Filed 9/16/26 P. v. Lopez CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B338622
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA156034
v.
ANDREW LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Andrew C. Kim, Judge. Affirmed as modified,
remanded with directions.
Cliff Gardner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General for Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Andrew Lopez challenges his convictions for first
degree murder with an enhancement for personally using a
firearm, unlawful possession of a firearm, and unlawful
possession of ammunition. He raises a violation of his Sixth
Amendment right to notice based on the trial court instructing
the jury on deliberation and premeditation as a theory of first
degree murder even though the District Attorney failed to plead
it in the information. Lopez also challenges the court’s failure to
instruct that the cautionary limitations in CALCRIM No. 224
apply to both circumstantial evidence and direct evidence. We
reject these arguments. But we conclude that the trial court
improperly imposed the upper term on the firearm enhancement
based on aggravating circumstances which were not pleaded in
the information nor found true by the jury. We order Lopez’s
sentence vacated and remand for resentencing but otherwise
affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The shooting
On May 29, 2021, Ramiro Avalos was working at All Day
Tire, located at 4200 Florence Avenue in Bell, California, when
he saw Lopez get out of a black 2006 or 2007 Mercedes Benz,
which stopped in the driveway. Avalos recognized Lopez from
helping him at the shop since 2009. He lost sight of Lopez who
walked to the front.
About a minute later, Avalos heard a gunshot. He saw
Lopez and a second man, who was later identified as his brother
2
Adrian Lopez,1 return to the Mercedes and leave. Avalos walked
to a white Chevy Suburban and saw a man lying on the ground
behind it. The man was later identified as Francisco Monclova.
The Las Palmitas Fruit restaurant was located at 4214
Florence Avenue, next to All Day Tire and a Wendy’s fast-food
restaurant. A cashier at the Las Palmitas named Kimberly
Vargas saw a black car drive into the parking lot. Vargas saw
two men get out and walk toward a white truck. Vargas heard a
loud noise and saw the two men run back to the black car. She
ran to the back of the restaurant to look at the cameras. Vargas
saw Monclova on the ground in between a trash can and the
white truck. Vargas ran outside. The black car was gone.
Vargas called 911.
Bertha Lopez2 and her mother were walking home from a
store near the Las Palmitas restaurant. Bertha heard two loud
noises that she initially thought were firecrackers. She continued
walking and saw a white Suburban parked in the lot next to the
Las Palmitas. Bertha saw Monclova on the ground. She told him
to get up but he did not respond.
Bell Police Officer Javier Quintero responded to a shots-
fired call at the Las Palmitas. He found Monclova with a gunshot
wound to his right shoulder. Monclova was lying on the ground
behind a white Suburban. A pool of blood was on the ground
near Monclova and blood was also on the driver’s seat of the
Suburban.
1 To avoid confusion with Lopez, we refer to Adrian Lopez as
Adrian.
2 To avoid confusion with Lopez, we refer to Bertha Lopez as
Bertha.
3
B. Video recordings
Los Angeles County Sheriff’s Department Detective
Leopoldo Sanchez responded to the scene. He saw the white
Suburban parked in the lot. He obtained surveillance video
recordings from the nearby businesses, including the Las
Palmitas, the All Day Tire, and the Wendy’s, to try to identify the
black sedan.
The video from the Las Palmitas showed the white
Suburban enter the parking lot. It showed Lopez get out of the
black sedan from the front passenger side and Adrian get out of
the rear driver’s side. They walked toward the driver’s side of the
Suburban.
The video showed Lopez reached for an item in his right
pocket, looked at it, and made a motion which Detective Sanchez
described as “racking a round.” This motion was consistent with
pulling back the slide of a semiautomatic handgun to chamber a
round. According to Detective Sanchez, the video recording, as
well as a still image of it, showed Lopez holding a gun in a ready
position. Detective Sanchez stated that it was possible that the
black object held by Lopez was a cell phone. Detective Sanchez
also stated it was possible that Lopez was either putting away his
cell phone or opening a folding knife when he made the motion
described as “racking a round.”
The video showed Adrian holding a gun in his right hand
when he ran around the rear of the Suburban to the driver’s side.
When Lopez reached the Suburban’s driver door, its brake lights
illuminated. Adrian appeared to push Lopez toward the front of
the Suburban and Monclova fell near the rear bumper. The video
showed Adrian and Lopez return to the Mercedes.
4
One of the surveillance videos depicted a temporary
California license plate on the black sedan. Detective Sanchez
discovered that the registered owner was Erika Diaz. He further
determined that Lopez’s mother Rosavelia Ortiz was using the
car.
C. Lopez’s interview
On June 10, 2021, Detective Sanchez and Detective Ray
Lugo interviewed Lopez. Lopez told them that Monclova was the
boyfriend of his mother Ortiz.3 Monclova had abused Ortiz and
Lopez for a couple years. At times, they would all stay in a hotel
together.
After initially claiming that he did not do anything, Lopez
told the detectives that he went to the Las Palmitas with Ortiz to
beat up Monclova. Lopez said that he challenged Monclova to a
fight. Monclova pulled out a gun. They struggled over the gun,
and it discharged. Lopez said he threw away the gun at the
beach.
The detectives showed still photos from the surveillance
videos to Lopez. He identified himself next to the Suburban in
the photos. He also identified Monclova as the man lying on the
ground next to the Suburban. When the detectives showed Lopez
a photo depicting Adrian, he initially said that the person
depicted was a family friend. Later, Lopez denied knowing the
other person. When asked if the other person was Adrian, Lopez
said he was not sure. Lopez claimed that he did not know where
Adrian was because he had not seen him in a couple weeks.
3 Lopez referred to Monclova as Pancho and Frankie. For
consistency, we refer to him as Monclova.
5
The detectives told Lopez that they knew that he and
Adrian had guns. But Lopez initially claimed that he had his
“phone or something.” Detective Sanchez told Lopez that the
video depicted him “racking a round,” and asked if he made the
loading motion with his cellphone. Lopez responded, “I don’t
know.”
Detective Lugo told Lopez that they were going to start
over and he wanted Lopez to tell the truth. Lopez agreed and
told the detectives that they first saw Monclova at the Wendy’s,
which was at the same location as the Las Palmitas. Lopez said
that they drove off and he convinced his mother to return to the
Las Palmitas.
Lopez admitted that he had a gun and described it as a
nine-millimeter. Lopez claimed he was scared and decided to
arm himself with a gun because Monclova and his “homies”
would always beat him up. He said that “probably like, a couple
days before” the shooting, Monclova chased Ortiz with a knife.
Lopez told the detectives that he approached Monclova on
the driver’s side of the Suburban. Lopez admitted that he racked
the slide of the gun to load the chamber, as he approached
Monclova. He claimed that he was going to scare Monclova.
Lopez pointed the gun at him. Monclova reached for Lopez’s gun.
According to Lopez, when they struggled for the gun, it
discharged. Lopez said that he shot Monclova because he
panicked and he was stupid.
Lopez said Adrian was sitting behind him in Ortiz’s car.
Lopez told the detectives that he was not sure whether Adrian
had a gun. Lopez said after he shot Monclova, he was scared and
tripping out. He returned to the car and did not check on
Monclova.
6
D. Additional investigation
Dr. Michael Harrell, a Deputy Medical Examiner for the
Los Angeles County Medical Examiner-Coroner, testified about
the autopsy conducted on Monclova by Dr. Guan and Dr. Parks
on June 7, 2021. Dr. Harrell determined that the cause of death
was a gunshot wound to Monclova’s neck.
Senior criminalist Samantha Ingalls from the Medical
Examiner-Coroner conducted the technical review for a gunshot
residue kit collected from Monclova. Ingalls determined that no
gunshot residue was detected on his hands and two particles
consistent with gunshot residue were found on his face.
On June 8, 2021, Sheriff’s Department Criminalist April
Whitehead examined the Suburban and found a fired bullet in
the armrest. After performing a typing caliber determination on
the projectile, Whitehead determined it was consistent with nine-
millimeter Luger.
II. Procedure
On March 20, 2023, a jury found Lopez guilty of first degree
murder (Pen. Code, §187, subd. (a); count 4),4 unlawful possession
of a firearm (§ 29815, subd. (a); count 5), and unlawful possession
of ammunition (§ 30305, subd. (a)(1); count 6).5 As to the murder,
the jury found the personal use of a firearm enhancement
(§ 12022.5, subd. (a)) true. The jury also found true the special
4 All further undesignated statutory references are to the
Penal Code.
5 Prior to trial, the trial court granted the District Attorney’s
motion to dismiss counts 1, 2, 3, and 7.
7
allegation that the murder was willful, deliberate, and
premeditated.
The trial court imposed a term of 25 years to life for the
murder in count 1, plus the upper term of 10 years for the
firearm enhancement. On counts 5 and 6, the court imposed
concurrent terms of two years each.
DISCUSSION
I. Theory of first degree murder
Lopez argues that in the information, the District Attorney
was required to allege first degree murder and the theory on
which it was based for the trial court to instruct the jury on it.
He asserts that the failure to do so deprived him of notice
guaranteed under the Sixth Amendment and the due process
clause of the federal and state constitutions. We reject Lopez’s
argument.
A. Additional facts
The information charged that “the crime of murder, in
violation of Penal Code section 187(a), a felony, was committed by
[Lopez], who did unlawfully, and with malice aforethought,
murder [Monclova], a human being.” When discussing jury
instructions with the trial court, Lopez’s trial counsel objected to
CALCRIM No. 521, which is the instruction that explains the
theory of deliberation and premeditation for first degree murder.
She argued that the District Attorney failed to provide notice of
this theory because the information did not plead it and the
magistrate did not make any specific finding about it at the
conclusion of the preliminary hearing. The prosecutor responded
that an accusatory pleading charging malice murder supports
first degree murder and the evidence in the case also provided
8
notice of this theory of first degree murder. Over the defense
objection, the trial court instructed the jury with CALCRIM
No. 521.
B. Analysis
The California Supreme Court in People v. Soto (1883)
63 Cal. 165 held that the prosecutor need not allege the theory of
deliberation and premeditation to convict the defendant of first
degree murder and impose the sentence of 25 years to life,
instead of 15 years to life, which is the sentence for second degree
murder. The Court reasoned that the defendant could be
convicted of either degree because the information incorporated
the statutory definition which encompassed both first and second
degree murder. (Id. at p. 166.)
Since 1883, the California Supreme Court has consistently
followed the rule established in Soto. (People v. Wright (2021)
12 Cal.5th 419, 454 (Wright); People v. Mora and Rangel (2018)
5 Cal.5th 442, 495–496 (Mora and Rangel); People v. Lopez (2018)
5 Cal.5th 339, 361 (Lopez); People v. Contreras (2013) 58 Cal.4th
123, 148; People v. Hughes (2002) 27 Cal.4th 287, 369 (Hughes).)
The Court continues to hold that a trial court does not violate the
constitutional rights to due process, notice, the beyond a
reasonable doubt standard of proof, or a unanimous verdict by
instructing on first degree murder when the information charges
only malice murder under section 187, subdivision (a) and not the
theory of first degree murder. (Wright, at p. 454; Mora and
Rangel, at pp. 495–496; People v. Carey (2007) 41 Cal.4th 109,
132 (Carey).) We are bound by stare decisis and reject Lopez’s
constitutional challenge. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
9
Lopez recognizes that we are bound by California Supreme
Court precedent. But he argues that we may depart from
precedent because Soto is contrary to subsequent United States
Supreme Court cases. Specifically, Lopez contends that Soto’s
holding—that premeditation is not an element that needs to be
alleged as theory of first degree murder—is not consistent with
the United States Supreme Court cases that require alleging
elements of an offense that are essential to imposing punishment.
Lopez cites language from Alleyne v. United States (2013)
570 U.S. 99, 109–110 (Alleyne) to assert that under the common
law, there was “a well-established practice of including in the
indictment, and submitting to the jury, every fact that was a
basis for imposing or increasing punishment.” He further asserts
that this common law rule is “codified in the Sixth Amendment,”
citing discussions of it in Blakely v. Washington (2004) 542 U.S.
296, 301–302 (Blakely) and Southern Union Co. v. United States
(2012) 567 U.S. 343 (Southern Union Co.), as well as in Alleyne.
Lopez argues that because Soto conflicts with this common law
rule and these United States Supreme Court cases, the trial court
violated his Sixth Amendment right by instructing on first degree
deliberate and premeditated murder which was not pleaded in
the information.
But none of the United States Supreme Court cases cited
by Lopez specifically held that any fact that increases
punishment must be charged in an accusatory pleading. Instead,
each of these cases focused on the principle established by
Apprendi v. New Jersey, which held, “Other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
10
a jury, and proved beyond a reasonable doubt.” 6 (Apprendi v.
New Jersey (2000) 530 U.S. 466, 490 (Apprendi); Southern Union
Co., supra, 567 U.S. at p. 346 [Apprendi applies to sentences that
impose criminal fines]; Blakely, supra, 542 U.S. at p. 303
[Apprendi applies to increased punishment above the statutorily
prescribed standard range]; Alleyne, supra, 570 U.S. at p. 112
[Apprendi applies to mandatory minimum sentences]; Jones v.
United States (1999) 526 U.S. 227, 243 [Apprendi applies to
statutory provisions that establish higher penalties].)
After Alleyne, the most recent of the United States
Supreme Court cases cited by Lopez, the California Supreme
Court has continued to reaffirm Soto’s holding that the theory of
first degree murder, such as deliberation and premeditation, need
not be alleged in the accusatory pleading.7 (Wright, supra, 12
6 As applied to federal statutes, the requirement is based on
the Due Process Clause of the Fifth Amendment and the Sixth
Amendment right to a trial by an impartial jury. (Alleyne, supra,
570 U.S. at p. 104.) As applied to state statutes, it is based on
the Sixth Amendment’s jury trial guarantee, made applicable to
the States by the Fourteenth Amendment. (Ring v. Arizona
(2002) 536 U.S. 584, 597; Apprendi, supra, 530 U.S. at p. 476.)
7 Lopez cites People v. Tully (2012) 54 Cal.4th 952, 1024
[Apprendi does not “require a unanimous jury verdict as to the
particular theory justifying a finding of first degree murder”] and
People v. Salcido (2008) 44 Cal.4th 93, 167 [Apprendi does not
apply to California’s capital sentencing scheme] to support his
assertion that the California Supreme Court requires any fact
that increases the maximum penalty to be “formally charged,” as
well as submitted to a factfinder, treated as an element of the
crime, and proved beyond a reasonable doubt. To summarize the
holding in Apprendi, Tully borrowed this language from People v.
Nakahara (2003) 30 Cal.4th 705, 712–713 [rejecting the
11
Cal.5th at p. 454; Mora and Rangel, supra, 5 Cal.5th at pp. 495–
496; Lopez, supra, 5 Cal.5th at p. 361.) The California Supreme
Court has specifically rejected the argument that a trial court
violates Apprendi by instructing the jury that it could convict the
defendant of first degree murder when the information charged
only malice murder under section 187, subdivision (a) and did not
allege any facts for establishing first degree murder. (Mora and
Rangel, at pp. 495–496; People v. Whisenhunt (2008) 44 Cal.4th
174, 222.) The Court has stated that any reliance on Apprendi is
misplaced because first degree murder was not an “uncharged
crime.” (People v. Friend (2009) 47 Cal.4th 1, 54; Whisenhunt, at
p. 222.) The Court has reasoned that because the statutory
definition of malice murder in section 187, subdivision (a)
includes murder in both degrees, an accusatory pleading that
charges malice murder without specifying the degree is sufficient
to charge murder in either degree. (Whisenhunt, at p. 222; Carey,
supra, 41 Cal.4th at p. 132; People v. Witt (1915) 170 Cal. 104,
107–108.) The Supreme Court stated, it has “repeatedly rejected
identical arguments” like the one raised by Lopez and had no
“reason to depart from [its] long-established rule.” (Mora and
Rangel, at p. 496.)
application of Apprendi to require a unanimous jury verdict for
the particular theory of first degree murder] and Salcido
borrowed language from People v. Anderson (2001) 25 Cal.4th
543, 589, fn. 14 [rejecting the application of Apprendi to
California’s death penalty scheme].) But Tully and Salcido, as
well as Apprendi and its progeny, did not establish any formal
charging requirement of facts that increase the maximum
penalty.
12
Lopez further contends that murder should be treated like
attempted willful, deliberate, and premeditated murder, which
requires a specific finding that the attempted murder was willful,
premeditated, and deliberate. (People v. Arias (2010) 182
Cal.App.4th 1009, 1019–1021; People v. Perez (2017) 18
Cal.App.5th 598, 614–619.) We reject Lopez’s contention.
At the outset, one notable difference between murder and
attempted murder is that section 664, subdivision (a) provides a
specific pleading requirement for a defendant to be subject to the
enhanced punishment provision for attempted willful, deliberate,
and premeditated murder.8 Additionally, unlike murder,
attempted murder is not divided into degrees. (People v. Bright
(1996) 12 Cal.4th 652, 665, 669, overruled on other grounds as
stated in People v. Seel (2004) 34 Cal.4th 535, 543–544.) The
deliberation and premeditation allegation for attempted murder
in section 664, subdivision (a) is a penalty provision, not an
element of the crime. (Bright, at p. 669.) The jury does not
determine the truth of the allegation unless it reaches a guilty
verdict on the substantive offense of attempted murder. (Id. at
p. 661.) Alleging a single statutory definition would not
encompass attempted murder and attempted willful, deliberate
attempted murder as section 187, subdivision (a) does for first
and second degree murder.
8 Section 664, subdivision (a) specifies that “[t]he additional
term provided in this section for attempted willful, deliberate,
and premeditated murder shall not be imposed unless the fact
that the attempted murder was willful, deliberate, and
premeditated is charged in the accusatory pleading and admitted
or found to be true by the trier of fact.”
13
Here, the information charged Lopez using the statutory
language of malice murder that includes both first and second
degree murder. Lopez also received notice of the prosecution’s
theory of first degree murder from the evidence presented at the
preliminary hearing. (People v. Diaz (1992) 3 Cal.4th 495, 557;
Hughes, supra, 27 Cal.4th at p. 369.) We conclude that the trial
court did not violate Lopez’s constitutional rights by instructing
the jury on first degree willful, deliberate, and premeditated
murder even though it was not specifically alleged in the
information.
II. CALCRIM No. 224
The trial court instructed the jury with CALCRIM No. 224,
the instruction on circumstantial evidence.9 This instruction
cautions the jury in three ways. First, if the prosecutor relied on
circumstantial evidence to establish guilt, that evidence had to be
proven beyond a reasonable doubt. Second, a conviction based on
circumstantial evidence is prohibited unless the only reasonable
conclusion supported by that evidence was that Lopez was guilty.
Third, if two reasonable conclusions could be drawn from the
circumstantial evidence—one pointing to innocence and one
pointing to guilt—the jurors were required to adopt the
conclusion pointing to innocence.
Lopez acknowledges that CALCRIM No. 224 provides these
cautionary principles. But he argues that by stating these
9 CALCRIM No. 224 states:
“Before you may rely on circumstantial evidence
to conclude that a fact necessary to find the
defendant guilty has been proved, you must be
convinced that the People have proved each fact
14
principles only in the circumstantial evidence instruction and not
in the direct evidence instruction, the court “logically told jurors
that [they] did not apply to direct evidence.” Lopez argues that
this was particularly problematic at his trial because direct
evidence in the form of video recordings was interpreted
differently by the defense and prosecution. According to Lopez,
without including the language in the direct evidence instruction,
the jury would convict even if the direct evidence was
“reconcilable with innocence.” We reject Lopez’s argument.10
essential to that conclusion beyond a reasonable
doubt.
“Also, before you may rely on circumstantial
evidence to find the defendant guilty, you must
be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that
the defendant is guilty. If you can draw two or
more reasonable conclusions from the
circumstantial evidence, and one of those
reasonable conclusions points to innocence and
another to guilt, you must accept the one that
points to innocence. However, when considering
circumstantial evidence, you must accept only
reasonable conclusions and reject any that are
unreasonable.”
10 We address Lopez’s argument even though his trial counsel
did not raise it or request to clarify it. (People v. Livingston
(2012) 53 Cal.4th 1145, 1166 (Livingston).) We also recognize
that counsel need not pursue meritless arguments. (People v.
Prieto (2003) 30 Cal.4th 226, 261.) Accordingly, we need not
discuss whether trial counsel was ineffective for not raising the
challenge.
15
People v. Anderson, cited by the Attorney General, rejected
the argument that because CALCRIM No. 224 applied the
standard of proof and burden of proof to circumstantial evidence,
it “gives the false impression” that they do not apply to direct
evidence. (People v. Anderson (2007) 152 Cal.App.4th 919, 931
(Anderson).) The court clarified that the “obvious purpose of the
instruction is to limit the use of circumstantial evidence” to prove
guilt to those instances when the only reasonable inference that
may be drawn from it points to guilt. (Ibid.)
“The same limitation does not apply to direct evidence.”
(Anderson, supra, 152 Cal.App.5th at p. 931.) Circumstantial
evidence and direct evidence are different. (Livingston, supra, 53
Cal.4th at p. 1166.) Circumstantial evidence involves
determining whether reasonable inferences can be drawn from
the evidence. (Anderson, at p. 931.) “By contrast, direct evidence
stands on its own” because it does not require an inference to be
drawn from it. (Ibid.; People v. Ibarra (2007) 156 Cal.App.4th
1174, 1187 (Ibarra).) “[T]here is no need to decide whether there
is an opposing inference that suggests innocence.” (Anderson, at
p. 931.) “Differentiating between direct and circumstantial
evidence does not undermine the reasonable doubt standard or
presumption of innocence.” (Livingston, at p. 1166.)
As clarified in Anderson, the standard of proof and burden
of proof are applied but not explained in CALCRIM No. 224.
(Anderson, supra, 152 Cal.App.5th at p. 931.) Instead, CALCRIM
No. 220, read by the court here, unequivocally explained to the
jury that a defendant is presumed innocent and the prosecutor
must prove he is guilty beyond a reasonable doubt to convict him.
It also explained to the jury that whenever the court said the
prosecutor must prove something, it meant she must prove it
16
beyond a reasonable doubt. This instruction applied to all
evidence, whether direct or circumstantial.
We see no reason to depart from the conclusion in Anderson
and the subsequent cases that have consistently rejected
arguments similar to those raised by Lopez here.11 (Ibarra,
supra, 156 Cal.App.4th at pp. 1186–1187; People v. Smith (2008)
168 Cal.App.4th 7, 18; see People v. Golde (2008) 163 Cal.App.4th
101, 117–118 [rejecting similar challenge to CALCRIM No. 225].)
III. Firearm enhancement
Lopez argues that the trial court committed error by
imposing the upper term for the firearm enhancement when he
had not stipulated to any aggravating circumstances and the jury
had not found any to be true beyond a reasonable doubt.
A. Additional facts
At the sentencing hearing, the prosecutor requested the
upper term for the firearm enhancement which was found true by
the jury. She conceded that no aggravating circumstances were
alleged against Lopez to support imposing the upper term on the
enhancement. But she asserted that the evidence showed Lopez
committed the crime with planning, sophistication, and
professionalism, which is a factor in aggravation under California
Rules of Court, rule 4.421(a)(8). The prosecutor recounted
Lopez’s calculated behavior which included watching the victim
at the location prior to the shooting, following him after he
11 The California Supreme Court has also rejected similar
challenges to CALJIC No. 2.01, which is the CALJIC equivalent
instruction to CALCRIM No. 224. (Livingston, supra, 53 Cal.4th
at p. 1166; People v. Lucas (2014) 60 Cal.4th 153, 298–299.)
17
parked, and attacking him while he was eating. The prosecutor
described Lopez’s act as “coldhearted” and “ruthless” and
committed with “disregard for human life.” The prosecutor also
stated that Lopez had been convicted of additional crimes for
which consecutive sentences could have been imposed.
Lopez’s trial counsel reminded the court that no
aggravating circumstances were found true by a jury. She
requested that the court impose the mid-term for the firearm
enhancement.
The trial court found the aggravating factors stated by the
prosecutor true and imposed the upper term of 10 years on the
firearm enhancement.
B. Analysis
Section 1170.1, subdivision (d)(2) permits a trial court to
impose the upper term for a sentencing enhancement “only when
there are circumstances in aggravation that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.”
The California Supreme Court stated, “[A] Sixth
Amendment violation occurs when the trial court relies on
unproven aggravating facts to impose an upper term sentence,
even if some other aggravating facts relied on have been properly
established.” (People v. Lynch (2024) 16 Cal.5th 730, 768
(Lynch).) The court further stated, “The violation is prejudicial
unless an appellate court can conclude beyond a reasonable doubt
that a jury would have found true all of the aggravating facts
relied upon by the trial court to justify an upper term sentence, or
18
that those facts were otherwise proved true in compliance with
the current statutory requirements. If the reviewing court
cannot so determine, applying the Chapman standard of review,
the defendant is entitled to a remand for resentencing.” (Ibid.)
The District Attorney failed to allege any aggravating
circumstances against Lopez in the information. The prosecutor
merely argued that the evidence supported aggravating facts that
she described for the first time at the sentencing hearing. These
aggravating circumstances—the offense was committed with
planning, sophistication, and professionalism, and it was
“coldhearted,” “ruthless,” and committed with “disregard for
human life”—rest on a “subjective standard,” making it
“ ‘ “difficult for a reviewing court to conclude with confidence that,
had the issue been submitted to the jury, the jury would have
assessed the facts in the same manner as did the trial court.” ’
[Citations.]” (Lynch, supra, 16 Cal.5th at p. 775.)
This case could be viewed by jurors either in the terms
described by the prosecutor as aggravating circumstances or as
unremarkable for a murder. The Attorney General highlights the
facts to support deliberation and premeditation including Lopez’s
arrival in a vehicle at the victim’s location armed with a firearm.
On one hand, shooting at a commercial parking lot on a city
street with pedestrians arguably demonstrates a disregard for
human life.12 But on the other hand, it could also show his lack
of sophistication and professionalism because of the increased
12 The Attorney General asserts that these facts also
demonstrate that Lopez engaged in violent conduct that indicated
a serious danger to society, which is an aggravating circumstance
under California Rules of Court, rule 4.421(b)(1). The prosecutor
did not refer to this aggravating circumstance.
19
likelihood of being identified and apprehended. His post-shooting
conduct—flight, making no effort to assist the victim, and
discarding the firearm—was not particularly aggravated for a
violent crime even if it might show callousness, as the Attorney
General contends. As cautioned in Lynch, we have difficulty
predicting whether the jury would have weighed all these facts in
the same manner as the trial court. (Lynch, supra, 16 Cal.5th at
p. 775.)
We cannot conclude that the trial court’s imposition of the
upper term for the firearm enhancement based on each of the
facts to support each of the aggravating circumstances was
harmless beyond a reasonable doubt. We vacate Lopez’s sentence
and remand for resentencing. Because the aggravating
circumstances were not submitted to the jury, the proper remedy
is to remand. On remand, further proceedings are “to be
conducted in accordance with the current statutory requirements
and the defendant given the opportunity for the jury trial, of
which he was deprived,” and the trial court may rely on any
properly proven aggravating circumstances. (Lynch, supra, 16
Cal.5th at pp. 777–778.)
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DISPOSITION
We vacate Lopez’s sentence and remand the matter for
resentencing consistent with this opinion. We direct the clerk of
the superior court to forward an amended abstract of judgment to
the Department of Corrections and Rehabilitation. The judgment
is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
ADAMS, P. J.
OCHOA, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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