Applying SB 567 to Resentence on Firearm Count

In November 2017, in Indio, California, Fernando Carlos Lopez shot his cousin in the back of his head over an argument about the last remaining cigarette in a packet of cigarettes.

 

Lopez and his cousin had been ingesting methamphetamine and Lopez asked his cousin for a cigarette, as he knew his cousin had a pack of cigarettes.  Lopez knew there was just one cigarette left and hoped his cousin would give it to him, but he refused, smoked it himself and then went out to the front of the house to water the lawn.

According to the cousin, as he was watering the lawn, he heard a loud noise and his ears started to ring.  He bent over and felt the back of his head.  According to him, he “knew something was wrong.”  The cousin then turned around and saw Lopez “fumbling with” a nine-millimeter semi-automatic handgun, which the cousin realized was jammed.

The cousin asked Lopez several times, “why me, primo [cousin in Spanish]?  What’s going on?”  Lopez then told his cousin, “locking eyes with him,” “you’d better run.”  The cousin then ran to the next door neighbor and sought assistance, but the neighbor was not home.  He ran to two more houses, eventually getting a towel and someone called the police.  Lopez was later arrested.

An information was filed in Riverside Superior Court charging Lopez with willful, deliberate and premeditated attempted murder (Penal Code §§ 187(a), 664), assault with a semi-automatic firearm (Penal Code § 245(b)) and being a felon in possession of a firearm (Penal Code § 29800(a)).  The information also alleged that Lopez used a firearm in the commission of the offense (Penal Code § 12022.53(d) and (e)) and that he personally inflicted great bodily injury on the victim (Penal Code § 12022.7(a)).  The information also alleged that Lopez had previously suffered a strike conviction (Penal Code § 667(c)) and a serious felony conviction (Penal Code § 667(a)) and that he had served five prior prison terms (Penal Code § 667.5(b)).

In October 2020, the jury convicted Lopez on all counts and found true each of the enhancements and prior conviction allegations. 

The judge sentenced Lopez to prison for an indeterminate term of 39 years to life, plus a determinate term of 11 years.  The 39-years-to-life term consisted of a term of 14 years to life with respect to count 1 (seven years for attempted murder, doubled for the prior strike), plus an additional 25 years to life for the related firearm enhancement.  The determinate term consisted of an upper term of 6 years for being a felon in possession of a firearm (three years, doubled for the prior strike) and five years more for the prior serious felony enhancement.  The court imposed but stayed the sentence on the assault with a semi-automatic firearm under Penal Code § 654.

Lopez appealed on several grounds, but while his appeal was pending, the Governor of the State of California signed Senate Bill (SB) 567, which made significant changes to Penal Code § 1170 and became effective on January 1, 2022.  Under SB 567, § 1170(b) was changed to make the middle term the presumptive sentence for a term of imprisonment.  A judge must now impose the middle term for any offense that provides for a sentencing triad unless “there are circumstances in aggravation of the crime 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 District Attorney’s Office opposing Lopez’ appeal conceded that SB 567 applied retroactively to all cases not yet final as of January 1, 2022 (see People v. Superior Court (Lara) (2018) 4 Cal. 5th 299, 308), but argued that remanding the case for further sentencing under SB 567 was unnecessary because the judge relied upon facts in aggravation that a jury would found true beyond a reasonable doubt. 

Indeed, the trial court noted the following factors in aggravation at sentencing: (1) the crime involved great violence and cruelty, viciousness or callousness; (2) defendant was armed with a weapon at the time of the crime; (3) the victim was particularly vulnerable; (4) the crime indicated sophistication / planning; (5) the defendant took advantage of a position of trust; (6) the defendant’s violent conduct indicates a serious danger to society; (7) the defendant’s prior convictions are numerous and of increasing seriousness; (8) the defendant served a prior prison term; and (9) defendant’s prior performance on probation, mandatory supervision, post-release community supervision or parole was unsatisfactory.”  California Rules of Court, rule 4.421(a)(1), (a)(2), (a)(3), (a)(8), (a)(11), (b)(1), (b)(2), (b)(3) and (b)(5).

The question then became for the Fourth Appellate District whether the error in not submitting such facts to the jury to find true was a harmless error and prejudicial to defendant.  Chapman v. California (1967) 386 U.S. 18.  This can be found when the factor is overwhelming and uncontested. 

Here, however, the appellate court found it was speculative as to what the jury would  have found true as to each factor, so Lopez’s sentence for the felony firearm possession was vacated and the matter remanded for resentencing.

For more information about Senate Bill 567, please click on the following articles: