People v. Lopez, B271516

• Court: California Court of Appeals
• Writing for the Court: PERLUSS, P. J.
• Citation: 38 Cal.App.5th 1087,252 Cal.Rptr.3d 33
• Parties: The PEOPLE, Plaintiff and Respondent, v. Janeth LOPEZ et al., Defendants and Appellants.
• Docket Number: B271516
• Decision Date: 21 August 2019

38 Cal.App.5th 1087
252 Cal.Rptr.3d 33

The PEOPLE, Plaintiff and Respondent,
v.
Janeth LOPEZ et al., Defendants and Appellants.

B271516

Court of Appeal, Second District, Division 7, California.

Filed August 21, 2019

Certified for Partial Publication.^*

John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Janeth Lopez.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Ivy Navarrete.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Amanda V. Lopez, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P. J.

38 Cal.App.5th 1091

An act of vandalism—spraying graffiti on a church wall—ended with one person dead and a second wounded. The shooter, Pedro Martinez, was convicted of first degree murder and attempted premeditated murder. Following a mistrial and a second trial, Janeth Lopez, who had

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marked the church wall with spray paint, and Ivy Navarrete, who drove Martinez and Lopez away from the church after the shooting, were convicted of second degree murder and attempted premeditated murder with special findings the offenses had been committed to benefit a criminal street gang and a principal had personally discharged a firearm causing death or great bodily injury to the victims.

In a nonpublished opinion filed in August 2017 we rejected Lopez's and Navarrete's challenges to the propriety of their convictions for murder and attempted murder under the natural and probable consequences doctrine and to the sufficiency of the evidence to support the finding the crimes had been committed to benefit a criminal street gang, affirmed the judgment as modified to correct sentencing errors and remanded as to Lopez for further proceedings pursuant to People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ).

Lopez's and Navarrete's petitions for review were granted by the Supreme Court in November 2017, but further action was deferred pending consideration of a related issue in People v. Mateo , review granted May 13, 2016, S232674, transferred to court of appeal March 15, 2019—whether, to convict an aider and abettor of attempted premeditated murder under the natural and probable consequences doctrine, both premeditation and attempted murder must have been reasonably foreseeable by an individual committing the target offense. Before that case was decided, the Legislature enacted Senate Bill No. 1437 (SB 1437) (Stats. 2018, ch. 1015), which

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"amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder." (Id. , § 1, subd. (f).) The Supreme Court then transferred this case to us with directions to vacate our decision and to reconsider it in light of SB 1437, as well as Senate Bill No. 620 (SB 620) (Stats. 2017, ch. 682), effective January 1, 2018, which authorized the trial court to strike or dismiss certain previously mandatory firearm enhancements. (People v. Lopez (Apr. 10, 2019, S243921) [2019 Cal. Lexis 2386].)

SB 1437 eliminates aider and abettor liability for murder under the natural and probable consequences doctrine, the sole theory advanced by the People at trial for convicting Lopez and Navarrete of murder. On remand Lopez and Navarrete will have the opportunity to petition the trial court, pursuant to newly enacted Penal Code section 1170.95,¹ to vacate their murder convictions and to be resentenced unless the People establish beyond a reasonable doubt that either of them is not entitled to be resentenced. (See § 1170.95, subd. (d)(3).) Lopez's and Navarrete's statutory and constitutional arguments to the contrary notwithstanding, however, SB 1437 does

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not affect their convictions for attempted premeditated murder under the natural and probable consequences doctrine.² Accordingly, we again affirm those convictions, as well as the related criminal street gang enhancements. On remand the trial court must also correct several sentencing errors, consider whether to exercise its discretion to dismiss or strike the firearm enhancement imposed on the attempted murder counts and conduct further proceedings pursuant to Franklin , supra , 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 as to Lopez.

FACTUAL BACKGROUND

1. The Shootings

In the early evening of November 4, 2012 Hipolito Acosta, Santos Baquiax and Andres Ordonez were in the back parking lot of a church at the corner of Beverly Boulevard and Reno Street in Los Angeles, preparing food for members of the congregation. When they heard the sound of shattering glass from the street, Acosta went to investigate. He saw Lopez spray painting graffiti on the wall of the church and asked what she was doing. Lopez replied, "Fuck off," and ran at Acosta, hitting him on the arm with the spray paint can. Lopez knocked Acosta to the ground and kicked him, all the while yelling at him.

As Lopez was attacking Acosta, Baquiax and Ordonez came out from the parking lot. When Baquiax was about six feet from Acosta, and Ordonez about 12 feet away, Lopez ran to a BMW parked in front of the church. Acosta saw her throw the spray paint can on the ground.

As Lopez ran back to the BMW, Martinez got out of the back seat of the car and fired three or four shots in the direction of Baquiax and Ordonez. One bullet hit Baquiax in the shoulder, and he fell to the ground. Another bullet struck Ordonez in the chest; he managed to walk back to the parking lot, where he collapsed. Ordonez died from the bullet wound to his chest.

Martinez returned to the BMW. Baquiax saw someone in the driver's seat but could

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not tell if it was a man or a woman. The BMW drove away.

2. The Investigation

Officers from the Los Angeles Police Department arrived at the scene shortly after the shootings. They recovered three shells, which had been fired from a semiautomatic weapon, from the sidewalk and found a spray paint can

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by the curb. Lopez's fingerprint and DNA were on the can. The police also found a broken beer bottle in the gutter near the spray paint can. Navarrete's fingerprint and DNA were on the bottle. Graffiti found on a nearby building contained three names: "Looney," "Wicked" and "Ivy." It also had the words, "Fuck Tampax."

On November 7, 2012 Baquiax identified Lopez from a photographic lineup as the woman he saw hitting Acosta. Baquiax also identified Martinez from a photographic lineup as the shooter. On November 8, 2012 Acosta also identified Lopez from a photographic lineup. He was not certain of his identification but thought she "could be the one."

Officers arrested Lopez at her home a few miles from the crime scene on November 8, 2012. The following day Navarrete's home was searched. The officers found a letter Lopez sent to Navarrete in 2008 that referred to "Rockwood" and was signed "from Looney." Officers also found a photograph of Lopez and Navarrete together; Lopez was making a Rockwood Street gang hand symbol.

At the time of the church shooting Navarrete had been living with Sonia Vallejo. Navarrete and Vallejo's stepson had a child together. According to Vallejo, Navarrete and Lopez were close friends and spent weekends together. Navarrete, who drove a grey BMW, provided transportation for Lopez, who did not have a car. Navarrete also talked to someone named Pedro or Peter.

On the day of the shooting, Friday, November 4, 2012, Navarrete told Vallejo she was going to be with Lopez. Navarrete returned home Sunday night. Several days later Navarrete was gone, leaving her child and all her belongings at Vallejo's home. Navarrete and Martinez were found and detained in Mexico in February 2013.

The police examined cell phones belonging to Lopez, Navarrete and Martinez. Lopez's contacts included Navarrete and Martinez. Navarrete and Martinez had exchanged text messages; Martinez had made calls to Lopez. On the evening of November 6, 2012 all three cell phones had been in the same general area near Lopez's home and near the scene of the shooting.

3. Gang Evidence

Los Angeles Police Officer Antonio Hernandez testified Rockwood Street was a criminal street gang that had started in the early 1980's. In November 2012 it had about 180 members, including 20 active members. (Officer Hernandez defined active members as members who were not incarcerated.) The gang had its own territory, symbols and hand signs. The gang's primary

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activities included murder, robbery, assault and extortion. Rockwood Street members were convicted of murder in 2007 and 2008.

Officer Hernandez explained Rockwood Street had subsets or cliques based on location. Two of the cliques were Westmoreland and...