California Legal Brief

The Rule of People v. Lopez is that defendants who petition for resentencing under Penal Code section 1172.6 are not categorically ineligible for relief merely because they could have challenged allegedly ambiguous jury instructions on direct appeal from their original conviction, under circumstances where the petitioner alleges they were convicted under a now-invalid theory of imputed malice due to instructional ambiguity.

Appeal from order denying resentencing petition in Superior Court, Stanislaus County.

Defendant Appellant was Robert Lopez — the 16-year-old gang member who participated in a confrontation with rival gang members that resulted in a fatal shooting.

Plaintiff Respondent was The People — the prosecution seeking to uphold Lopez's murder conviction following jury instructions that may have permitted conviction on an imputed malice theory.

The suit sounded in criminal law involving resentencing relief under Penal Code section 1172.6 (formerly section 1170.95). No cross-claims were applicable.

The key substantive facts leading to the suit were Lopez's 2007 conviction for murder, assault with a deadly weapon, and gang participation following an incident where he and others confronted rival gang members outside a taco truck in Modesto, resulting in the fatal shooting of Daniel Morales. The jury was instructed on both perpetrator and accomplice liability theories using standard CALCRIM instructions that may have permitted conviction on imputed malice theory. Lopez filed a section 1172.6 petition alleging he could not presently be convicted of murder because of changes to sections 188 and 189 made effective January 1, 2019.

The procedural result leading to the Appeal: The trial court denied the resentencing petition, ruling that Lopez could be prosecuted under either theory as actual killer or direct aider and abettor. The Court of Appeal affirmed on different grounds, holding that Lopez was categorically ineligible for relief because he had not raised the instructional ambiguity claim on direct appeal from his original conviction, constituting a forfeiture of the claim.

The key question(s) on Appeal: Does Penal Code section 1172.6, subdivision (a)(3), which requires defendants to allege they "could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019," render ineligible for relief petitioners who could have raised their challenges to imputed malice on prior direct appeal?

The Appellate Court held that section 1172.6 does not incorporate a Dixon-like procedural bar that would categorically exclude petitioners from resentencing relief based on their failure to challenge allegedly ambiguous jury instructions in prior direct appeals, where the petitioner alleges conviction under a now-invalid theory of imputed malice.

The case is inapplicable when the record of conviction conclusively establishes that the defendant could presently be convicted of murder under valid current law theories, or when the petitioner's claims are clearly meritless rather than based on instructional ambiguity that may have permitted imputed malice conviction.

The case leaves open whether satisfaction of the Boyde standard (reasonable likelihood that jury applied challenged instruction in constitutionally improper way) is necessary to establish prima facie eligibility under section 1172.6, as this question was outside the scope of review granted.