Filed 5/4/21 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075857
v. (Super.Ct.No. FWV1000664)
ESTEBAN HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Esteban Hernandez took this appeal from the denial of his
motion to set aside a murder conviction pursuant to Penal Code section 1170.95 (section
1170.95). Defendant, however, pled guilty to voluntary manslaughter, not to murder.
Thus, the trial court correctly found him statutorily ineligible for section 1170.95 relief.
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“[S]ection 1170.95 relief is not available to those offenders who pled guilty to voluntary
manslaughter.” (People v. Sanchez (2020) 48 Cal.App.5th 914, 920.)
There is nothing more of substance to this appeal, and defendant’s counsel filed an
opening brief on appeal raising no issues, citing People v. Wende (1979) 25 Cal.3d 436.
Wende’s procedures mandating judicial scrutiny of the record apply only to a defendant’s
direct appeal, not to a postjudgment appeal such as this one. (People v. Serrano (2012)
211 Cal.App.4th 496, 503-504.) The failure to raise any issues in an obviously meritless
postjudgment appeal could warrant dismissal of this appeal as abandoned through a brief
order. (People v. Scott (2020) 58 Cal.App.5th 1127, review granted Mar. 17, 2021,
S266853.)
Pursuant to a common practice, however, we permitted defendant to file a
supplemental brief. With the filing of a supplemental brief, this appeal arguably is
contested and should be decided on its merits in an opinion. (Scott, supra, 58
Cal.App.5th at p. 1131.) We do so.
Defendant’s supplemental brief states that he was arrested on a murder charge and
acknowledges that he pled guilty to manslaughter. He argues that he was not a major
participant in the crime and that he has accepted responsibility for his actions and had
achievements while in custody.
Under section 1170.95, we have no authority to set aside a conviction that is not a
murder conviction. The section applies only to those convicted of murder under two
specified theories. (Pen. Code, § 1170.95, subd. (a).) The Legislature has defined those
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who are subject to relief under section 1170.95 and we are constrained by its decision,
regardless of the particular facts of a case. (See People v. Sanchez, supra, 48
Cal.App.5th at p. 920.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
FIELDS
Acting P. J.
MENETREZ
J.
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