Filed 10/20/26 P. v. Lopez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.11 15.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061870
v. (Super. Ct. No. 02NF3143)
GERARDO LOPEZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Terri K. Flynn-Peister, Judge. Reversed with instructions.
Reed Webb, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel
Rogers, Alan L. Amann, and Sharon L. Rhodes, Deputy Attorneys General,
for Plaintiff and Respondent.
* * *
In 2005, Gerardo Lopez was convicted of first-degree murder
(Pen. Code, § 187, subd. (a)) with the special circumstances that the killing
was committed in the course of a robbery and in the commission of a
1
kidnapping (Pen. Code, § 190.2, subd. (a)(17)(A) & (B)). One of the theories
offered by the prosecution at trial was felony murder. (§ 189.)
In 2022, Lopez petitioned the court to be resentenced pursuant to
2
section 1172.6 (former § 1170.95). The trial court denied his petition at the
prima facie stage. The court found the jury’s special circumstance findings
that the “murder was committed while [Lopez] was engaged in or was an
aider and abettor in the commission of kidnapping” and that Lopez harbored
the specific intent to kill disqualified him from resentencing as a matter of
law.
Lopez appealed, and we affirmed the judgment, holding that a
defendant commits felony murder by harboring an intent to kill and
participating in the underlying felony, even if the defendant did not
participate in the killing itself. The California Supreme Court granted
Lopez’s petition for review and held the matter pending the outcome of People
v. Morris (2026) 19 Cal.5th 671 (Morris).
In Morris, the California Supreme Court specifically disapproved
of our holding, concluding that felony murder requires participation in the act
of killing, not just the underlying felony. (Morris, supra, 19 Cal.5th at p. 678.)
Our high court remanded the matter to us with instructions to vacate our
prior opinion and reconsider the matter in light of Morris.
1
All statutory references are to the Penal Code.
2
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2
Both parties filed supplemental briefs after the matter was
remanded to this court. The People concede that Morris requires a reversal
because “the record of conviction in this case no longer appears to
demonstrate that Lopez is ineligible for section 1172.6 relief as a matter of
law.” We agree. The record does not demonstrate as a matter of law that
Morris participated in the killing act.
DISPOSITION
Our prior opinion in this matter is vacated. The trial court’s order
denying Lopez’s petition for resentencing at the prima facie stage is reversed.
The trial court is instructed to issue an order to show cause pursuant to
section 1172.6, subdivision (c), and to hold an evidentiary hearing pursuant
to section 1172.6, subdivision (d).
SERVINO, J.
WE CONCUR:
MOTOIKE, P. J.
DELANEY, J.
3
