Friday, May 1, 2026
Page 3
California Supreme Court:
Failure to Raise Issue on Appeal Does Not Bar Resentencing
Opinion Says Suspect Who Asserts That He May Have Been Convicted of Murder Based on Now-Defunct Theory of Imputed Malice May Seek Relief Even if He Could Have Raised Instructional Error in Earlier, Direct Challenge
By a MetNews Staff Writer
The California Supreme Court yesterday held that defendants who seek resentencing based on claims that they could not presently be convicted of murder due to changes in the law regarding imputed malice are not categorically barred from relief based on the fact that the errors they assert in their petition could have been raised on direct appeal.
Seeking resentencing relief was Robert Lopez, who was convicted in 2007 of murder relating to an incident in which he and two others confronted alleged gang rivals outside a taco truck in Modesto. During the encounter, a gun was fired, and a member of the other group, Daniel Morales, was fatally wounded.
Prosecutors asserted that one of Lopez’s companions was the actual shooter at the preliminary hearing but altered course during closing arguments at trial to say that Lopez fired the fatal shots.
After the Legislature adopted amendments to the Penal Code in 2018 that significantly altered the scope of murder liability by requiring that “a principal in a crime shall act with malice aforethought” and that the mental state “shall not be imputed to a person based solely on his or her participation in a crime,” Lopez filed for resentencing relief as provided for under the new legislative scheme at §1172.6.
That section provides that a defendant may seek resentencing if the charging documents “allowed the prosecution to proceed under a theory…under which malice is imputed to a person based solely on that person’s participation in a crime” and the party “could not presently be convicted of murder because of changes to [Penal Code §§ 188 or 189]” adopted in 2018.
He argued that the instructions provided to the jury at his trial left open the possibility that he was convicted of murder as an aider and abettor under a no longer valid theory of imputed malice. Then-Stanislaus Superior Court Judge Nancy Leo (now deceased) denied the petition in November 2022, finding that he was guilty of murder as the actual killer or one who intentionally assisted the other person in the killing.
Forfeiture of Claim
The Fifth District Court of Appeal affirmed the denial on alternate grounds in 2024, saying that he forfeited the claim because “he could have advanced the same [argument] in his direct appeal,” based on the 2001 California Supreme Court decision in People v. McCoy, which established that a perpetrator’s mental state may not be imputed to an aider and abettor as each defendant’s state of mind must be independently evaluated.
Yesterday’s decision, written by Justice Kelli Evans, declares:
“We granted review limited to the following question: ‘Does Penal Code section 1172.6…, which requires defendants to allege that they “could not presently be convicted of murder or attempted murder because of changes…” [to the Penal Code concerning imputed liability for murder] render ineligible for relief petitioners who could have raised their challenges to imputed malice on prior direct appeal?’ We conclude that Lopez is not categorically ineligible for relief and therefore reverse and remand to the Court of Appeal to address Lopez’s appeal on the merits.”
Recognizing that the Fifth District based its decision, at least in part, on “a trio of [2023] Court of Appeal cases,” she announced that “[w]e…disapprove” of the Fourth District Court of Appeal decisions in People v. Burns and People v. Berry-Vierwinden, both issued by Div. One, as well as the opinion by Div. Three in People v. Flores.
Justice Charles Edward Wilson, sitting by assignment, joined in the opinion.
Categorical Bar
Evans noted:
“The Attorney General concedes that the Court of Appeal ‘erred in imposing a categorical bar to relief and should instead have considered Lopez’s record of conviction holistically before denying relief.’…The Sacramento County District Attorney, appearing as amicus curiae, urges us to uphold the decision of the court below and approve the prior appellate decisions upon which it is based.”
Saying that “[t]hese cases interpret section 1172.6…in a manner that conflicts with the statute’s text and fundamental purpose,” she remarked:
“Rejecting eligibility at the prima facie stage based on the failure to challenge ambiguous instructions in prior appeals predating [the amendments] for those otherwise eligible is not a convincing interpretation of section 1172.6….In articulating the requirements for the prima facie case, section 1172.6…makes no reference to any procedural bar based on the arguments raised (or not raised) on direct appeal, or indeed any reference to the prior appeal at all….If the Legislature had intended to erect a procedural bar based on failure to raise claims in a prior appeal, it likely would have done so more directly.”
Express Intent
Adding that “[m]ore importantly, the construction of the statute adopted by the court below contradicts the express intent” of the Legislature, she continued:
“[T]he primary and overarching purpose of [the] scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories….The court below did not reject Lopez’s argument that, based upon the jury instructions, he may have been convicted based upon diminished culpability, yet denies him eligibility for relief by asserting that the claim is simply ‘not cognizable’ due to his failure to raise the issue in his prior direct appeal. Such denial conflicts with the express goals of [the Legislature].”
Commenting that, “even assuming that McCoy or other decisions existing at the time of Lopez’s appeal could have supplied a partial basis for the theory of imputed malice asserted by Lopez, this would not categorically bar relief,” she wrote:
“[T]he Legislature did not…intend a causal connection that is satisfied only when the changes [adopted in 2018] represent a ‘but for’ reason why a petitioner is eligible for resentencing….[E]ven though the ‘building block’ of our decision in McCoy may have laid the groundwork for some component of Lopez’s section 1172.6 petition, it is, at most, a partial cause for his claim for relief. Ultimately, Lopez’s claim…rests on the Legislature’s change to section 188, namely that ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ ”
The case is People v. Lopez, 2026 S.O.S. 1152.
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