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People v. Lopez

California Court of Appeals, Fifth District

November 20, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Jose Carlos LOPEZ, Defendant and Appellant.

         [Certified for Partial Publication.[*]]

         [254 Cal.Rptr.3d 884] APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Super. Ct. No. BF162814A)

Page 338

         COUNSEL

         Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

         Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

         SNAUFFER, J.

Page 339

          In 2017, a jury convicted Jose Carlos Lopez of possession of a controlled substance (heroin) for sale (Health & Saf. Code, � 11351). The trial court sentenced Lopez to the upper term of eight years, enhanced by four years based on four prior prison terms (Pen. Code, � 667.5, subd. (b)).[1] Lopez’s sentence was further enhanced by three years by Health and Safety Code section 11370.2. In a companion case, the court imposed a one-third consecutive term of 32 months for Lopez’s 2015 conviction for transporting narcotics (heroin) for sale (Health & Saf. Code, � 11352, subd. (a)). Lopez received an aggregate prison term of 17 years eight months.

         Lopez contends the trial court abused its discretion in permitting the jury to hear about his 2015 conviction for transporting heroin for sale. He also claims the court abused its discretion when it rejected a chain of custody argument and permitted the jury to hear about the heroin seized in this matter and tested by a crime laboratory. We reject these claims. However, we agree with the parties that Lopez’s three-year enhancement pursuant to Health and Safety Code section 11370.2 must be [254 Cal.Rptr.3d 885] stricken because it is inapplicable in this case. We also agree with the parties that Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136), which the Governor recently signed, retroactively applies to Lopez. Senate Bill 136 amends the circumstances under which a one-year sentence enhancement may be imposed under section 667.5, subdivision (b). Under the new law, none of Lopez’s four prior prison terms qualify for this enhancement. We strike the enhancements under section 667.5, subdivision (b), and Health and Safety Code section 11370.2, but otherwise affirm the judgment.

          BACKGROUND

          We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.

Page 340

          On January 6, 2016, a senior deputy with the Kern County Sheriff’s Department, Michael Dorkin, arrested Lopez, who was wanted on an outstanding warrant. When he searched Lopez, Dorkin found a bag containing 24 bindles of suspected heroin. The total heroin, including the bag and bindles, weighed 35.9 grams. Dorkin also found three $20 bills, three $10 bills, and 11 $1 bills on Lopez (a total of $101). At the time of his arrest, Lopez appeared to be under the influence of heroin. Later testing confirmed that at least five of the bindles recovered ...


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