Filed 2/10/21 P. v. Hernandez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090985
Plaintiff and Respondent, (Super. Ct. No. 08F03567)
v.
MARK HERNANDEZ,
Defendant and Appellant.
Defendant Mark Hernandez appeals the trial court’s order denying his petition for
resentencing pursuant to Penal Code section 1170.95, 1 arguing the trial court erred when
it ruled he was ineligible for relief under the statute. We affirm.
LEGAL BACKGROUND
Senate Bill No. 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018
Reg. Sess.). Senate Bill No. 1437 was enacted to “amend the felony murder rule and the
1 Further undesignated statutory references are to the Penal Code.
1
natural and probable consequences doctrine, as it relates to murder, 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Effective January 1,
2019, the legislation amended sections 188 and 189 and added section 1170.95 to the
Penal Code.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [defining first degree murder] in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the actual killer. [¶]
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major participant in
the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
The new section 1170.95 permits those convicted of felony murder or murder
under the natural and probable consequences doctrine to petition the sentencing court to
vacate the conviction and to be resentenced on any remaining counts where: “(1) A
complaint, information, or indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could be convicted for first degree or second degree murder. [¶] (3) The
2
petitioner could not be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
The petition filed under section 1170.95 must include the following: “(b)(1)(A) A
declaration by the petitioner that he or she is eligible for relief under this section, based
on all the requirements of subdivision (a). [¶] (B) The superior court case number and
year of the petitioner’s conviction. [¶] (C) Whether the petitioner requests the
appointment of counsel.”
If the petition is missing any of the information required by section 1170.95,
subdivision (b)(1) and that information “cannot be readily ascertained by the [trial] court,
the court may deny the petition without prejudice to the filing of another petition and
advise the petitioner that the matter cannot be considered without the missing
information.” (§ 1170.95, subd. (b)(2).)
Once a complete petition is filed, section 1170.95, subdivision (c) sets out the trial
court’s responsibilities: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the provisions of
this section. . . . If the petitioner makes a prima facie showing that he or she is entitled to
relief, the court shall issue an order to show cause.”
FACTUAL AND PROCEDURAL BACKGROUND
In 2009 a jury found defendant and his codefendant guilty of second degree
murder and attempted murder, and found true the allegation that defendant personally
used a deadly or dangerous weapon in connection with the murder. (§§ 187, subd. (a),
664, 12022, subd. (b)(1)).
We affirmed those criminal judgments in 2013. (People v. Halford et al. (Jan. 23,
2013, C062401) [nonpub. opn.] (Halford).)
In affirming, we explained we had “no reason to suspect that the jury did not
follow its charge to determine whether Hernandez had knowledge of Halford’s purpose
and entertained the specific intent to aid and facilitate the murder . . . and the attempted
3
murder.” Defendant “knew before he . . . accompanied Halford to the levee,” the location
of the murder, “that Halford was hell bent on ‘deal[ing] with the mother fucker.’
Hernandez armed himself with two knives and a long stick. . . . On the levee, Hernandez
was in Halford’s presence when Halford announced his intention to kill” the attempted
murder victim. “Finally, and most importantly, Hernandez personally provided Halford
one of the knives and proceeded to use the other one himself.” (Halford, supra,
C062401, [pp. 19-20].)
In January 2019 defendant filed a petition for resentencing under then newly
enacted section 1170.95.
The petition included a form declaration, in which defendant stated (1) a
complaint, information, or indictment was filed against him that allowed the prosecution
to proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine, (2) at trial, he was convicted of first or second degree murder
pursuant to the felony murder rule or the natural and probable consequences doctrine, and
(3) he could not be convicted of first or second degree murder under the changes to
sections 188 and 189. Defendant also requested the trial court appoint counsel. He did
not include any attachments or exhibits to his form petition and declaration.
In July 2019 the trial court ordered “special briefing on whether defendant . . .
[was] ineligible” for relief. The trial court explained that it “appear[ed]” defendant
“ha[d] not shown that he [fell] within the provisions of” section 1170.95, as the “court’s
underlying file for case No. 08F03567 contain[ed] the verdicts and the jury instructions
that were given,” and the “jury instructions did not include any instruction on either
felony-murder or the natural and probable consequences doctrine.” “In addition,” the
trial court wrote, the “summary of the trial evidence, contained in” our prior opinion
“affirming the judgment on appeal, describes a scenario in which both defendant . . . and
his codefendant were armed with knives, were fighting, and that the defense at trial was
based on self-defense and provocation by the victims.” (Italics added.) “If defendant . . .
4
does not stand convicted of felony murder or murder under a natural and probable
consequences doctrine theory, it appears that he is not eligible to file” a section 1170.95
petition.
The People argued defendant was ineligible for section 1170.95 relief because he
was convicted of murder and attempted murder “under an intent to kill theory.” The
People’s brief referenced our prior opinion “detail[ing] the facts establishing . . .
defendant . . . act[ed] with intent to kill . . . .”
In a two-sentence brief, defendant’s counsel “respectfully submit[ted] the matter
on the entire record contained in the Superior Court file.”
The trial court—after reminding the parties that it “issued an order requesting
special briefing on whether defendant . . . is eligible to seek relief . . . to vacate his second
degree murder conviction”—concluded defendant was ineligible for relief in a written
order, explaining that defendant “[did] not show that the court’s assessment of his
convictions in Case No. 08F03567 and the basis for those convictions [was] erroneous.”
Defendant timely appealed.
DISCUSSION
Defendant argues the trial court erred when it relied on our prior opinion “to
determine the facts of” defendant’s crimes and rule defendant ineligible for section
1170.95 relief. The People argue defendant’s argument is forfeited on appeal because he
“acquiesce[d]” to the trial court’s reliance on the prior opinion, and fails on the merits in
any event. Defendant insists his trial counsel “did not acquiesce to the trial court’s use of
the facts from the appellate opinion to deny relief. Rather, trial counsel . . . specifically
submitt[ed] the issue of eligibility on the contents of the trial court file.” (Italics added.)
The Court File and the Record of Conviction
Subdivision (b)(2) of section 1170.95 “directs the court in considering the facial
sufficiency of the petition to access readily ascertainable information. The same material
that may be evaluated under subdivision (b)(2)—that is, documents in the court file or
5
otherwise part of the record of conviction that are readily ascertainable—should similarly
be available to the court in connection with the first prima facie determination required
by subdivision (c). . . . [Citation.] . . . The record of conviction might also include other
information that establishes the petitioner is ineligible for relief as a matter of law
because he or she was convicted on a ground that remains valid notwithstanding Senate
Bill No. 1437’s amendments to sections 188 and 189 (see § 1170.95, subd. (a)(3)).”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, italics added, review granted
Mar. 18, 2020, S260493.)
“A court of appeal opinion, whether or not published, is part of the appellant’s
record of conviction. [Citations.] Accordingly, it [is] proper for [a] superior court to
consider” an opinion affirming a murder conviction “in determining whether [a
petitioner] ha[s] made a prima facie showing of eligibility for relief under section
1170.95 or whether he was ineligible for relief as a matter of law.” (People v. Verdugo,
supra, 44 Cal.App.5th at p. 333, rev. granted.)
Jury Verdicts
Though the jury instructions that the trial court relied on are not in the record on
appeal, the trial court explained in both its “special briefing” order and in its order
denying defendant’s petition that the jury instructions at defendant’s trial “did not include
any instruction on either felony-murder or the natural and probable consequences
doctrine.”
Defendant did not contest the trial court’s characterization of the court file below.
Rather he “submit[ted] the matter on the entire record contained in the Superior Court
file.” Similarly, defendant does not contest the trial court’s characterization on appeal.
Consequently, we accept it as accurate for purposes of this appeal. (Cf. Federer v.
County of Sacramento (1983) 141 Cal.App.3d 184, 186 [admission in a party’s brief “is
the equivalent of a concession” that “controls the disposition of the case”].)
On such a record, the trial court’s ruling was not erroneous.
6
“ ‘[J]ury instructions given at a petitioner’s trial may provide “readily
ascertainable facts from the record” that refute the petitioner’s showing,’ permitting a
trial court to determine that a petitioner is not entitled to relief.” (People v. Daniel (2020)
57 Cal.App.5th 666, 676, quoting People v. Soto (2020) 51 Cal.App.5th 1043, 1055, in
which review was granted Sept. 23, 2020, S263939.)
Here, because the jury instructions did not include any instruction on either felony
murder or the natural and probable consequences doctrine, “[t]he given instructions
demonstrate that [defendant] was convicted of second degree murder on a theory that
survives Senate Bill No. 1437’s changes to sections 188 and 189. [Citation.] . . . Thus,
[defendant] is not ‘[a] person convicted of felony murder or murder under a natural and
probable consequences theory,’ and he is therefore ineligible for relief as a matter of
law.”2 (People v. Daniel, supra, 57 Cal.App.5th at p. 677, fn. omitted.)
2 To the extent the parties invite us to rule on the separate question whether a conviction
for attempted murder may be challenged under the provisions of section 1170.95, we
decline the invitation. In his petition, defendant challenged only his conviction for
murder; not his attempted murder conviction. And though the trial court referred to
defendant’s attempted murder conviction (largely, it appears, to support its analysis that
defendant harbored intent to kill) the first sentence of the order on appeal makes clear
that the trial court adjudicated the petition only as to defendant’s murder conviction.
We note, however, that while it appears the District Courts of Appeal have expressed
multiple perspectives on some aspects of Senate Bill No. 1437’s impact on criminal
liability for the crime of attempted murder, no published case has ruled that Senate Bill
No. 1437 created an avenue to attack an attempted murder conviction that, like
defendant’s, is final. (See People v. Love (2020) 55 Cal.App.5th 273, 278-279 [one
group of appellate courts “has held that Senate Bill [No.] 1437 did not eliminate the
natural and probable consequences theory for attempted murder at all”; the “second group
has held that Senate Bill [No.] 1437 eliminated the natural and probable consequences
theory for attempted murder prospectively, but not retroactively”; the “last group has held
that Senate Bill [No.] 1437 eliminated the natural and probable consequences theory for
attempted murder prospectively and retroactively as to nonfinal convictions, but not
retroactively as to final convictions”], review granted Dec. 16, 2020, S265445.)
7
Accordingly, any error by the trial court in considering our prior opinion was
harmless. (See People v. Watson (1956) 46 Cal.2d 818, 837; People v. Corona (1989)
211 Cal.App.3d 529, 535 [“the applicable harmless error standard makes it entirely
unnecessary to decide the merits” of defendant’s argument].)
DISPOSITION
The judgment (order) is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
ROBIE, J.
/s/
MURRAY, J.
8