Filed 10/5/20 P. v. Lopez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


 THE PEOPLE,
                                                                                             F077946
             Plaintiff and Respondent,
                                                                              (Super. Ct. No. CF99640276)
                    v.

 DANIEL SAPIEN LOPEZ,                                                                     OPINION
             Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Robert Navarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A.
Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *   Before Franson, Acting P.J., Smith, J. and Snauffer, J.
       In 2000, Daniel Sapien Lopez was sentenced to serve 201 years and eight months
to life in prison for committing several crimes including six separate third strike offenses.
The sentence included 30 years for three separate firearm enhancements (Pen. Code,1
§ 12022.53, subd. (b)) and one year for a prison prior enhancement (§ 667.5, subd. (b)).
After a series of appeals, his sentence was reduced to 199 years and eight months to life
in prison by virtue of an unpublished opinion filed in this court in 2004. (People v. Lopez
(Cal. Ct. App., Jan. 14, 2004, No. F036242) 

2004 WL 61128

(Lopez).)
       After several attempts, Lopez successfully petitioned the Superior Court in 2018
for resentencing pursuant to section 1170.18.2 He simultaneously sought relief from the
firearm enhancements pursuant to then newly enacted Senate Bill No. 620 (Reg. Sess.
2017-2018, § 1), which gave trial courts the discretion to strike these enhancements.
       The Superior Court granted Lopez relief under section 1170.18. At the
resentencing hearing, Lopez’s counsel chose not to present any argument relating to the
firearm enhancements. Instead, defense counsel informed the court, “My position is
Mr. Lopez would like to speak on his own behalf.” Lopez could not persuade the court.
He was subsequently resentenced to serve 197 years to life in prison. This appeal
followed, in which he argues defense counsel was ineffective at the resentencing hearing
by failing to research and present a colorable argument to strike the firearm
enhancements.
       Following the initial briefing in this case, Lopez filed a supplemental brief arguing
for relief pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess., § 1, SB 136). If
applicable, SB 136 would eliminate the one-year prior prison enhancement in this case.




       1   All code references are to the Penal Code.
       2 Section 1170.18 allows individuals to reduce certain nonviolent drug and theft-
related felony convictions to misdemeanors.


                                              2.
       The People argue Lopez’s counsel was not ineffective with regards to the firearm
enhancement issue but concede SB 136 applies in this case. We agree with the People.
                                    BACKGROUND
       For purposes of this appeal, the relevant factual background is those crimes
involving firearms or similar weapons. Because Lopez relies almost entirely on the facts
as described in this court’s 2004 opinion, we reproduce the relevant portions below.
       “On July 1, 1999, shortly after 3 p.m., Wa Vue Yang was sitting in the driver’s
seat of his parked vehicle waiting for his wife to come out of the market. [Lopez]
approached the driver’s side of the vehicle and asked Yang if he wanted to buy a watch.
Yang declined because he already owned a watch. [Lopez] pulled out a gun and fired a
shot into the ground. [Lopez] pointed the gun at Yang’s face and told him to get out of
the vehicle. Yang got out of the vehicle, leaving the keys in the ignition. [Lopez] got in
the vehicle and threw his backpack onto the passenger seat. Yang realized he had left
some checks in the van. Yang wanted the checks so he turned around, returned to the
vehicle, and confronted [Lopez]. He was not as afraid of the gun as he had been initially
because, after thinking about it, he thought the gun was an air gun. [Lopez] pointed a gun
at Yang and pulled the trigger twice; the gun did not fire. [Lopez] fled, leaving his
backpack in the vehicle. Inside the backpack was a video rental card belonging to
[Lopez] and his mother. (Count five, carjacking, plus personal use of a weapon
enhancement.)
       “At approximately 3:30 p.m. on July 1, 1999, Lao Cha was getting into her car
after shopping at a store that was approximately one quarter of a mile from Yang's
vehicle. [Lopez] ran a bicycle into her leg. When Cha turned, [Lopez] pointed a gun to
her head. He told her to run for her life. Cha ran, and [Lopez] drove off in her red Toyota
Tercel. (Count six-carjacking, plus personal use of a weapon; count nine-unlawful taking
of a vehicle.)” 

(Lopez, supra

, 

2004 WL 61128

at *1.)



                                             3.
       “On July 8, 1999, security guard Rick Lopez was dispatched by his dispatcher to a
nearby business, Fresno Firearms. When [Rick] arrived, he saw a red car on the
sidewalk. The front end of the car had been driven into the building. [Rick] saw [Lopez]
leaving the building with items in his hand. He was about 50 feet from [Lopez]; [Rick]
yelled at [Lopez]. [Lopez] pulled out a semiautomatic handgun and pointed it directly at
[Rick]; [Rick’s] attention was focused on the gun. [Lopez] fled. The business owner
came to the scene, where he discovered several knives were missing. Blood drops in the
business were tested and matched [Lopez’s] DNA at a ratio of 1 in 52,000. (Count
eleven-second degree robbery, and personal use of a firearm.)” 

(Lopez, supra

, 

2004 WL 61128

at *2, fn. omitted.)
       On July 9, 1999, a police officer’s home was burglarized. “[O]ne of the items
stolen was a firearm.” 

(Lopez, supra

, 

2004 WL 61128

at *8.)
       “On July 12, 1999, at approximately 7 a.m., Martha Garcia and Israel Cruz were
asleep in their apartment. They heard a noise. Garcia got up to check on the noise. She
encountered [Lopez] standing in her living room dressed in the uniform of a Madera
police officer. [Lopez] pointed a gun at her and ordered her to sit down. At this time
Cruz entered the room. [Lopez] ordered Cruz to his knees and handcuffed him. He
asked Cruz for money. Cruz took [Lopez] into the kitchen to retrieve some money.
[Lopez] took Cruz into the garage and Garcia fled to the home of a neighbor.
       “Garcia told her neighbor, Jose Lopez, about the man in their apartment. [Jose]
went to investigate. [Jose] saw [Lopez] standing in the apartment dressed in a police
uniform and holding a gun, and saw that Cruz was handcuffed. [Lopez] asked [Jose] if
he wanted to go to jail and told him to leave. [Jose] left, returned to his apartment, and
instructed his wife to call the police. (Counts one and two-robbery, plus a personal use of
a weapon enhancement for both counts, and an impersonating a police officer
enhancement for both counts.) [Lopez] fled.” 

(Lopez, supra

, 

2004 WL 61128

at *2.)



                                             4.
       Lopez was apprehended nearby. In his vicinity, an officer “found a gym bag
containing a gun belt, a gun, a police uniform and badge.” 

(Lopez, supra

, 

2004 WL 61128

at *2.) These were apparently the items stolen from the burglary on July 9 at the
police officer’s home.
       “The victims of the carjackings that occurred on July 1, 1999, were uncertain
whether the gun possessed by [Lopez] was a real gun. During the proceedings before the
trial court, the parties discussed whether there was sufficient evidence to prove that
[Lopez] possessed a firearm, as opposed to a pellet gun, for some of the carjacking
charges. The defense requested the court to state its view of the evidence of the firearm
use regarding the two carjacking counts, because, if the court believed the firearm use
was proved, [Lopez] wanted to present evidence to dispute this finding. The parties
discussed the issue. The court stated that the police officer’s firearm was stolen on
July 7, so it is clear that the weapon used in the carjackings on July 1 was not the stolen
firearm. The People acknowledged the weakness in their evidence. Defense counsel
indicated that [Lopez] was prepared to testify that he was the person who accosted the
carjacking victims and at that time he was armed with a pellet gun. The court inquired
into what the pellet gun looked like. [Lopez] offered to the court, ‘It’s like a revolver.’
The prosecution agreed that this type of gun looks like a revolver, is a carbon dioxide
driven weapon, and is not a firearm within the meaning of the law. The prosecution then
agreed to reduce the firearm enhancement on counts five and six (the carjackings) to
personal use of a deadly or dangerous weapon. (§ 12022, subd. (b).)” 

(Lopez, supra

,

2004 WL 61128

at *8.)
       This court also considered whether the evidence was sufficient to prove the
firearm enhancement in the security guard robbery. We acknowledged “the [trial] court
erroneously [believed] that the police officer’s gun was stolen on July 7.” As noted, it
was actually stolen two days later on July 9. Nonetheless, we found sufficient evidence



                                              5.
to prove the enhancement beyond a reasonable doubt. 

(Lopez, supra

, 

2004 WL 61128

at
*8-9.)
                                       DISCUSSION
         The two issues on appeal are whether Lopez’s counsel rendered ineffective
assistance in connection with the resentencing hearing and whether SB 136 applies
retroactively. We address each in turn.
I. Defense Counsel Was Not Ineffective
         The thrust of Lopez’s argument on appeal is that, had his counsel properly
researched the facts, he could have presented a valid claim the firearm enhancements
were unjustified. The arguments underlying his claim include that no firearm was
discharged, no victim was physically injured, and the evidence he used a real firearm in
relation to the security guard robbery was “far from overwhelming ....” These
contentions are meritless.
         The Sixth Amendment guarantees the “ ‘right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 

466 U.S. 668

, 685-686.) “ ‘[T]o establish a
claim of ineffective assistance of counsel, [Garcia] bears the burden of demonstrating,
first, that counsel’s performance was deficient because it “fell below an objective
standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.]
Unless a defendant establishes the contrary, we shall presume that “counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If
the record “sheds no light on why counsel acted or failed to act in the manner
challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” ’ ” (People v. Bell (2019) 

7 Cal. 5th 70

, 125 (Bell).) “[D]eference to counsel’s performance is not the same as abdication”
and “ ‘must never be used to insulate counsel’s performance from meaningful scrutiny

                                             6.
and thereby automatically validate challenged acts or omissions.’ ” (People v. Centeno
(2014) 

60 Cal. 4th 659

, 675.)
       “ ‘If a defendant meets the burden of establishing that counsel’s performance was
deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that
is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” ’ ” 

(Bell, supra

, 7 Cal.5th at p. 125.) “ ‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” (In re Gay (2020) 

8 Cal. 5th 1059

, 1086.)
       Lopez cannot satisfy either prong. His argument for deficient performance hinges
upon whether defense counsel properly researched the facts. As he concedes in his
briefing, “[i]t is unknown on this record whether defense counsel ever read” this court’s
2004 opinion. He then reiterates the concession with the caveat it is possible defense
counsel researched the facts but “inexplicably failed” to present any argument at the
resentencing hearing in 2018. The record sheds no light on whether defense counsel
researched the facts or, alternatively, why he chose not to present an argument after
researching the facts.
       On this record, we are unable to find defense counsel’s performance fell below an
objective standard of reasonableness. The underlying arguments now advanced on
appeal are flawed and unpersuasive.
       Inherent in the convictions themselves are the facts that no firearms were
discharged and no physical violence occurred. The alleged enhancements were for using
firearms as opposed to discharging firearms.3 (§ 12022.53 (b).) And none of the crimes
or enhancements required proof of injury to a victim. We cannot fault defense counsel
for not presenting these arguments to the court.


       3Section 12022.53 separately proscribes using firearms, discharging firearms, and
discharging firearms causing great bodily injury.


                                              7.
       Equally flawed is the argument that the evidence to prove the firearm
enhancement in the security guard robbery was “far from overwhelming ….” Lopez
points out the original trial court mistakenly believed the police officer’s firearm was
stolen before this robbery. Because he used a “pellet gun” in the earlier crimes, he then
concludes “it could reasonably be argued that [he] continued to use the pellet gun” until
he “obtain[ed] an actual firearm” after the security guard robbery. Although correct
regarding the original court’s error, the argument assumes Lopez could not access any
other firearms. The argument is pure conjecture. We cannot blame defense counsel for
failing to present baseless and speculative arguments.4
       Accordingly, there is a satisfactory explanation for counsel’s choice: After
researching the facts, allowing Lopez to personally plead for mercy might have been the
best strategy. But we simply cannot know because “certain practical constraints make it
more difficult to address ineffective assistance claims on direct appeal rather than in the
context of a habeas corpus proceeding.” (People v. Mickel (2016) 

2 Cal. 5th 181

, 198.)
Specifically, our “ ‘ability to determine from the record whether an attorney has provided
constitutionally deficient legal representation is in the usual case severely hampered by
the absence of an explanation of an attorney’s strategy.’ ” (People v. Johnson (2016)

62 Cal. 4th 600

, 653.) “The merits of such claims are more appropriately resolved, not on
the basis of the appellate record, but rather by way of a petition for writ of habeas
corpus.” (Ibid.) This case is not the exception.
       Finally, even if defense counsel was deficient by not presenting these arguments,
Lopez cannot satisfy his burden to prove prejudice. He claims “there is a sufficient


       4 Lopez also argues the July 12, 1999 robberies in which he wore a police officer’s
uniform were not “random crimes against innocent citizens ….” He explains the robbery
was motivated by his intent to exact money owed to him due to a previous drug
transaction. Lopez makes no attempt to explain how these facts are mitigating or why the
court would strike the enhancements on this basis.


                                             8.
probability that had [defense] counsel made almost any effort to marshal relevant facts or
present competent argument to the court below, at least one of the gun enhancements
might have been stricken in the interests of justice.” The claim is conclusory and
speculative. To find a reasonable probability of a more favorable sentence, we would
need to conclude not only was the court oblivious to the actual facts, but also that the
court declined to strike the enhancements because the firearms were discharged or the
victims were injured. The record does not support these conclusions.
       Nor are we persuaded that arguing an enhancement proven beyond a reasonable
doubt and affirmed on appeal should be stricken because the evidence is nonetheless “far
from overwhelming” would result in a more favorable sentence. Lopez does not attempt
to explain why the court would positively receive this argument. On this record, we
cannot find the sentencing court would have stricken an enhancement by interjecting its
personal view of the evidence. The ineffective assistance claim fails.
II. SB 136 Applies Retroactively
       The remaining issue is whether SB 136 applies retroactively. Lopez argues it is
retroactive and his one-year sentence enhancement is no longer valid. The People
concede the issue.
       SB 136 amended “section 667.5, subdivision (b), to eliminate the one-year prior
prison term enhancement for most prior convictions. [Citation.] An exception, not
applicable here, is made for a qualifying prior conviction on a sexually violent
offense …. [¶] Because SB 136 became effective before [Lopez’s] judgment became
final, we agree with the parties that the amended law applies to him retroactively.”
(People v. Reneaux (2020) 

50 Cal. App. 5th 852

, 876.) He is thus entitled to relief.
                                      DISPOSITION
       The judgment is affirmed. The section 667.5 subdivision (b) enhancement is
stricken. The trial court is directed to appropriately amend the abstract of judgment and
forward it to the Department of Corrections and Rehabilitation.

                                             9.