The People v. Lopez
| Docket Number | F082947 |
| Decision Date | 02 August 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LUCIANO GALINDO LOPEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County, No F08902302 F. Brian Alvarez, Judge.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
In 2009, appellant and defendant Luciano Galindo Lopez (appellant) and codefendant Cortney DeJohn Flemming were convicted after a joint jury trial of count 1, second degree murder of Fidel Jimenez (Pen. Code, § 187, subd (a))[1] and count 2, attempted murder of Adam Mirelez (§§ 187, subd. (a), 664). The jury further found that as to count 1, codefendant Flemming personally and intentionally discharged a firearm, proximately causing death (§ 12022.53, subd. (d)); and as to count 2, that he personally and intentionally discharged a firearm (id., subd (c)). As to appellant, the jury found as to both counts that a principal was armed with a firearm (§ 12022, subd (a)(1)).
Appellant was sentenced to eight years plus 15 years to life. Codefendant Flemming was sentenced to 27 years plus 40 years to life. This court affirmed the judgments in a joint direct appeal.
In 2019, appellant filed a petition for resentencing pursuant to former section 1170.95[2] and alleged he was convicted of murder based on the felony-murder rule and/or the natural and probable consequences doctrine. The trial court appointed counsel, conducted a hearing, and found he was ineligible for resentencing as a matter of law. In doing so, the trial court made factual findings from the reporter's transcript of the trial record and the factual statement from this court's opinion in the direct appeal.
On appeal, appellant contends the trial court improperly made factual findings when it found his petition failed to state a prima facie case for resentencing, and the matter must be remanded for issuance of an order to show cause (OSC) and an evidentiary hearing because the jury was instructed on aiding and abetting and the natural and probable consequences doctrine, and the prosecutor relied on these theories in his closing argument. The People concede the trial court improperly made factual findings, and the matter must be remanded for an OSC and an evidentiary hearing.
We agree the trial court improperly made factual findings when it found appellant's petition failed to state a prima facie case and denied the petition without issuing an OSC. We further find the court's error was prejudicial because the instructions and the prosecutor's closing argument show the jury was instructed that appellant could be convicted based on either direct aiding and abetting with his own intent to kill, or on aiding and abetting and the natural and probable consequences doctrine based on the target offense of assault with a deadly weapon or by means of force likely to result in great bodily injury. As a result, the matter must be remanded for issuance of an OSC and for the trial court to conduct an evidentiary hearing.
FACTS[3]
The Initial Investigation and Fidel Jimenez's Death[4]
At around 11:45 p.m. on March 23, 2008, which was Easter Sunday, Fresno Police Officers Garcia and Lujan were dispatched to a report of a shooting at the Liquor King at Herndon and Blackstone. It was a day on which cruising was allowed, so traffic on Blackstone was heavy. The large parking lot, which served Liquor King and several other businesses, contained numerous cars and people. When the officers arrived, cars were leaving the lot and people were running in every direction.
Officer Garcia observed a gray or silver truck that appeared to have collided with a building. The truck's driver, Fidel Jimenez, was slumped over on the truck's seat. He was bleeding from the face or head and had a slight pulse. Someone in the crowd that had gathered advised he had been shot. There was broken glass on the truck's seat and two tall beer cans on the floorboard.
Officer Lujan began crowd control, while Officer Garcia and Sergeant Alvarez, who was now at the scene, tried to extricate Jimenez. Jimenez lost his pulse, but the officers were able to get it back. Emergency personnel then arrived and took over. Alvarez ordered the entire parking lot locked down and put out a preliminary radio broadcast containing information he had received concerning a white Mustang that may have been involved. The car, which contained an African-American male and possibly a Hispanic, had left at a high rate of speed.
There was what appeared to be bullet impact damage to the door frame of a business just south of the one into which the pickup had crashed. There was a bullet entry hole on the passenger side pillar of the pickup, and a deformed bullet fragment was found in the corresponding wall panel. Although a number of latent prints were lifted from vehicles, cans, bottles, and other trash in the parking lot, none could be identified as belonging to Lopez or Flemming. No firearms were found in the pickup nor was an antitheft device called the "Club." However, an open flip-style cell phone was found on the passenger side floorboard of the vehicle.
The entire strip mall/parking lot area was searched for evidence. No Club security devices, bars, or anything else that might be used as a weapon were located. No shell casings were found.
Fidel Jimenez suffered a gunshot wound to the head, behind the right ear, with injuries to the left back of the brain and the cervical spine. He was alive but paralyzed from the neck down when brought to the hospital, and he remained that way until April 1, 2008. On April 1, his neurological status began to change, and it was determined he had developed an aneurysm in the area of several bullet fragments. A corrective procedure was unsuccessful, and Jimenez's family made the decision to withdraw life support. He died on April 4. The cause of death was related to injuries to the brain and spinal cord, with those injuries having been caused by the gunshot wound to the head that he sustained on March 23. The wound course was inconsistent with him looking at the shooter at the time the bullet struck him but was consistent with him looking straight ahead.
Witness Accounts[5]
On the evening of March 23, 2008, Adam Mirelez and Jimenez, his longtime friend, went cruising on Blackstone. Jimenez was driving his 1986 primer-gray Silverado pickup. Mirelez was sipping from a can of beer. He never saw Jimenez drinking that night, although there was a second beer can in the truck.
Blackstone was fairly crowded, and at some point, they pulled into the parking lot on the southwest corner of Herndon and Blackstone, where the Liquor King was located. There was a speed bump as they first came in, and a crowd of people and cars. Mirelez estimated they were going five miles per hour or less. Jimenez was on his cell phone.
The car stopped by a median before it reached the crowd of people. Jimenez and Mirelez were trying to get through, but there were people everywhere. As they waited for people to move, Mirelez saw appellant on the sidewalk on the driver's side of the truck, almost 10 feet away. Appellant came up to Jimenez's window, which was open, and angrily yelled a couple of times, "What's up, homey?" Jimenez nodded his head at appellant as if to say, "What's up," but he was not really paying attention because he was on the phone.
Appellant then came to Mirelez's side and said the same thing numerous times. Mirelez, who had a can of beer in his hand, put the beer in his lap and pulled the door handle, but the door did not open any distance. Appellant then punched him in the nose through the window, causing Mirelez's nose to bleed profusely. Mirelez leaned down toward Jimenez and grabbed the beer can, which was between his legs. He then raised back up. He never attempted to strike appellant; as far as he knew, there was nothing in the truck he could have used to do so. Jimenez did not have a Club.
Appellant stepped back and yelled at his friend, The friend, a tall African-American who was wearing a white sweater and possibly a hood, seemed to come out of nowhere. He pulled a gun from his pocket or belt area and pointed it at Mirelez from a little over six feet away. Mirelez ducked down, heard a shot, and then felt the truck go forward. It hit something, then went over the curb and into a store. He heard two shots altogether. Because he had ducked down, he did not see what happened to appellant or the African-American male after the shooting. Mirelez believed that if he had not ducked down, he possibly would have been shot. The bullet came through the window where he had been sitting. He had been sitting between the gun and Jimenez.
Once the truck hit the building, Mirelez got out and looked at Jimenez. Mirelez did not see any blood, but he could not get Jimenez to wake up. Mirelez then ran. He had just been shot at; there were people everywhere, and he did not know if his assailants were still around or what was going on. He returned within a minute, and the police soon arrived.
When subsequently interviewed by Detective Byrd, Mirelez described the shooter as wearing a fitted baseball cap and a white zip-up, hooded sweater. Shown a photographic lineup, Mirelez selected appellant's picture and said it looked most like the person who hit him and said to pull out the pistol. Byrd also showed Mirelez a...
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