Based in part on an Attorney General concession that conflicts with a district attorney’s amicus brief, the Supreme Court last week in People v. Lopez held that a failure to raise an argument on direct appeal from a murder conviction doesn’t preclude a defendant from making the argument in support of a resentencing petition after the statutory law has changed.
The court’s unanimous opinion by Justice Evans concluded that the defendant’s prior lack of an argument doesn’t make him “categorically ineligible” for resentencing under Penal Code section 1172.6, part of SB 1437, 2018 legislation that limited criminal liability for felony murder, eliminated it for murder under the natural-and-probable-consequences doctrine, and allowed for resentencing of certain defendants convicted under pre-SB 1437 law. Allowing such a forfeiture, the court said, would be “interpret[ing] section 1172.6, subdivision (a)(3) in a manner that conflicts with the statute’s text and fundamental purpose,” which “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 remanded the case to the Court of Appeal “to address in the first instance the merits of [the defendant’s] claim that the jury instructions allowed him to be convicted on a now-invalid theory.”
The court reversed the unpublished Fifth District Court of Appeal opinion. It also disapproved a bunch of other decisions: the Fourth District, Division One, opinions in People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, People v. Flores (2023) 96 Cal.App.5th 1164, and People v. Burns (2023) 95 Cal.App.5th 862, and, to the extent they’re inconsistent, People v. Krueger (2025) 115 Cal.App.5th 431 (First District, Division Two), People v. Warner (2025) 115 Cal.App.5th 416 (First District, Division Two), and People v. Superior Court (White) (2025) 107 Cal.App.5th 1268 (Second District, Division Six).
Review was denied in Berry-Vierwinden, Flores, Burns, and also in Krueger and Warner. White is a grant-and-hold for the Supreme Court’s Lopez opinion.
