Filed 5/25/22 P. v. Lopez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT LOPEZ, JR.,

Defendant and Appellant.

 B316490

 (Los Angeles County

 Super. Ct. No. VA057914)

APPEAL from an order of the Superior Court of 

Los Angeles County, Joseph R. Porras, Judge. Dismissed.

Marilee Marshall, under appointment for the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

——————————
2

Robert Lopez, Jr., appeals from the denial of his petition for 

resentencing under Penal Code1 section 1170.95. Lopez’s 

appointed counsel filed a brief asking this court to proceed under

People v. Serrano (2012) 211 Cal.App.4th 496.

A jury convicted Lopez of second degree murder with a true 

finding that Lopez personally used a knife during the commission 

of the crime. At trial, Lopez did not dispute that he stabbed and 

killed the victim in an altercation over a bicycle. Lopez testified

in his own defense, stating that his bicycle had been stolen, and 

two days later, he saw the victim riding his stolen bicycle. Lopez 

admitted that he took a knife and ran toward the victim, after 

which the two began to fight. Witnesses saw Lopez grab the 

victim and stab him in the neck. Lopez testified he accidentally 

stabbed the victim. Lopez was sentenced to 15 years to life, plus 

one year for the weapon enhancement. The trial court did not 

instruct on felony murder or natural and probable consequences. 

A different panel of this division affirmed the judgment in People 

v. Lopez (Oct. 2, 2002, B148880) [nonpub. opn.], finding sufficient 

evidence of implied malice to support Lopez’s second degree 

murder conviction.

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

(Senate Bill 1437) became effective, which amended sections 188 

and 189, to narrow the scope of aider and abettor liability for 

murder, and added a petitioning procedure under 

section 1170.95. (Stats. 2018, ch. 1015, §§ 1–4.) Second degree 

implied malice murder was not eliminated by Senate Bill 1437, 

which “removed the natural and probable consequences doctrine 

as a basis for a murder conviction only insofar as it applied to 

1 All further statutory references are to the Penal Code.
3

aider and abettor liability.” (People v. Roldan (2020) 

56 Cal.App.5th 997, 1004.)

Lopez petitioned for resentencing. The trial court held a

section 1170.95 hearing, and, at the prima facie stage of review, 

counsel for Lopez argued that the language in the implied malice 

instruction refers to “natural consequences,” thereby bringing it 

within the changes brought by Senate Bill 1437. The People 

argued that the theories of natural and probable consequences 

and implied malice are distinct doctrines, and Senate Bill 1437 

did not eliminate the implied malice doctrine. The trial court 

found that a prima facie case was not established and denied the 

petition stating it had considered the “record of conviction, 

arguments, jury instruction, the prosecutor’s closing argument, 

[and] the appellate opinion,” and “this court is very confident” 

that neither the “natural and probable consequences theory [n]or 

felony murder” were an issue in the case, and “[i]t was defendant 

convicted as the actual killer.”

Lopez’s appointed counsel declared she was unable to find 

any arguable issues. By letter, we advised Lopez that he had 

30 days to submit by brief or letter any contentions or argument 

he wished this court to consider. Lopez did not submit a 

supplemental brief. Under People v. Serrano, supra,

211 Cal.App.4th 496, when appointed counsel raises no issue in 

an appeal from a postjudgment proceeding, an appellate court 

may dismiss the appeal without a review under People v. Wende

(1979) 25 Cal.3d 436. (Serrano, at p. 503.) We have nonetheless 

independently reviewed the record under Wende, and are 

satisfied Lopez’s attorney has fully complied with the 

responsibilities of counsel and no arguable issue exists. (People v. 

Kelly (2006) 40 Cal.4th 106, 119; Wende, at p. 441.)
4

DISPOSITION

The appeal is dismissed. 

NOT TO BE PUBLISHED.

KIM, J.*

We concur:

EDMON, P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.