People V Lopez Ca41
Filed 7/22/25 P. v. Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082880
Plaintiff and Respondent,
v. (Super. Ct. No. SCN304686-1)
JESSICA LYNN LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Robert Kearney, Judge. Affirmed.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel and Anne Spitzberg, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Jessica Lynn Lopez, who was convicted in 2015 of first degree special
circumstance felony murder, appeals a trial court ruling finding her ineligible
for resentencing under former section 1170.95 of the Penal Code,1 now
section 1172.6. The trial court based its denial on the determinations the
evidence proved beyond a reasonable doubt both that Lopez was a major
participant in the kidnapping and torture of the decedent who acted with
reckless indifference to human life and that she directly aided and abetted
the murder with malice aforethought. Lopez argues the evidence presented
at the evidentiary hearing was insufficient to support finding her guilty of
murder under current law. We conclude otherwise and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Trial Evidence
Following the death of Brittany Killgore, in 2015 a jury convicted
Lopez, as well as her codefendants Louis Perez and Dorothy Maraglino, of
first degree murder (§ 187, subd. (a); count 1); kidnapping (§ 207, subd. (a);
count 3); torture (§ 206; count 4); and attempted sexual battery by restraint
(§§ 243.4, subd. (a) & 664; count 5). As to all three defendants, the jury found
true the special circumstance that the murder was committed during a
kidnapping (§ 190.2, subd. (a)(17)(B)). The jury also convicted Perez and
Maraglino of conspiracy to commit kidnapping (§§ 182, subd. (a)(1) & 207;
count 2), but it acquitted Lopez of this charge.
Lopez (as well as Perez and Maraglino) appealed, challenging the
sufficiency of the evidence supporting each of her convictions, among other
1 Further unspecified statutory references are to the Penal Code.
2
claims raised. On December 29, 2017, we issued our opinion rejecting her
challenges and affirming the judgment. (People v. Maraglino (Dec. 29, 2017,
D069297, D069609) [nonpub. opn.].) The following summary of the trial
evidence underlying Lopez’s convictions is taken from that opinion.
“On April 13, 2012, Perez picked up Killgore from her apartment under
the pretext of taking her on a dinner cruise. Ten minutes later, Killgore sent
her friend a text message saying, ‘Help.’ Four days later, detectives
recovered her nude body near Lake Skinner in Riverside County. Evidence
presented at trial suggested Killgore died while defendants were acting out a
BDSM kidnapping fantasy.
“Perez, Maraglino, and Lopez were active participants in the BDSM
lifestyle, respectively occupying roles in their household of ‘master,’ ‘mistress,’
and ‘slave.’ Perez and Maraglino were in a dominant-submissive relationship
wherein Perez was the dominant and Maraglino was his submissive. Perez
lived in a separate residence but often visited Maraglino at her home in
Fallbrook, California. Lopez was Maraglino’s slave and lived in Maraglino’s
home.
“As a masochist, Lopez enjoyed receiving pain; Maraglino would inflict
pain on her through BDSM ‘play.’ Although a slave in the Maraglino
household, Lopez had been a dominant in the past and in an ongoing online
relationship with someone named Bella. Maraglino was a ‘switch,’ meaning
she was submissive with Perez and dominant with Lopez. Maraglino
established written procedures, including a ‘House Manual,’ ‘Perfect Slave
Checklist,’ and slave contract. She controlled everything Lopez did inside
and outside the home; Lopez wore a dog collar stating she was Maraglino’s
property. As Maraglino’s master, Perez had control over Maraglino’s
household, including control over Lopez.
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“Perez was a sadist and enjoyed inflicting pain on others. . . . Although
there was testimony Perez was considered a ‘safe’ player in the BDSM
community who acted only with consent, detectives found a video of Perez
beating a woman with various implements as she begged him to stop and
continuing to beat her past the point of consciousness.
“All three defendants had BDSM abduction, torture, and murder
fantasies. Lopez’s diary contained a ciphered writing in which she abducted,
tortured, and killed someone she disliked, disposing of the body and dousing
evidence with bleach. Maraglino authored a writing about abducting three
generations of women, each one ‘prescribed a method of death’ and subjected
to sexual torture, torture, and forced suicide. Maraglino authored a separate
writing, found in Perez’s garage, in which she slit the throat of a woman
while that woman was having sex with Perez. Maraglino made a
handwritten list of ‘hunting ground[s]’ for vulnerable victims that included
ways to dispose of a body and avoid detection. Perez and Maraglino
discussed their abduction fantasies with Dora B., another of Maraglino’s
slaves, on two or three occasions. At one point, Maraglino asked Dora how
she would react if a kidnapped woman were brought to the home. Dora
worried these fantasies ‘didn’t always take consent into account,’ but she
‘wanted to believe that it was nothing more than a fantasy.’
“Perez and Maraglino acted out an abduction fantasy on Nicole A.
Without prior agreement, Perez and Maraglino picked up Nicole in a parking
lot, blindfolded her, undressed her in the ‘dungeon’ in the basement of
Maraglino’s home, restrained her, and engaged in BDSM play. Thereafter,
Nicole voluntarily joined the household for a short period as Maraglino’s
slave.
4
“Perez and Maraglino had an open relationship, but Maraglino was
paranoid about losing him to another woman. Nicole’s relationship with
Maraglino soured because Nicole communicated with Perez directly, rather
than go through her. As their relationship deteriorated, Maraglino made
threatening statements toward Nicole’s daughter. When Perez began seeing
Marina V., Maraglino talked about killing Marina and wanting her to die a
torturous death; in an online forum, she threatened to kill Marina and
Marina’s daughter. Perez and Maraglino briefly broke up over Marina; they
soon rekindled their relationship and in 2011 conceived a child.
“Although there was some evidence the relationship between Perez and
Maraglino became more conventional after they reunited, there was also
evidence they remained involved in BDSM. Lopez remained Maraglino’s
slave. Maraglino kept her BDSM toys and, on the day of Killgore’s
disappearance on April 13, 2012, sent Deborah E. a text message about a
forced lactation-torture fantasy. . . . On the day before Killgore’s
disappearance, Perez texted Al.E. about upcoming plans to engage in BDSM
play with someone he did not like, which to Al.E. was a ‘very big red flag.’
Al.E. told Perez not to go through with it, but he said it would give him
‘control to temper my feelings and not hurt[ ] someone I want to hurt badly.’
“Killgore’s close friend, Elizabeth Hernandez, became friends with
Maraglino in 2011. Hernandez would often visit Maraglino’s home and bring
Killgore with her. Killgore and Hernandez were not involved in BDSM, but
both knew that defendants were. Although Maraglino was initially friendly
with Killgore, she became hostile toward her after she perceived Killgore
flirting with Perez. Maraglino called Killgore ‘the disease’ and ‘the herpes’
when she was not around; asked why Hernandez and Killgore were always
together; and seemingly in jest, offered to get rid of Killgore for
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Hernandez. [¶] . . . [¶] Lopez appeared to have a better relationship with
Killgore, but she, like Maraglino, called Killgore ‘the disease’ and ‘herpes’ and
joked, on April 13, 2012, that she would make Killgore walk the plank at her
pool party the next day.
“On the afternoon of April 13, 2012, Hernandez visited Maraglino’s
home to return a camera charger. She stayed to socialize with Maraglino and
Perez; Lopez was not home. Maraglino seemed excited to hear Killgore was
going to move to the east coast, saying Hernandez would finally be ‘free.’
Hernandez told Perez and Maraglino about her recent excursion on the
Hornblower dinner cruise in San Diego. She said Killgore seemed very
interested in going, and she wanted to take Killgore on a cruise before she
moved. Hernandez recalled nothing out of the ordinary about her
conversation. Perez and Maraglino did not mention having tickets or plans to
go on a dinner cruise that evening.
“Killgore and Hernandez lived in the same apartment complex on
Ammunition Road in Fallbrook, as did friends Channy Tal . . . and Jessica
Perry. At 4:38 p.m.[2] on April 13, 2012, Perez knocked on Killgore’s door.
Tal was in the apartment, helping Killgore pack for her upcoming move.
Killgore asked Perez how he knew where she lived; Perez replied that he had
‘asked around.’ Perez pressed Killgore to come with him on the Hornblower
dinner cruise that night, saying he had two tickets but nobody to go with.
Killgore declined. Perez gave Killgore his phone number, and security
footage showed him leaving the complex at 4:54. When leaving the
apartment, Perez texted Maraglino, ‘That guy wasn’t successful,’ to which
Maraglino replied, ‘Tomorrow is another day.’
2 “All times are p.m. unless otherwise noted.”
6
“A few minutes after Perez left, Killgore texted to ask if he knew
anyone who could help move her belongings. At 5:00, Perez texted Killgore,
‘Party with me tonight & you’ll have five guys there in the morning.’ Killgore
replied that she would welcome help moving but felt ‘weird about the
partying’ because she did not think Maraglino would like it.
“Killgore told Tal she was uncomfortable accompanying Perez because
he was in a relationship with Maraglino. Perez responded to Killgore’s text,
saying Maraglino was ‘ok with it’ and suggesting at 5:19 that Killgore text
her to confirm. Killgore replied at 5:26 that she did not know Maraglino’s
number and did not think Maraglino liked her. Perez reassured Killgore that
was not the case and gave her Maraglino’s number. At 5:39, Perez checked in
to see if Killgore had contacted Maraglino. Killgore replied two minutes later
that she had not but would. At 5:42, Maraglino searched the Internet on her
phone for ‘San Diego dinner cruise.’ A minute later, Perez texted Killgore to
say he was ‘dressing up to go to dinner on the hornblower.’
“Killgore called Maraglino and left a voicemail message at 5:55.
Maraglino called back ten minutes later, and Tal overheard their
conversation. Maraglino seemed friendly and was laughing; she told Killgore
to go with Perez on the cruise because she was pregnant and would get
seasick. After speaking with Maraglino, Killgore decided to go. She told Tal
she had no interest in Perez, but thought it would be her last chance to go on
the dinner cruise before she moved to Pennsylvania the following week.
“Killgore texted Perez around 6:10 agreeing to go, asking what time he
would pick her up and when his friends would help her move. At 6:12,
Maraglino searched the Internet on her cell phone for ‘Hornblower San
Diego.’ Perez sent Killgore texts at 6:15 and 6:19 asking her to be ready at
7:30 that night and stating his friends would help her move in the morning.
7
At trial, the parties stipulated that on April 13, 2012, the Hornblower cruise
left the dock in San Diego at 7:00, meaning it would not have been possible to
make it if they left Fallbrook at 7:30, and that Maraglino, Perez, and Killgore
did not have tickets for the cruise.
“. . . At 6:38, Killgore texted Hernandez that Perez had stopped by to
ask her out and it was ‘odd.’ Hernandez followed up, and Killgore texted her
at 7:30 that Perez was taking her ‘[t]o the [H]ornblower and a casino’ after
Maraglino had given permission. Hernandez testified that this plan confused
her because Perez and Killgore hardly interacted.
“At 7:31, Perez sent Killgore a text message saying, ‘I’m running late be
there in five minutes, can you meet me at the curb? I got stopped at the front
gate.’ . . . Killgore responded, ‘At the curb? It’s raining you know. Id [sic]
appreciate it if you drove into the complex.’ Perez responded, ‘It’s not. I don’t
want to miss our boat.’ Perez called Killgore and evidently agreed to drive up
to her complex. Surveillance footage showed Perez entering the complex at
7:36. At 7:37, Perez texted Killgore, ‘I’m here,’ and Killgore responded, ‘I’m
out now.’ At 7:39, Killgore texted Perry that she was going with Perez on a
dinner cruise and might stop by to visit Perry afterwards. Surveillance
footage showed someone getting into the passenger side of Perez’s car; the car
pulled out of the lot around 7:40. Perez testified that he then drove Killgore
to Maraglino’s home to pick up a flier, and a neighbor recalled Perez’s car
swerving up to Maraglino’s residence near dusk.
“At 7:50, ten minutes after leaving her apartment complex with Perez,
Killgore sent Tal a text message that read, ‘Help.’ Killgore’s cell phone was
closer to Maraglino’s house than to her apartment when she sent that text.
At 7:57, Perez texted Maraglino, ‘Kitten?’ At that point, Maraglino and
Lopez were shopping at a grocery store located just minutes away from
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Killgore’s apartment and about 5 to 15 minutes from Maraglino’s home
(depending on traffic). Around 7:58, Lopez left the store to retrieve her wallet
from Maraglino’s home while Maraglino waited at the checkout aisle.
“Around 8:00, Tal tried three times to contact Killgore. At 8:05, she
received a text from Killgore’s phone stating, ‘Yes I love this party.’ Tal was
suspicious because the message did not resemble Killgore’s texts. She
demanded Killgore call her so she could hear her voice. Tal received another
suspicious text message from Killgore’s phone at 8:07 that said, ‘In a few hot
guys.’ Tal insisted Killgore call her immediately, and Killgore’s phone made
two short calls to Tal at 8:09 and 8:10. Tal texted Killgore that she could not
hear her when she called, and Killgore’s phone sent Tal a message stating,
‘Its ok music is too loud.’ At trial, Perez admitted using Killgore’s phone to
call her friends while playing loud background music from his car.
“Meanwhile, Maraglino, who remained at the grocery checkout aisle,
left missed calls on Lopez’s phone at 8:07 and 8:09. At 8:10, Maraglino
stepped outside and returned a few seconds later with Lopez. At 8:11, Perez
texted Maraglino, ‘Come home,’ suggesting he was then at Maraglino’s home.
At 8:12, Lopez and Maraglino were seen on video leaving the grocery store.
“Killgore’s friends grew very concerned. At 8:14, Hernandez called
Killgore; cell location data placed Killgore’s phone near Maraglino’s house at
that time. At 8:21, Hernandez called Maraglino, who lied that she had not
spoken to Killgore that day. At 8:30, Tal texted Killgore, demanding she call
her. At 8:40, Perry called Perez, who told her he had left Killgore downtown
at a club. Perez told Perry he had last seen Killgore talking to some guys
outside the club. He kept repeating that Killgore’s face looked okay, which
struck Perry as odd. Cell location data indicated Perez and Lopez were both
in the vicinity of Maraglino’s home in Fallbrook up to this point.
9
“Maraglino, who previously worked for a cell phone company, told
Perez that cell phones were traceable. Perez then decided to dispose of
Killgore’s phone in downtown San Diego to corroborate the story he had told
Perry. At 9:20, cell location data showed Perez driving southbound from
Fallbrook toward San Diego. Perez had Killgore’s phone with him. While
driving south on the I-15, Perez texted Killgore ‘Where are you?’ and ‘You’re
friends are calling me worried.’ He texted Maraglino asking about her night,
and Maraglino replied that she was having a quiet night at home. Perez
later admitted to using Killgore’s phone to send text messages to her friends.
At 10:10, Tal tried again to call Killgore and texted, ‘Should I just call the
cops.’ Killgore’s phone responded from a downtown San Diego location, ‘Im
ok.’ Perez’s license plate was photographed downtown by a San Diego Police
Department license reader at 10:34. Perez’s phone and Killgore’s phone
remained downtown until 10:51, when Perry tried again to reach Killgore.
“At 11:02, Perez called Perry as he was driving north from San Diego
toward Fallbrook. Perez sounded frantic and told Perry he had been driving
around looking for Killgore. Perez returned to Maraglino’s home after
midnight. Thereafter, cell data showed Perez’s and Lopez’s cell phones
moving east toward Temecula. In the early hours of April 14 [(specifically,
between 3:41 a.m. and 4:32 a.m.)], both Perez’s and Lopez’s cell phones were
traced near Lake Skinner and later [were] traced returning toward
Maraglino’s home. At trial, Perez [testified it was Lopez who killed Killgore.
He] explained that he and Lopez wrapped Killgore’s corpse in a tarp and put
it in a trailer that they hitched to Perez’s car. Perez drove the trailer to Lake
Skinner, with Lopez tailing his car to cover the trailer’s missing license plate,
and the two dumped the body near Lake Skinner.
10
“On the morning of April 14, Hernandez confronted Maraglino, saying
she knew Maraglino had spoken to Killgore the previous day. Maraglino
stuttered and gave the phone to Perez. During the call, Perez changed his
story two or three times as to what had happened the previous night.
“Tal and Hernandez . . . called the sheriff’s department. Perez called
Hernandez around noon and offered to drive her around to look for Killgore;
Hernandez told him law enforcement had already arrived. Sheriff’s Deputy
James Breneman called Perez, who sounded panicked but offered to come
talk in person.
“Perez drove to Killgore’s apartment complex on the afternoon of April
14. . . . [He] told detectives Killgore was flirty, flighty, and that she had been
drinking; Killgore’s friends did not agree with these characterizations. Perez
claimed he had left Killgore downtown at a club the night before and that
Killgore had texted him, ‘I’m okay.’ Deputy Breneman was suspicious when
he did not find that text on Perez’s phone. He also found it strange that
Perez’s car was caked with fresh mud, given the heavy rains the night before.
Perez agreed to provide a voluntary statement at the sheriff’s department
and was transported there. He consented to a search of his vehicle and was
placed under arrest when deputies found an unlawful weapon inside. . . .
“Deputies searched Maraglino’s home on April 15 and 16. On April 16,
Lopez and Maraglino were gone, and some items seen the previous day were
missing, as if someone had cleaned up. The sheriff’s department authorized a
search for Maraglino’s truck, which bore the license plate, ‘Ivnsktn’ (‘Ivan’s
Kitten,’ indicating Maraglino was Perez’s ‘Kitten’). Deputies found the truck
on April 17 at a hotel parking lot near the San Diego airport. They forcibly
opened a room booked under Maraglino’s name and found Lopez, bleeding at
the neck and half naked after an apparent suicide attempt. In the room were
11
three copies of a seven-page handwritten confession letter by Lopez, with a
sign above stating, ‘Pigs read this.’
“In the letter, Lopez used derogatory language, describing Killgore as a
‘miserable cunt’ who had tried to come between Perez and Maraglino. Lopez
took complete responsibility for Killgore’s death, saying sheriffs had arrested
the ‘WRONG FUCKING PERSON’ in Perez. Lopez claimed she alone had
grabbed Killgore; slammed her body into the stairs; restrained her wrists,
ankles, and mouth; subdued her with a Taser; wrapped rope around her neck
to apply and release pressure; attempted to hack up the body with power
tools; doused the body with bleach; and dumped the body near Lake Skinner.
The letter described injuries that would likely be found on Killgore’s body—
ligature marks around her neck and wrists, a Taser mark near her neck, and
bruising and mutilation marks.[3] Lopez expressed her love to Maraglino as
her slave and pet; sheriffs found a dog collar in the room marking Lopez
(alias Rosalin) as ‘Property of Ms. Dee [Maraglino].’ There were three copies
of the confession letter in the hotel room, one addressed to ‘Master Ivan’
(Perez), another to ‘My parents,’ and a third to a local media station.
Surveillance video showed the hotel receptionist making copies of the letter
for Lopez the previous night. Maraglino was in the hotel when Lopez had her
letter copied and departed San Diego on the morning of April 17 to visit
family in Virginia. Deputies accompanied Lopez to the hospital, and she was
arrested thereafter.
3 “The letter also contained statements that did not correspond with
other evidence, including that the murder happened after 11:15 and that
Killgore, who did not drive, appeared suddenly at the residence to demand
sex with Perez.”
12
“Based on Lopez’s letter, deputies focused their search team on the
Lake Skinner area in Riverside County. Later that afternoon on April 17,
deputies found Killgore’s nude body about a mile from Lake Skinner. The
medical examiner determined the cause of death to be ligature strangulation,
with hemorrhaging in her eyes consistent with pressure being intermittently
applied and released over a long period. The cricoid cartilage of Killgore’s
neck had been fractured, indicating someone had applied more than 33
pounds of pressure on her neck. There were bruises on her legs, a bruise
outside her left wrist consistent with the use of handcuffs, two cuts forming a
‘T’ on her left wrist, and five small pinprick marks on the left side of her face,
consistent with the use of a stun baton. In addition, there was a deep
postmortem cut to Killgore’s left knee with marks consistent with the use of a
power saw. The lack of maggots was consistent with the wound having been
doused with bleach. There were postmortem abrasions on Killgore’s back,
consistent with the body being rolled down the embankment. There were no
internal or external injuries to Killgore’s genitalia.
“As lead sheriff’s detective Brian Patterson was driving to Lake
Skinner on April 17, Maraglino called him to say that she and Lopez ordered
a movie on cable on April 13 called ‘Adventures of Rin Tin’ and had spent the
night in. Her cable records later indicated she rented ‘Tintin’ on April 14 and
did not rent any movies on the 13th. Maraglino hung up after Patterson
pressed her on inconsistencies with Perez’s account, insisting that he could
not get her to contradict Perez.
“Officers searched Maraglino’s home again on April 19. They recovered
the roll of plastic mentioned in Lopez’s letter and photographed a
reciprocating saw blade in a drawer near the hallway. They also recovered
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various images, videos, documents, and BDSM implements from the
home. . . .
“A later search of Perez’s vehicle revealed a plastic bag containing food
wrappers, disposable gloves, a piece of plastic, and a stun baton in working
condition. There was blood on the plastic gloves, pieces of plastic, and the
plastic bag matching Killgore’s DNA. Swabs from the piece of plastic and the
gloves matched Perez’s DNA. The stun baton contained Perez’s DNA on the
straps and handle and Killgore’s DNA on the prongs. There was no semen
found in Perez’s car. Tire treads from Perez’s car were a possible match to
the treads found near Killgore’s body at Lake Skinner.
“Sheriff’s deputies ultimately found no evidence of blood or semen at
Maraglino’s home. They recovered a rope and knife from Maraglino’s truck
but could not connect those items to Killgore’s murder. They also recovered
from Maraglino’s truck a receipt for cleaning products, water, paper towels,
and rubber gloves purchased on April 14.
“A special agent with the Naval Criminal Investigative Service
searched Perez’s home on base and found additional BDSM writings,
including Maraglino’s throat-slit fantasy writing. Maraglino’s cell phone was
found a year and a half later, cleared of text data, disassembled, and
underneath several suitcases in a closet in her brother’s house in Missouri.
The clothes worn by Maraglino, Perez, and Killgore on April 13 were never
recovered.
“At trial, Perez admitted he had lied to Perry and detectives about
taking Killgore downtown, and he admitted taking Killgore’s cell phone
downtown to match that story. He claimed he had lied to protect Maraglino
but denied doing so to give her more time to clean up. Perez admitted he had
misled Killgore into believing they were going on a cruise long after they had
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already missed it in order to get her into his car. He also admitted telling
Becky Z. on October 17, 2013, ‘everybody had a role to play that night,
including myself.’ On redirect, Perez explained this statement referred only
to his role in the cover-up and that he had also told Becky, ‘I didn’t kill
anybody.’ ”
“Lopez did not present any testimony in her case-in-chief; her counsel
argued she was the perfect slave or patsy—a masochist, not a sadist—and
there was no evidence she had any role besides authoring a confession-suicide
letter to protect her mistress and master. . . .
“Following deliberations, on October 21, 2015, the jury convicted Perez
and Maraglino [and Lopez as described above].”
“On January 8, 2016, the court sentenced Lopez to LWOP on count 1,
life with possibility of parole on count 4, a stayed term on count 3 pursuant to
section 654, and a two-year upper term for count 5.”
II.
Change in the Law Governing Felony Murder
In 2018, our Legislature enacted Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437), which “significantly limited the scope of the felony-
murder rule to effectuate the Legislature’s declared intent ‘to ensure that
murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.’ ”
(People v. Strong (2022) 13 Cal.5th 698, 707–708 (Strong).) As amended, the
law “limits liability under a felony-murder theory principally to ‘actual
killer[s]’ ([§] 189, subd. (e)(1)) and those who, ‘with the intent to kill,’ aid or
abet ‘the actual killer in the commission of murder in the first degree’ (id.,
subd. (e)(2)).” (Strong, at p. 708.) “Defendants who were neither actual
15
killers nor acted with the intent to kill can be held liable for murder only if
they were ‘major participant[s] in the underlying felony and acted with
reckless indifference to human life.’ ”4 (Ibid.)
Senate Bill 1437 also created a procedural mechanism for those
convicted under the former law to seek relief under the law as amended.
(Strong, supra, 13 Cal.5th at p. 708; former § 1170.95, now § 1172.6.)
Defendants seeking such relief may initiate the process by filing a petition
declaring “that ‘[t]he petitioner could not presently be convicted of murder . . .
because of [the] changes to . . . [s]ection 188 or 189.’ ” (Strong, at p. 708.) If
the trial court determines the petition establishes a prima facie case for
relief, it issues an order to show cause and the matter proceeds to an
evidentiary hearing at which the prosecution bears the burden of proving
beyond a reasonable doubt that the petitioner is guilty of murder under the
4 Our Supreme Court has identified factors that are to be considered in
determining whether an individual was a major participant in a felony who
acted with reckless indifference to human life. The following non-exclusive
factors are used to determine whether a defendant was a major participant in
the felonies that resulted in death: (1) the defendant’s role in planning the
criminal enterprise that led to one or more deaths; (2) the defendant’s role in
supplying or using lethal weapons; (3) the defendant’s awareness of
particular dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants; (4) whether the defendant
was present at the scene of the killing, in a position to facilitate or prevent
the actual murder, or play a particular role in the death; and (5) the
defendant’s conduct after lethal force was used. (People v. Banks (2015) 61
Cal.4th 788, 799–803 (Banks).) The following non-exclusive factors are used
to determine whether the defendant acted with reckless indifference: (1) the
defendant’s use of or awareness of the presence of a weapon or weapons;
(2) the defendant’s physical presence at the scene and opportunity to restrain
confederates or aid the victim; (3) the duration of the crime; (4) the
defendant’s knowledge of any threat the confederates might represent; and
(5) the defendant’s efforts to minimize the risks. (People v. Clark (2016) 63
Cal.4th 522, 618–623 (Clark).)
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law as amended by Senate Bill 1437. (§ 1172.6, subds. (c), (d)(3); Strong, at
pp. 708, 709.) If the prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to the conviction,
must be vacated and the petitioner must be resentenced on the remaining
charges. (§ 1172.6, subd. (d)(3).)
III.
Proceedings on Petition for Resentencing
In April 2021, Lopez petitioned for resentencing under former section
1170.95, now section 1172.6.5 After appointing counsel, the trial court issued
an order to show cause and scheduled the matter for an evidentiary hearing.
In its return, the People argued Lopez was ineligible for relief because
the trial evidence proved beyond a reasonable doubt that she was guilty of
first degree felony murder either (1) as a major participant in the underlying
felonies who acted with reckless indifference to human life or (2) as an aider
and abettor of the murder who acted with malice aforethought. In her reply
to the return, Lopez disagreed and claimed the evidence did not support the
conclusions she was either the actual killer, an aider and abettor who acted
with malice aforethought, or a major participant who committed the
underlying felonies with reckless indifference to human life. She also argued
her youth (age 25 at the time of the murder) was a factor that further
undermined the conclusion she acted with reckless indifference.
5 The petition itself is not in the appellate record. However, on appeal
the parties agree that a petition was filed. Although the trial judge who
presided over the evidentiary hearing stated he had not seen the petition, the
order to show cause stated the superior court was “in receipt of a Petition for
Resentencing . . . filed by [Lopez].”
17
A. Evidentiary Hearing
At the hearing, the People submitted on the trial transcripts and this
court’s opinion in Maraglino. Lopez testified in her defense and offered
testimony from two expert witnesses, pathologist Howard Robin and
psychologist Kristina Malek.
1. Lopez’s Testimony
On direct examination, Lopez testified to having endured a difficult
childhood. She stated that her father hit her and she had memories that
caused her to believe her paternal grandfather had sexually abused her.
Also, she was a lesbian, and she felt her family, who were churchgoers,
“wanted [her] to stop being gay.”
Lopez attended community college and started working as a CNA
(certified nursing assistant) at age 20 or 21. She was drawn to BDSM, as she
“enjoyed pain and . . . drift[ed] into somewhere where enjoying pain was
something that gave someone else pleasure.” At one point, she became
involved with a couple, Heather and James. She shared an apartment with
James’s son. The son was abusive to her, and she hated him. He was the
victim in her ciphered abduction, torture, and homicide fantasy. Lopez
testified she authored the fantasy at Maraglino’s urging as a kind of therapy.
On cross-examination, however, she admitted Maraglino could not read the
secret code she used to write it, and the fantasy was her “private thoughts
and [her] thoughts alone.”
When Lopez met Maraglino and Perez, Lopez was about 23, Maraglino
was 35 or 37, and Perez was in his late thirties or early forties. Maraglino
made Lopez feel accepted and like she “wasn’t a freak.” Lopez entered a
slave contract with Maraglino, and they had a collaring ceremony, which was
“kind of being married in BDSM.” They would engage in play sessions in
18
which Lopez would take pleasure in receiving pain, and Maraglino would
take pleasure in causing it. Maraglino also talked “quite a bit” to Lopez
about her sexual fantasies, which included kidnapping scenarios.
Maraglino was controlling. Lopez explained that once she was with a
mistress she no longer had rights: as a slave, her role was to do what she
was told and not to question Maraglino.
Lopez worked until 5:00 on April 13, 2012. She planned to go to her
family’s house the next day with Maraglino and Hernandez, one of
Maraglino’s friends. Killgore was a friend of Hernandez. Maraglino “couldn’t
stand” Killgore. Maraglino and Hernandez would refer to Killgore as “the
disease syphilis,” so Lopez did as well. Lopez admitted saying to Maraglino
and Hernandez that she would “walk [Killgore] off the plank” at the party,
but she testified she was not actually planning on “doing something” to
Killgore.
When Lopez arrived home from work to Maraglino’s house in Fallbrook
on April 13, Maraglino was helping Perez with his clothes. Lopez was told
that Perez was going to downtown San Diego and Maraglino and Lopez would
be having “a girls night.” Lopez did not know where Perez was going and did
not ask.
After Perez left, Maraglino and Lopez went to the grocery store in
Maraglino’s truck. When they went to check out, Maraglino did not have her
wallet, so she told Lopez to “go out to the car and check.” Lopez searched the
truck but did not find the wallet, so she drove the truck back home, which
took seven minutes. While parking, Lopez “nicked” her own car with the
truck. She entered the house at the lower of its two levels—the same level as
her bedroom, a former tool room, and an area she referred to as “the
dungeon.” When she entered, she saw the light on in the tool room and Perez
19
sitting on the stairs looking “distraught or distracted.” Perez asked her
where Maraglino was. Lopez said she was at the grocery store and Lopez had
come home to retrieve her wallet. Perez “noticed [Lopez] was . . . anxious”
and asked, “What’s wrong?” Lopez told him she had hit Maraglino’s truck
“again.” They went outside and examined the truck but found no damage.
Lopez then reentered the house, retrieved her own wallet, and returned
to the store. She and Maraglino purchased their items, and at Maraglino’s
insistence they went straight home. Maraglino did not tell Lopez that Perez
had just texted her to come home.
They arrived home at around 8:20. Maraglino told Lopez to wait a few
minutes before entering the house but did not explain why. Lopez remained
in the truck for “a couple minutes.” Then she grabbed the groceries and
entered the house through the downstairs entry. Inside, she saw a female in
“a BDSM position”— on her hands and knees with her head on the ground.
The female’s head was turned away and Lopez did not recognize her. Lopez
could see tape on the back of the female’s head and assumed it covered her
mouth. Lopez did not see signs that she was breathing and could not tell
whether she was alive. Maraglino and Perez were “conversing” nearby.
Lopez denied knowing what they were talking about; she explained they were
talking quietly, and part of being a slave was “not listening when your
owners are talking.”
After standing there for around one minute, Lopez went upstairs to put
away the groceries. She saw Maraglino come upstairs and return downstairs
carrying handcuffs. Perez’s truck drove away from the house 10 minutes
later. Maraglino did not come back upstairs.
After Lopez finished putting away the groceries, she moved to the
living room, which she said was technically a violation of the rules for slaves.
20
There, she purchased and watched the pay-per-view movie “The Adventures
of Tintin.” She testified she did not hear any sounds of BDSM play coming
from downstairs. When asked whether she heard the sound of power tools,
she responded that she took medication that gave her “sleep paralysis.”
Lopez testified she never saw the female again.
Lopez testified that Maraglino told her to write the confession letter.
Lopez did not know how Killgore was killed; the details in the letter were
supplied by Maraglino. The letter was designed to “piss off the cops” so they
would believe Lopez was guilty without conducting an investigation. The
plan was for Lopez to confess to committing the crimes and then kill herself.
Maraglino told Lopez that if she did not commit suicide, Maraglino would kill
Lopez, herself, and her unborn baby.
On cross-examination, Lopez admitted lying during custodial
interviews with law enforcement, but claimed she did so at Maraglino’s
direction. She also admitted following Perez to Lake Skinner in the early
morning hours of April 14, 2012, but denied knowing they were going there to
dispose of Killgore’s body. She further admitted discarding evidence, like a
knife and handcuffs, in a porta-potty. And she agreed that she and
Maraglino had purchased Windex “to wipe prints,” but claimed they only
used it inside Maraglino’s truck.
2. Dr. Robin’s Testimony
Dr. Robin reviewed the medical examiner’s investigative report and
autopsy report, as well as transcripts of the medical examiner’s testimony.
He testified that Killgore’s death was caused by ligature strangulation.
Echoing the medical examiner’s trial testimony, Robin testified that with
strangulation, loss of consciousness normally occurs within 10 to 15 seconds
21
and death normally occurs within one to two minutes.6 Robin stated that red
blood cells were found in Killgore’s lungs, but only a small amount, not
enough to soak a pillow with blood.7 Finally, based on larvae on Killgore’s
body, he opined that her body was deposited at Lake Skinner from “Saturday
[April 14] at midnight going into Sunday [April] 15th.” He testified this
opinion was “not inconsistent or consistent with the death occurring 24 hours
prior.”
3. Dr. Malek’s Testimony
Dr. Malek met with Lopez and administered psychological tests. Malek
opined that Lopez suffers from complex trauma caused by childhood physical,
emotional, and sexual abuse; persistent depressive disorder since childhood;
and sexual masochism disorder. She also provisionally diagnosed Lopez with
autism disorder. Lopez received elevated test scores for “severe aggression,”
although some instances in which Lopez reported acting aggressively were
emotional outbursts rather than physical violence. Malek opined there was a
power differential in Lopez’s relationship with Maraglino, but acknowledged
the dynamics of abuse within their relationship “may have been consensual.”
B. Trial Court Ruling
After taking the matter under submission, the trial court denied
Lopez’s petition in an oral ruling. The court began by stating it found Lopez’s
testimony to be credible in “some areas with regards to background” but did
6 Dr. Robin did not address or indicate disagreement with the medical
examiner’s trial testimony that how fast death by strangulation occurs
depends in part on whether pressure is applied, released, and applied again
(which can delay death “for hours”), and that the amount of hemorrhaging in
Killgore’s eyes was consistent with pressure being applied and released.
7 In her confession letter, Lopez wrote that Killgore “soaked [a] pillow
with her harpy blood.”
22
not find her testimony to be reasonable or credible “with regards to what
happened on the day of the incident.” The court also stated that Lopez’s
conviction for torture meant the jury found beyond a reasonable doubt that
Killgore was alive when Lopez was participating in the incident.
The court then addressed the Banks and Clark factors (see fn. 4, ante)
and made detailed factual findings on each factor. It based its findings
largely on Lopez’s admissions in the confession letter to using a Taser, pillow,
and rope to kill Killgore and power tools to attempt to dismember her, the
medical examiner’s testimony corroborating these actions, and the torture
conviction which further supported the conclusion Killgore was alive when
Lopez participated in the crimes.
Starting with the Banks (major participant) factors, the court reasoned
that although Lopez was not involved in planning the kidnapping, she did
have a role in using lethal weapons, including because she admitted to using
a Taser, pillow, and rope to kill. On the awareness of dangers factor, the
court found that while Lopez understood the master-mistress-slave dynamic
in Maraglino’s household to be limited to consenting adults who used safety
practices, “by the time [Lopez] was involved in the situation it would have
been quite clear to her that this was not a consensual situation [with]
safeguards . . . and that it was a very dangerous situation indeed.” It also
found, based on the language Lopez used when talking about Killgore, that
Lopez appeared to adopt Maraglino’s dislike of Killgore. With respect to
presence at the scene and ability to prevent or facilitate the murder, the court
found Lopez admitted in the confession letter to being present at the scene
and strangling Killgore, and it found that after lethal force was used Lopez
tried to dismember Killgore and then helped in disposing of her body.
23
Turning to the Clark (reckless indifference) factors, the court reasoned,
based in large part on Lopez’s statements in the confession letter, that she
used or was aware of the presence of dangerous weapons and admitted to
being present at the scene and killing Killgore. Based on cell phone data, the
court found the duration of the underlying felonies was “significant”—from
7:37 (when Perez picked up Killgore) until “around [4] a.m.” (when Killgore’s
body was deposited in Riverside County). As for Lopez’s knowledge of her
cohorts’ likelihood of killing, the court found Maraglino had previously
threatened a woman who was involved with Perez (i.e., Marina), and
Maraglino had an intense dislike for Killgore, all of which was known to
Lopez. Finally, the court found no indication Lopez made any effort to
minimize the risk of the violence.
The court then addressed additional factors. It observed that the
People cited “as another relevant factor” that Lopez had acted out a “long-
held fantasy” of abduction, torture, killing and concealing, as evidenced by
her ciphered writing, It also noted that the defense had pointed to the “catch-
all” that Lopez was young at the time of the incident. Finally, the court
referenced Lopez’s confession letter and said it had given particular
consideration to whether Lopez was willing to die for Maraglino. Having
reviewed the photographs of Lopez’s self-inflicted wounds, the court described
the wounds as “extreme” and stated “[i]t was very clear . . . she did actually
intend to kill herself at that time.” The court found Lopez’s willingness to kill
herself for Maraglino to be “strong evidence” Lopez was also willing to kill on
Maraglino’s behalf to please Maraglino.
The court concluded based on “all these different factors” and “all the
evidence” that Lopez would still be liable beyond a reasonable doubt under
current felony murder law, because she was a major participant who acted
24
with reckless indifference to human life. It further found that “for the same
reasons previously stated, that she would still be liable for murder beyond a
reasonable doubt under a malice aforethought theory as well.”
A minute order reflecting the denial of Lopez’s petition was entered on
September 12, 2023.
DISCUSSION
I.
Relevant Legal Principles
Lopez contends the record contains insufficient evidence to support a
finding she was the actual killer or a major participant who acted with
reckless indifference to human life. Such claims are evaluated under the
substantial evidence standard of review. (People v. Reyes (2023) 14 Cal.5th
981, 988.) When applying this standard, we “examine the record
independently for substantial evidence—that is, evidence which is
reasonable, credible, and of solid value that would support a finding beyond a
reasonable doubt.” (Banks, supra, 61 Cal.4th at p. 804 [cleaned up].) “We
review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the [trier of
fact] could reasonably have deduced from the evidence. Conflicts and even
testimony that is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.” (People v. Zamudio (2008) 43 Cal.4th
327, 357 (Zamudio) [cleaned up].)
“The same standard governs in cases where the prosecution relies
primarily on circumstantial evidence.” (Zamudio, supra, 43 Cal.4th at
p. 357.) We “presume, in support of the judgment, the existence of every fact
25
the trier of fact could reasonably deduce from the evidence, whether direct or
circumstantial.” (Clark, supra, 63 Cal.4th at p. 610.) We do not reweigh the
evidence or reevaluate a witness’s credibility; we look for substantial
evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg); People v.
Manibusan (2013) 58 Cal.4th 40, 87.) And “ ‘unless the testimony is
physically impossible or inherently improbable, testimony of a single witness
is sufficient to support a conviction.’ ” (People v. Ghobrial (2018) 5 Cal.5th
250, 281 (Ghobrial).)
One of the foundational principles of appellate review is that “the
[order] challenged on appeal is presumed correct, and it is the appellant’s
burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.) Thus, when an appellant “claims on appeal that
[her] conviction was based on insufficient evidence of one or more of the
elements of the crime of which [s]he was convicted, we must begin with the
presumption that the evidence of those elements was sufficient, and the
[appellant] bears the burden of convincing us otherwise.” (Ibid.)
To overcome the presumption of correctness, the appellant must raise
in her opening brief a developed argument specifying how the evidence fails
to support the factfinder’s adverse findings. (See People v. Stanley (1995) 10
Cal.4th 764, 793 (Stanley) [when “an appellant makes a general assertion,
unsupported by specific argument, regarding insufficiency of evidence,” the
reviewing court may treat the point as waived].) The failure to comply with
these requirements allows the reviewing court to treat the point as forfeited.
(See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 (Duff) [challenge forfeited
where not raised in opening brief]; People v. Spector (2011) 194 Cal.App.4th
1335, 1372, fn. 12 (Spector) [challenge forfeited where not properly raised as
an independent issue in opening brief].)
26
II.
Lopez Fails To Demonstrate Insufficient Evidence Supports the Determination
She Aided and Abetted the Murder with Malice Aforethought
The trial court’s denial of Lopez’s petition was based on the
determinations she remained liable for murder (1) as a major participant in
the underlying kidnapping or torture who acted with reckless indifference to
human life, and (2) as an aider and abettor of the murder who acted with
malice aforethought. These are independent grounds for denying a section
1172.6 petition. (Strong, supra, 13 Cal.5th at p. 703 [“Resentencing is
available under [§ 1172.6] if the defendant neither killed nor intended to kill
and was not ‘a major participant in the underlying felony [who] acted with
reckless indifference to human life, as described in subdivision (d) of
[§] 190.2.’ ”]; see People v. Harris (2024) 105 Cal.App.5th 623, 631 [after Sen.
Bill 1437, an aider and abettor in a murder “may still be criminally liable if
that individual personally possesses malice aforethought, whether express or
implied”].) To overcome the presumption that the denial of her petition was
correct, Lopez bears the burden of showing both theories of liability are
unsupported by substantial evidence.
She fails to do so. Her opening brief is devoid of any challenge to the
trial court’s determination she remained liable for murder under the second
theory—i.e., as an aider and abettor who acted with malice aforethought.
Instead, she has challenged the factual validity of an actual killer theory
(which the court did not rely on for its ruling) and a major
participant/reckless indifference theory.
In a footnote of her reply brief, apparently recognizing the omission,
she asserts for the first time that “if the evidence fails to support a felony
murder theory, which it does, it necessarily fails to support any theory of
27
direct liability.” This is the entirety of her argument. In addition to being
belated and relegated to a footnote, the apparent challenge to the viability of
a direct aiding and abetting/malice aforethought theory is undeveloped. For
these reasons, we deem the attempted challenge forfeited. (Duff, supra, 58
Cal.4th at p. 550, fn. 9; Spector, supra, 194 Cal.App.4th at p. 1372, fn. 12; see
People v. Rangel (2016) 62 Cal.4th 1192, 1218 [argument forfeited where
raised for first time in reply]; People v. Lucatero (2008) 166 Cal.App.4th 1110,
1115, fn. 1 [“A footnote is not a proper place to raise an argument on
appeal.”]; Stanley, supra, 10 Cal.4th at p. 793 [argument forfeited where
appellant made only a “general assertion, unsupported by specific argument,
regarding insufficiency of evidence”].)
Even if we were to consider the forfeited challenge, we would conclude
that it lacks merit. In essence, Lopez’s claim is that to the extent there is
insufficient evidence to support the trial court’s finding she was a major
participant in the underlying felonies who acted with reckless indifference to
human life, there is necessarily insufficient evidence to support the court’s
finding she was an aider and abettor in the murder who acted with malice
aforethought. As we explain next, Lopez fails to establish the evidence is
insufficient to support the finding she was a major participant who acted
with reckless indifference. Because the premise of her challenge to the
malice aforethought theory fails, the challenge itself also fails.8
8 Because the trial court did not deny Lopez’s petition on the theory she
was the actual killer, we do not need to consider her contention that the
record provides no credible basis for finding her to be an actual killer.
28
III.
Lopez Fails To Show Insufficient Evidence Supports the Determination She
Was a Major Participant in the Kidnapping and Torture Who Acted with
Reckless Indifference to Human Life
A. Major Participant
Because the trial court found in favor of Lopez on the first of the Banks
major participant factors, we need only consider Lopez’s claims that the
evidence is insufficient to support adverse findings on the second through
fifth factors.
1. Second Factor—Role in Supplying or Using Lethal Weapons
As we have mentioned, the trial court’s resolution of this factor was
primarily based on Lopez’s statements in the confession letter that she used a
Taser, pillow, and rope to kill Killgore and power tools to attempt to
dismember her. However, despite the importance of the confession letter to
the court’s finding, within the relevant section of her opening brief Lopez
brings only a very limited challenge to the court’s reliance on the letter. She
merely asserts, without explanation, that the letter is “patently fabricated”
and its contents are therefore inherently improbable or physically impossible.
(See People v. Ennis (2010) 190 Cal.App.4th 721, 729 (Ennis) [testimony may
be rejected by a reviewing court when it is “inherently improbable or
incredible, i.e., unbelievable per se, physically impossible or wholly
unacceptable to reasonable minds” (cleaned up)].) She offers no supporting
reasoning or logic that would justify us in concluding the statements the
court relied upon must be rejected as inherently improbable or physically
impossible. Her conclusory assertions fall short of a properly developed
29
appellate argument. For this reason alone, we reject her challenge.9 (See
Stanley, supra, 10 Cal.4th at p. 793 [it is not the role of the reviewing court to
“construct a theory supportive of [the defendant’s] innocence and inconsistent
with the prosecution’s version of the evidence”].)
Lopez does offer several developed arguments attacking particular
statements in the letter as physically impossible or inherently improbable.
But she does so within a different section of her opening brief, under a
heading in which she contends the evidence is insufficient to prove she was
the actual killer. We are not required to consider arguments raised under a
different heading that concerns a different topic (particularly where, as here,
we are not asked do so). (Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate
opening brief must state each point raised under a separate heading];
Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 377,
fn. 3 (Dinslage) [court may disregard argument not set out under proper
heading]). However, even if we were to consider Lopez’s extraneous attacks
on the confession letter, we would conclude they lack merit.
“To warrant the rejection of the statements given by a witness who has
been believed by a [factfinder], there must exist either a physical
impossibility that they are true, or their falsity must be apparent without
resorting to inferences or deductions.” (Ennis, supra, 190 Cal.App.4th at
pp. 728–729, italics added [cleaned up].) “In other words, the challenged
evidence must be improbable on its face.” (Ibid. [cleaned up], quoting People
9 Lopez also attacks the credibility of Perez’s testimony blaming her for
the murder. As the People observe, however, the trial court did not mention
Perez’s testimony when ruling on Lopez’s resentencing petition. And because
Lopez’s admissions in the confession letter on their own are sufficient to
support the court’s ruling (Ghobrial, supra, 5 Cal.5th at p. 281), we need not
address her challenge to Perez’s testimony.
30
v. Mayberry (1975) 15 Cal.3d 143, 150.) This means “we do not compare it to
other evidence (except, perhaps, certain universally accepted and judicially
noticeable facts).” (Ennis, at p. 729.)
Although Lopez tries to demonstrate that certain statements in the
letter fall into the category of evidence that is insufficient because it is
inherently improbable or impossible, her arguments do not adhere to the
foregoing rules. Her specific contentions are: (1) there is “no evidence” of a
blood-stained pillow “or that [Killgore] bled profusely, or at all”; (2) the
assertion Killgore arrived at Maraglino’s home at 11:15 “made no sense” in
light of cell phone data; (3) there is “no evidence” of the mutilation marks and
bruises described in the letter “except for” the cutting injuries and bruises
identified by the medical examiner; (4) “no physical evidence” tied Lopez to
Killgore’s death; (5) there is “no evidence” Killgore was bound or gagged with
duct tape even though the letter stated this occurred; and (6) the letter states
Killgore tried to make Perez jealous, which is similar to Perez’s own cover-up
story and shows the letter was designed to support his false story.
None of these contentions establishes the physical impossibility or
inherent improbability of the referenced evidence, because all of them rely on
comparisons with other evidence. Determining whether certain facts
asserted within the letter are corroborated by “no evidence” or “no physical
evidence” requires a comparison with other evidence—i.e., the existence or
nonexistence of corroborative evidence. The same is true of her claim the
statement about the time of Killgore’s arrival “made no sense,” which
requires a comparison with cell phone data, and her claim that yet another
statement was falsified because it was similar to Perez’s version of events,
because they require us to compare the letter with other evidence. She
therefore fails to show the specific statements challenged, much less the
31
letter as a whole, must be disregarded as inherently improbable or physically
impossible.
2. Third Factor—Awareness of Particular Dangers Posed by the
Nature of the Crime, Weapons Used, or Past Experience or
Conduct of the Other Participants
Lopez’s challenge to the sufficiency of the evidence supporting the third
major participant factor fails because her arguments either impermissibly
ask us to reweigh evidence or revisit credibility decisions, or they address
evidence the trial court did not rely on when it made adverse factual findings
on this factor.
Lopez’s challenge is based in part on the claim it is “entirely plausible”
given the length of time Perez was alone with Killgore (from 7:37 until
approximately 8:20) that Killgore was already dead by the time Lopez arrived
home from the grocery store with Maraglino. Alternatively, she claims that
even if the killing occurred later, “nothing credible in the record” connects her
to any part of the kidnapping, torture, or attempted sexual battery, and the
most we can “credibly draw from” the evidence is she was involved only after
the killing. She also argues that her testimony that she slept through any
noises generated by the assaults on Killgore “is indeed reasonable.” We reject
these contentions as impermissible requests to reconsider the trial court’s
adverse credibility finding, reweigh the evidence and replace the court’s
factual findings with our own. (Lindberg, supra, 45 Cal.4th at p. 27 [“A
reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility.”].)
Next, Lopez raises a number of arguments that are unsuccessful
because they disregard the trial court’s findings and the evidence on which
the court relied. Lopez argues the “undisputed evidence” shows that as far as
she knew, Perez and Maraglino were “ ‘safe’ players” who respected people’s
32
comfort zones. The court explicitly found as much, but it went on to resolve
the awareness factor against Lopez based on the evidence she participated in
the crimes. The court reasoned she would have known by the time of her
involvement that the situation was dangerous to Killgore. Because Lopez
does not address this dispositive finding by the court, she falls short of
demonstrating error. Lopez also argues that Perez’s prior acts of sexual
violence were unknown to her, and the fantasies of Perez and Maraglino
cannot be used against her because they were ruled inadmissible against her
at trial. These attacks are similarly misplaced because the court did not rely
on this evidence for its adverse finding on this (or any other) factor.
Finally, Lopez contends that her ciphered torture and homicide fantasy
“cannot properly be considered as incriminating” because “[f]antasy is not
reality” (United States v. Curtin (9th Cir. 2007) 489 F.3d 935, 961 (conc. opn.
of Kleinfeld, J.) (Curtin)) and “[f]antasizing about committing a crime . . . is
not a crime” (United States v. Valle (2d Cir. 2015) 807 F.3d 508, 511 (Valle)).
We are not persuaded. First, Lopez fails to show she preserved her right to
bring this challenge on appeal by objecting to the fantasy evidence on this
ground in the trial court.10 (See Evid. Code, § 353, subd. (a) [a finding “shall
not be set aside” absent an objection to the evidence on the “specific ground”
asserted on appeal].)
Even assuming the challenge has been preserved for appeal, Lopez does
not convince us the trial court erred. The federal appellate decisions she cites
10 We also note the ciphered fantasy was not one of the items of evidence
the trial court relied on to resolve this factor against Lopez. However, the
court did discuss the ciphered fantasy later in its ruling, characterizing it as
“another relevant factor” cited by the People. Although it is not clear what
weight the court gave this “factor,” for the reasons we discuss Lopez fails to
show any reliance on the factor was erroneous.
33
are not controlling (People v. Zapien (1993) 4 Cal.4th 929, 989) nor do we find
them persuasive in the context of this case. Valle was a prosecution for a
conspiracy that was “entirely virtual [in] nature” (Valle, supra, 807 F.3d at
p. 517), in which internet fantasy chats and emails were the sole evidence on
which the prosecution built its case (id. at p. 516). This case, by contrast,
involves a homicide rather than an inchoate crime, as well as a far more
comprehensive body of evidence, and thus does not raise the same concerns
as Valle about criminalizing private sexual fantasy or drawing lines between
fantasy and actual criminal intent. Curtin involved an alleged use of an
interstate facility to attempt to persuade a minor to engage in sexual acts.
(Curtin, supra, 489 F.3d at p. 936.) There the question on appeal was
whether “stories” found in the defendant’s possession could be used to show
his intent. (Id. at p. 957.) Judge Kleinfeld’s concurrence is an impassioned
rejection of the relevance of such evidence based on the First Amendment
implications of criminalizing the private possession of reading material.
(Curtin, at pp. 959–960 (conc. opn. of Kleinfeld, J.).) Unlike Curtin, Lopez
previously authored (as opposed to merely possessed) a torture and homicide
fantasy about a person she disliked in reality, making the fantasy more
relevant to her mental state, and less evocative of First Amendment
concerns, than the “stories” discovered on Curtin’s computer. In addition, as
the People point out, our Supreme Court has impliedly approved the use of
fantasy evidence to show the existence of a culpable motive. (People v. Davis
(2009) 46 Cal.4th 539, 604 [defendant’s prior crimes were relevant and
admissible to prove motive to sexually assault the victim, Polly Klaas, where
the defendant admitted having sexual fantasies about assaulting and binding
the prior victims].)
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3. Remaining Major Participant Factors
Lopez challenges the fourth and fifth major participant factors all in a
single, four-sentence paragraph. She does not raise new arguments. Instead,
she merely asserts that “much the same analysis drives [these] factors,”
without indicating which “analysis” she is referring to. If this reference to an
earlier analysis is meant to incorporate her prior arguments on the major
participant factors, we have already concluded those arguments lack merit.
If the reference is meant to refer back to arguments in the section of her
opening brief in which she challenges the sufficiency of the evidence to
support a finding she was the actual killer, we are not required to consider
those arguments, particularly because Lopez has not asked us to do so.
(Dinslage, supra, 5 Cal.App.5th at p. 377, fn. 3.)
In any event, the only other relevant arguments within this part of the
opening brief are meritless challenges to the conclusion Lopez participated in
torturing or kidnapping Killgore. Lopez’s argument that she did not
participate in torturing Killgore is that no torture occurred at all because
none of the injuries inflicted on Killgore satisfied both elements of the crime.
(See CALCRIM No. 810 (Torture) [crime requires proof that (1) the
“defendant inflicted great bodily injury on someone else” and (2) when
inflicting the injury, “the defendant intended to cause cruel or extreme pain
and suffering for the purpose of revenge, extortion, persuasion, or for any
sadistic purpose” (italics added)].)
We need look no further than the evidence of Killgore’s strangulation to
reject this claim. The medical examiner testified at trial that the amount of
hemorrhaging in Killgore’s eyes was consistent with strangulation pressure
being applied and released (thus causing more blood to accumulate in the
eyes), an experience he described as likely to be painful and to involve
35
suffering. Lopez tries to downplay this testimony by claiming the examiner
compared the pain level of strangulation to a chokehold during childhood
horseplay. This is not accurate. In explaining to the jury why Killgore was
likely to have experienced pain, the examiner testified the strangulation
pressure inflicted on her would have been “a greater degree of force” than a
childhood chokehold. (Italics added.) He did not state the pain levels were
equivalent.
Lopez also contends she could not have participated in the kidnapping
of Killgore because she arrived home after Killgore had already been
captured and there is no evidence she moved Killgore while Killgore was
alive. (See CALCRIM No. 1215 (Kidnapping, § 207, subd. (a)) [elements of
kidnapping include that the defendant “took, held, or detained another
person by using force or by instilling reasonable fear” and “moved the other
person . . . a substantial distance”].) This argument fails, however, because it
overlooks essential principles of Lopez’s criminal liability and the evidence
supporting them. Lopez fails to acknowledge or address the aiding and
abetting theory of liability with which the jury was instructed. (See
CALCRIM No. 401 [defendant is guilty of aiding and abetting if, knowing of
the perpetrator’s criminal intent, the defendant aided and abetted the
perpetrator’s commission of the crime “[b]efore or during the commission of
the crime”].) She also fails to recognize that kidnapping is a continuing
offense that persists “until such time as the kidnapper releases or otherwise
disposes of the victim and has reached a place of temporary safety.” (People
v. Barnett (1998) 17 Cal.4th 1044, 1159.) We additionally note that the
statements in the confession letter that the trial court accepted as true
support her conviction as an aider and abettor of the kidnapping, because
they described specific actions taken by Lopez to restrain or assist in
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restraining Killgore before Killgore was disposed of (e.g., grabbing Killgore’s
ankle; slamming Killgore into the stairs; wrapping a rope around Killgore’s
neck).11
B. Reckless Indifference to Human Life
Next, Lopez asserts a series of perfunctory challenges to the sufficiency
of the evidence supporting the trial court’s resolution of the Clark reckless
indifference factors. These challenges fail, largely because they are
undeveloped.
On the first factor (knowledge, use and number of weapons), she merely
asserts “based on the above analysis” that the evidence fails to establish this
factor, without indicating which analysis she is referring to. Our rejection of
her prior arguments compels us to reject this one as well.
Lopez’s challenge to the second reckless indifference factor (physical
presence and opportunity to restrain the crime and/or aid the victim) consists
of the bare assertion that “[n]o ‘evidence that is reasonable, credible, and of
solid value’ supports a finding that Lopez was even aware of her co-
defendants’ plans or intentions with Killgore on the night of the incident,
much less that she was present for the killing, had the opportunity to
restrain the crime, and/or the opportunity to aid Killgore.” Her challenge to
the third reckless indifference factor (duration of the felony) is an equally
conclusory assertion that “the evidence fails to show anything more than the
11 We need not and do not address the People’s argument that Lopez is
prohibited under the doctrine of issue preclusion from questioning the
validity of the conclusions she participated in torturing and kidnapping
Killgore, because we have rejected Lopez’s arguments on the merits. And we
do not address Lopez’s additional challenge to the sufficiency of the evidence
supporting her attempted sexual assault conviction because it is not a
predicate for felony murder. (See § 189, subd. (a) [listing predicate felonies].)
37
act of assisting the perpetrators after the conduct that caused the death [was]
complete.” We reject both challenges because they are undeveloped (Stanley,
supra, 10 Cal.4th at p. 793) and impermissibly ask us to reject the trial
court’s credibility findings and reweigh the evidence (Lindberg, supra, 45
Cal.4th at p. 27).
Turning to the fourth reckless indifference factor (knowledge of cohort’s
likelihood of killing), Lopez contends no substantial evidence supports the
conclusion she had the ability to subjectively appreciate the risk of danger.
(See Clark, supra, 63 Cal.4th at p. 617 [knowledge of likelihood of killing has
objective and subjective components].) This is so, she claims, “because of the
evidence” of her emotional and psychological instabilities. We disagree there
is insufficient evidence supporting this factor. Lopez’s own testimony
supported the opposite conclusion. She testified that as a CNA she possessed
an automatic tendency to observe vital signs like indications of breathing.
The trial court could properly conclude on the basis of this and other
evidence, including that she personally strangled Killgore, that Lopez
possessed the necessary subjective appreciation of the consequences of her
and her cohorts’ actions.
Lopez’s only argument on the fifth reckless indifference factor (efforts
to minimize the risks of violence) is that this factor cannot be held against
her “[b]ased on the foregoing analysis.” As we have rejected Lopez’s earlier
analyses, we reject this argument as well.
C. Youth Factor
Finally, Lopez contends the trial court erroneously failed to consider
her youth at the time of the incident as a factor in its reckless indifference
analysis. However, the record shows the court did, in fact, consider this
factor.
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Since at least 2021, courts have recognized that a defendant’s youth at
the time of the felony victim’s death is relevant to the reckless indifference
analysis. (See People v. Harris (2021) 60 Cal.App.5th 939, 960 (Harris)
[“given Harris’s youth at the time of the crime [(17 years old),] . . . it is far
from clear that Harris was actually aware of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the other
participants” (cleaned up)]; In re Moore (2021) 68 Cal.App.5th 434, 453
(Moore) [“It is well recognized that children generally are less mature and
responsible than adults and often lack the experience, perspective, and
judgment to recognize and avoid choices that could be detrimental to them.
As a result, the law has historically reflected the same assumption that
children characteristically lack the capacity to exercise mature judgment and
possess only an incomplete ability to understand the world around them.”
(Cleaned up.)].)
In two cases decided soon after Harris and Moore, trial courts were
determined to have erroneously failed to consider the defendant’s youth
before denying resentencing under former section 1170.95, now section
1172.6. (People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093 (Jones);
People v. Oliver (2023) 90 Cal.App.5th 466, 488 (Oliver).) The trial court in
Jones gave a “detailed explanation” for denying resentencing but “did not
mention Jones’s age [(20 years old)] or maturity level” at the time of the
crime. (Jones, at p. 1091.) The Court of Appeal recognized that ordinarily, a
trial court is presumed to have followed the law and “duly considered the
evidence,” and “the fact that a court did not specifically mention certain
evidence does not mean that the court ‘ignored’ that evidence.” (Id. at
p. 1092.) It noted, however, that the trial court issued its decision only weeks
after Harris was decided and months before Moore was decided. (Jones, at
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p. 1092.) Given the state of the law when the trial court issued its ruling, the
appellate court found it unlikely the trial court would have known to consider
the defendant’s youth and maturity level, “particularly to the extent now
required by cases issued after [the resentencing] hearing.” (Ibid.)
In Oliver, the trial court denied the defendant’s petition for
resentencing in December 2020, before either Harris or Moore was decided.
(Oliver, supra, 90 Cal.App.5th at p. 488.) And in seeking resentencing,
defense counsel did not argue that youth was a factor weighing against
Oliver’s culpability. (Ibid.) The appellate court found that “[u]nder these
circumstances” it was unlikely the trial court would have known to consider
Oliver’s age and maturity level “ ‘particularly to the extent now required by
cases issued after [the resentencing] hearing.’ ” (Ibid., quoting Jones, supra,
86 Cal.App.5th at p. 1092.)
In this case, the People argue, and we agree, the procedural facts are
distinguishable from Jones and Oliver and point to the conclusion the trial
court did not fail to give due consideration to Lopez’s youth and associated
characteristics (e.g., susceptibility to peer pressure). Unlike Jones and
Oliver, the trial court issued its decision in September 2023, over a year after
Moore and Harris were decided.
Unlike Oliver, defense counsel did not fail to point to Lopez’s youth as a
factor that mitigated her culpability. To the contrary, in replying to the
People’s return to the order to show cause, defense counsel both cited and
quoted Moore, urged the trial court to take Lopez’s age and maturity into
account, and argued her codefendants’ ages were also “significant.”
Unlike Jones, the record in this case is not silent as to whether the trial
court actually considered Lopez’s youth in reaching its decision. At the start
of the hearing, the court stated it had read Lopez’s reply to the People’s
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return, an affirmative indication it was aware of Lopez’s reliance on the
youth factor and its relevance to her mental state under Moore. When
addressing the factors it evaluated in reaching its ruling, the court
specifically stated, “The Defense also points to a catch-all that the Defendant
was young, which she was at the time when this incident occurred,” (italics
added), demonstrating it was not only aware of the defense argument but
agreed Lopez was “young” at the time of the incident. The court then stated
it had “look[ed] at all these different factors” in concluding Lopez was a major
participant who acted with reckless indifference to human life, another
indication it considered Lopez’s youth in reaching its decision. (Italics
added.) It also stated it had considered the testimony of Dr. Malek, an
indication it was aware of and considered Lopez’s symptoms of childhood
trauma.
Given the timing of the trial court’s decision vis-á-vis Harris and Moore
and the affirmative indications the court was aware of and considered Lopez’s
youth in reaching its decision, we have no reason to doubt the trial court
followed the law and “duly considered the evidence.” (Jones, supra, 86
Cal.App.5th at p. 1092.)
In reply, Lopez argues for the first time that “the youth factor,
[whether] taken individually or collectively with the other evidence, precludes
a finding [she] acted with the requisite ‘reckless indifference to human life.’
(People v. Keel (2022) 84 Cal.App.5th 546, 562–563 [(Keel)].)” It is not clear
whether this argument is meant to refute the People’s claim that any failure
to address the youth factor was harmless, or whether it is meant to assert a
new error based on the failure of the trial court to give sufficient weight to
the youth factor even assuming it did consider it. In either case, we reject the
claim.
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To the extent Lopez is responding to the People’s harmlessness
argument, we have no occasion to consider harmlessness because we have
found no error. To the extent Lopez is raising a new argument, it is forfeited
because it is belated and unaccompanied by an explanation for the delay.
(Duff, supra, 58 Cal.4th at p. 550, fn. 9; Spector, supra, 194 Cal.App.4th at
p. 1372, fn. 12.) In any event, the argument is unpersuasive. Lopez does not
cite a case reversing a denial of resentencing based solely on the defendant’s
youth at the time of the offense. Instead, she relies on Keel, in which this
court found the defendant’s age of 15 at the time of the crimes to be an
additional factor which, when considered in light of the conclusion that the
evidence was insufficient to support adverse findings on several Clark
factors, precluded the determination that he acted with reckless indifference
to human life. (Keel, supra, 84 Cal.App.5th at pp. 562–563.) Keel is
inapposite. Here we have not found the evidence insufficient to support
adverse findings on any of the Clark reckless indifference factors.
DISPOSITION
The order is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
KELETY, J.
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