Modification: People v. Lopez

THE PEOPLE,

Plaintiff and Respondent,

v.

JAIME JEZZUEL LOPEZ,

Defendant and Appellant.

No. G060261

(Super. Ct. No. 08NF3673)

California Court of Appeal

Fourth Appellate District

Division Three

Filed May 18, 2022

ORDER MODIFYING OPINION

AND DENYING PETITION FOR

REHEARING; NO CHANGE IN

JUDGMENT

It is ORDERED that the opinion filed on April 28, 2022, be modified as follows:

On page 22, after the second full paragraph ending with "The jury might have rejected the prosecution's theory and arguments that defendant acted alone." Insert the following two paragraphs:

The Attorney General points out the trial court did not instruct the jury with CALCRIM No. 703, which sets forth the requirements for finding a defendant who is not the actual killer to be guilty of special circumstance murder. The Attorney General also points out the bench notes to CALCRIM No. 703 state the trial court has a sua sponte duty to give this instruction if there is substantial evidence that the defendant was not the actual killer; conversely, the bench notes advise not to give the instruction if accomplice liability is not an issue in the case. (Judicial Council of Cal. Crim. Jury Instns. (2021) Bench Notes to CALCRIM No. 703.) The Attorney General argues the trial court did not instruct with CALCRIM No. 703 "presumably because accomplice liability was not an issue in the case and there was no substantial evidence to support the instructions."

The trial court's decision not to give CALCRIM No. 703 is not dispositive in determining whether defendant made a prima facie case for relief under section 1170.95. The issue is whether the record of conviction conclusively establishes as a matter of law that defendant was the actual killer; that is, defendant personally killed the victim. The jury would not have been aware of CALCRIM instructions other than those given and would not have known of any bench notes. The evidence presented at trial, in particular defendant's own testimony, and the instructions actually given did not establish defendant was the actual killer as a matter of law but created the possibility the jury found defendant guilty of murder without finding him to be the actual killer."

The petition for rehearing is DENIED.

The modification does not change the judgment.

SANCHEZ, J.

WE CONCUR:

O'LEARY, P. J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.