Trial courts don’t inherently have the jurisdiction to consider recent changes in law when resentencing defendants, the Court of Appeal ruled July 25.
In the appeal of a 2017 murder case, the Court of Appeal found that defendant Oscar Lopez was entitled to enhancements reforms passed during his appeal, but that the San Bernardino Superior Judge Bridgid McCann did not have the authority to consider them when directed to resentence him in 2022.
The shooting and the conviction
According to the appellate ruling, Lopez, with an accomplice, pulled up next to two men in another car. He asked, “Where you guys from?” then shot them. One of the victims was killed and the other was wounded.
Although Lopez was entitled to relief, the judge was not entitled to consider it.
Court of Appeal ruling
In 2017, Lopez was found guilty of first degree murder with an enhancement for the discharge of a firearm in a gang-related crime causing great bodily injury, attempted murder with a firearm enhancement, shooting at an occupied car with a firearm enhancement and unlawful possession of a firearm.
He also received gang enhancements on each count and three prior-term enhancements.
The court sentenced Lopez to 141 years to life in prison.
First appeal
Lopez appealed.
In 2020, the Court of Appeal stayed the sentence for shooting at a car, and struck the prior-prison term enhancements.
The Court of Appeal then directed the trial court to consider whether to strike the prior serious felony conviction enhancement or the firearm enhancements.
McCann struck the prior serious felony enhancement but refused to strike the firearm enhancements in October 2022.
Lopez was resentenced to 101 years to life.
Second appeal
Lopez appealed again after being resentenced.
He argued that McCann should have considered striking his gang enhancements due to recent changes in the law under Assembly Bill 333.
The bill, effective Jan. 1, 2022, made it more difficult to receive gang enhancements. It used to be that a criminal gang was defined by its members’ individual criminal actions. Under AB 333, a gang is only criminal if its members collectively engage in criminal gang activity.
In this appellate ruling, the Court of Appeal affirmed McCann’s decision not to review Lopez’ gang actions.
Although Lopez was entitled to relief, McCann was not entitled to consider it, the Court of Appeal ruled.
The Court of Appeal directed McCann to consider only the serious felony conviction enhancements.
Dissent
The Court of Appeal should have directed the trial court to apply the new law instead of affirming McCann’s judgment, argued a dissenting opinion written by Fourth District Court of Appeal, Division Two, Justice Michael Raphael.
“New laws that are retroactive on direct appeal apply here. Based on this simple principle— articulated in binding Supreme Court precedent—I respectfully dissent,” Raphael wrote.
Case information
Presiding Justice Manuel Ramirez wrote the opinion, which Douglas Miller joined.
San Bernardino Superior Court Case No. FWV1404692
Appellate Case No. E080032
Read the ruling here.
