People v. Pepe Lopez

Summary

The California Court of Appeal, Fourth District, Division Two, affirmed the denial of Pepe Lopez’s petition for resentencing under Penal Code section 1172.6. The court held that the record, including the jury’s prior-murder special-circumstance finding, established as a matter of law that Lopez acted with intent to kill while aiding or assisting in a qualifying felony, making him ineligible for relief under the amended felony-murder rule. An order filed March 9, 2023, modified the February 23, 2023 opinion by removing footnote 9, with no change in judgment.

Holdings

1. The record conclusively established that Lopez could presently be convicted of first degree felony murder under Penal Code section 189, subdivision (e)(2), because the jury found that he participated in a qualifying felony in which a death occurred and, through the prior-murder special-circumstance finding, found that he acted with the intent to kill.
2. The phrase requiring that a nonkiller, with intent to kill, aided, abetted, or assisted the actual killer in the commission of first degree murder does not require a separate act assisting the physical act of killing; aiding and abetting the qualifying underlying felony that resulted in the murder is sufficient.
3. The superior court properly summarily denied Lopez's section 1172.6 petition.

Questions Presented

1. Whether the record of conviction conclusively established that Lopez could presently be convicted of first degree felony murder under Penal Code section 189, subdivision (e)(2), despite the possibility that he was not the actual shooter.
2. Whether a prior-murder special-circumstance finding that Lopez personally killed or personally shared the specific intent to kill, combined with the jury's felony-murder finding, established the actus reus required for liability under the amended felony-murder statute.
3. Whether the superior court properly summarily denied Lopez's Penal Code section 1172.6 petition without issuing an order to show cause.

Disposition

affirmed