subdivision (e). It imposed a sentence identical to the original 

sentence except for the omission of the vacated enhancements 

and findings: Lopez was sentenced to 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 consecutive midterm sentence of three years for the 

methamphetamine conviction.

After imposing sentence, the court said, “Technically, I 

think he should have been here because it’s a resentencing, but I 
5

was following what they [the Court of Appeal] dictated.” Lopez 

appeals.

DISCUSSION

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 from the trial on substantive 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 admissible at trial. Lopez 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 (Chapman); People v. Watson

(1956) 46 Cal.2d 818 (Watson).)

We recognize the split of appellate opinion on the question

of section 1109’s retroactivity. The Supreme Court has granted 

review to resolve the issue. (People v. Burgos (2022) 

77 Cal.App.5th 550, review 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 [same]; 

People v. Boukes (2022) 83 Cal.App.5th 937, review granted Dec. 

14, 2022, S277103 [same]).)

Even if section 1109 were considered to operate 

retroactively, reversal would not be required here. Our Supreme 
6

Court has rejected the contention 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. Tran (2022) 13 Cal.5th 1169, 1208–

1209.)

Applying the Watson standard, any 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 

circumstance 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 defendant 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 section 1109 makes no reference 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 in at trial due to the section 

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 1040, 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 crossadmissible, prejudice is dispelled].)
7

Contending Montano was incorrectly decided, Lopez 

proposes we consider section 1109 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 section 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 omit 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 the trial court erred in proceeding 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] sentence modification hearing 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) 17 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) [same]; 

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. Davis
8

(2005) 36 Cal.4th 510, 531 [a defendant may waive his or her 

right to 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 proceedings, 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 

evaluated under the harmless-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 proceeding.’ ” (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 [Assembly Bill No.] 333, and otherwise 

sentenced appellant to the same sentence that he received after 

trial and was present in court.” It is true the trial court followed 

our prior opinion insofar as it vacated the portions of the sentence

we instructed it to vacate. (Lopez, supra, 73 Cal.App.5th at 

pp. 346, 348.) However, the court failed to afford the People the 

opportunity to retry the enhancements and special circumstances

in accordance with the changes in the law, as we expressly 

instructed it to do. (Id. at p. 346.) Additionally, 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 counts is appropriate, so the trial court can 
9

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 circumstances; and in 

resentencing Lopez, the court could consider “ ‘any pertinent 

circumstances which have arisen since the prior sentence was 

imposed’ ” in exercising its discretion. (Ibid.)

Given that the 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 absence 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 leniency. 

[Citation.] While 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.5th 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 

fair opportunity to marshal 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, 

subdivision (a)(3), the trial court retained the discretion to elect 
10

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 impose 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 mitigating factors or other information to 

the court. But because the court resentenced Lopez without 

giving his counsel the opportunity to consult with him, counsel 

could not present, and indeed was entirely unaware of, any 

mitigating factors that may have arisen in the years that had 

passed since the original sentencing. Accordingly here, 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 sentencing Lopez in his 

absence 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 “shows that 

it was not inclined to alter its sentence beyond what the appellate 

opinion instructed,” The Attorney General made a similar 

argument in Guerrero, contending that sentencing a defendant in 

absentia was harmless error because the court’s comments 

indicated it would not have imposed 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 found this argument “troubling,” because a 
11

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 properly exercising its wellinformed 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.)

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 both the People and defendant may 

be present and advocate for their positions”].) 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 elect not to retry Lopez on these

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 constitutional 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 here because it’s a 

resentencing,” but justified its actions by stating it was “following 
12

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 instructions of this court, 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.

DISPOSITION

The sentence is vacated and the matter remanded. On

remand, the trial court shall afford the People the opportunity to 

elect whether to retry the gang enhancement allegations under 

section 186.22, the special circumstances allegations under 

section 190.2, subdivision (a)(22), and the gang-related firearm 

enhancement allegations under section 12022.53, subdivision (e). 

If the People elect not to retry Lopez on these 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 right to be present.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J. WILEY, J.