Filed 5/21/21 P. v. Hernandez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304340
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA127879-02)
v.
ENRIQUE HERNANDEZ,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Janet Gusdorff, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
Enrique Hernandez, convicted of second degree murder in
2014, appeals the denial of his petition for resentencing pursuant
to Penal Code section 1170.951 following an evidentiary hearing
at which the superior court found the People proved beyond a
reasonable doubt that Hernandez had acted with malice when he
participated in the murder of Jonathan Sandoval and, therefore,
was ineligible for relief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Hernandez’s Murder Conviction
Our opinion affirming Hernandez’s second degree murder
conviction (People v. Rangel (June 27, 2016, B258940) [nonpub.
opn.]) describes in detail the evidence presented at trial, which
formed the basis for the superior court’s decision denying
Hernandez’s petition for resentencing.
An information charged Hernandez, his younger brother
Jesus Hernandez2 and Jose Rangel with murder (§ 187), specially
alleged each of them, or a principal, had personally used and
intentionally discharged a firearm causing death (§ 12022.53,
subds. (b), (c), (d) & (e)(1)), and also alleged the murder had been
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)). The three men were tried jointly; Jesus and
Rangel to one jury; Hernandez to a separate jury. Jesus and
Rangel were convicted of first degree murder; Hernandez of
1 Statutory references are to this code.
2 For clarity we refer to Enrique Hernandez as Hernandez
and to Jesus Hernandez as Jesus.
2
second degree murder. Both juries found true the specially
alleged firearm-use and criminal street gang enhancements.3
a. The shooting
Hernandez, Rangel and Jesus were members of Unos Sin
Verguenza (USV), a criminal street gang. On April 11, 2013
two members of the East Side Paramount (ESP) gang, a rival of
USV, beat up then-18-year-old Jesus as he walked home from
Paramount High School with his girlfriend. Later that day Jesus
sent a text message to his friend Rangel, telling him about the
fight. Rangel responded that he was “hunting those cheese puffs
right now.” Cheese puffs is a derogatory term for ESP gang
members. Jesus texted Rangel, “[D]on’t trip . . . . I got them
tomorrow.” Rangel replied in his text message, “Say no mo.”
The next afternoon Rangel texted Jesus to tell him he was
one block away from Paramount High School in ESP territory.
He stated, “[I]t’s hot,” meaning law enforcement was in the area,
and “I got the thing with me,” meaning Rangel had a gun. Jesus
replied in his text message, “I’ll be out right now.”
Hernandez picked up Jesus and Rangel, and the three of
them drove through ESP territory looking for ESP gang
members. They spotted Sandoval crossing the street near
Downey Avenue and Monroe Street. Sandoval was an ESP gang
member, although not one of Jesus’s assailants from the previous
day. Hernandez stopped the car, and Rangel jumped out with his
arm outstretched pointing his gun at Sandoval. He quickly fired
four to five gunshots at Sandoval, killing him. Rangel
3 Hernandez was sentenced to an aggregate indeterminate
state prison term of 40 years to life. Rangel and Jesus were each
sentenced to aggregate indeterminate state prison terms of
50 years to life.
3
immediately got back into the car, and the three men sped away.
A witness saw the shooting and followed Hernandez’s car for a
short while, but stopped the chase after nearly colliding with
another car.
A short time after the shooting, Jesus met his brother
Ricardo’s friend Braiant Mejia at Mejia’s house and told Mejia,
“We just smoked someone,” which Mejia understood meant they
had killed someone. Jesus gave Mejia a gun wrapped in a shirt
or fabric and asked him to hide it in his house. Before leaving
Mejia’s house, Jesus borrowed Mejia’s cell phone and made
three calls, one of which was to Hernandez. Mejia heard Jesus
tell Hernandez, “Relax. It’s all good. We’re okay.” He also
overheard Hernandez telling Jesus, “We’re not good. Someone
saw us.”
b. Hernandez’s custodial interview
During a recorded interview with the police, played for his
jury, Hernandez denied he was a USV gang member but
admitted he had been a member of a tagging crew associated
with the USV gang.
The day before the shooting Jesus had called Hernandez
and told him he had been jumped by three ESP gang members.
Jesus’s assailants had also threatened him. Concerned about his
younger brother, Hernandez picked Jesus up from school the day
after the attack. He planned to find and talk to the individuals
who had threatened Jesus. He intended only to demonstrate a
show of support for his brother and, perhaps, engage in a fistfight
with Jesus’s attackers; he was not armed and did not intend to
shoot anyone.
While they were driving in Hernandez’s car, Jesus called
Rangel; and they went to pick him up. Hernandez did not know
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Rangel. As the three were driving, Rangel spotted Sandoval and
declared, “There he is.” Hernandez made a couple of U-turns and
planned to stop the car and confront the man. Suddenly, Rangel
said, “I got this.” He jumped out of the car and started shooting
at Sandoval. Hernandez was in shock. He explained he did not
know Rangel had a gun. Later in the interview, however, he
admitted he knew a couple of minutes before the shooting that
Rangel had a gun.
c. The People’s gang expert
The People’s gang expert, given a hypothetical resembling
the facts of this case, testified the shooting was conducted in
retaliation for the earlier attack on Jesus and committed to
benefit the USV gang. The expert explained retaliation, at the
same or higher level of violence, was necessary in gang culture to
protect and enhance the gang’s reputation and prevent future
assaults.
d. Jesus’s testimony
Jesus testified in his own defense. His testimony was
admitted before both juries. Jesus claimed he was a member of a
tagging crew and an associate, not a member, of USV.
According to Jesus, the day after he was assaulted, several
ESP members drove by him after school brandishing what
appeared to be a weapon. Jesus was frightened and called
Hernandez to pick him up from school. They drove together for a
while attempting to find the men who had assaulted him the
previous day, but were unsuccessful and soon abandoned that
effort.
On the way home Jesus saw Rangel on the street near
Jesus’s house. He and Hernandez agreed to give him a ride to his
cousin’s house in Progress Park, an area controlled by the ESP
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gang. While in the car Rangel made a phone call and then told
Hernandez to drive to Downey Avenue. When Rangel saw
Sandoval, he said, “Hold on. I know him. Stop.” Hernandez
pulled over, and Rangel got out of the car. Suddenly Jesus heard
several gunshots. Seconds later Rangel hopped back in the car
just as Hernandez swerved to avoid running over Sandoval, who
was lying bleeding in the street. Jesus did not know Rangel had
been armed. He denied any plans with Rangel to find ESP
members and retaliate for the attack on him the previous day.
e. The prosecution and defense theories
The prosecution’s theory was that Rangel, Jesus and
Hernandez planned the murder and were guilty of first degree
premeditated murder either as direct perpetrators or as aiders
and abettors. The prosecutor also argued, even if Hernandez had
intended to commit only an aggravated assault or a simple
assault or a battery, murder was a natural and probable
consequence of the intended target offense. His jury was told, if
it found Hernandez guilty under that theory, the crime was
second degree murder.
Hernandez’s and Jesus’s defense theory was that Rangel
had acted on his own in shooting Sandoval. Neither of them
knew Rangel had a gun. In addition, Hernandez’s counsel argued
Hernandez could not have reasonably foreseen Rangel’s reckless
and murderous actions and thus was not guilty under a theory
that murder was the natural and probable consequence of the
assault or battery offense he had intended to commit.
f. The verdict
The jury found Hernandez guilty of murder. On the verdict
form, which provided, “We find said MURDER to be in the _____
degree (1st or 2nd),” the jury inserted “2nd.” The jury also marked
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“TRUE” to the allegations the offense had been committed for the
benefit of a criminal street gang and a principal personally and
intentionally discharged a firearm in committing the offense.
2. Affirmance of Hernandez’s Conviction Based on the
Natural and Probable Consequences Doctrine
We rejected on appeal Hernandez’s contention his
second degree murder conviction was not supported by
substantial evidence, holding, “[T]here was ample evidence that
he aided and abetted an aggravated assault and murder was the
natural and probable consequence of that target crime:[4] By his
own admission, Hernandez intended to find an ESP gang
member and, if talking did not settle the matter, to attack him;
he also knew Rangel had a gun, creating the deadly situation
that ultimately occurred. [Citation.] Indeed, gang fights between
rival criminal street gangs that escalate into brawls resulting in
homicide are paradigmatic circumstances in which the [Supreme]
Court has upheld natural and probable consequences liability.”
We then noted, because the jury’s second degree murder verdict
was supported by substantial evidence that murder was the
4 In an earlier portion of our opinion rejecting Hernandez’s
argument the trial court had erred in not instructing on
involuntary manslaughter, we held, “Even if Enrique’s jury
believed his highly unlikely version of events—that he intended
at most to aid and abet a simple assault or battery—the evidence
was undisputed that Enrique, Jesus and Rangel were hunting for
ESP gang members; Enrique knew Rangel had a gun; and he
understood Rangel intended to use it and ‘take care of things’ if
the situation got out of hand. On this record there simply was no
material issue whether murder was the natural and probable
consequence of the target offense that Enrique intended to aid
and abet.”
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natural and probable consequence of the target crime Hernandez
intended to commit, “we need not reach the alternative argument
that there was insufficient evidence of direct aiding and abetting
to support the jury’s murder verdict.”
3. Hernandez’s Petition for Resentencing
On January 23, 2019 Hernandez, representing himself,
filed a petition for resentencing under section 1170.95 and
requested appointment of counsel to represent him during the
resentencing process. Hernandez checked boxes on the printed
form petition declaring he was eligible for resentencing because
he had been convicted of first or second degree murder pursuant
to the felony-murder rule or the natural and probable
consequences doctrine and could not now be convicted of murder
because of the amendments to sections 188 and 189 made by
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019.
The superior court reappointed the attorney who had
represented Hernandez at trial to represent him during the
section 1170.95 process.5 After several extensions of time the
prosecutor filed an opposition to Hernandez’s petition, arguing
Senate Bill 1437 and, in particular, section 1170.95 were
unconstitutional and, in any event, Hernandez was ineligible for
resentencing as a principal in Sandoval’s murder. Hernandez
through appointed counsel filed a supplemental petition/reply
memorandum in support of his petition. Hernandez attached as
exhibits to his reply memorandum copies of the briefs filed in his
direct appeal, our opinion affirming the judgments of conviction
5 As provided in section 1170.95, subdivision (b)(1),
Judge Ricardo R. Ocampo, who had presided at Hernandez’s trial
and sentenced him, conducted the section 1170.95 proceedings.
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of Hernandez and his two codefendants (modified slightly with
respect to the restitution fines imposed) and his unsuccessful
petition for review in the Supreme Court.
The court set the matter for a show cause hearing on
January 9, 2020. Both the prosecutor and Hernandez stated they
would not be introducing new evidence at the hearing, relying on
this court’s opinion affirming Hernandez’s conviction and the
trial record.
Following argument of counsel the court denied the
petition, finding the People, via the record of conviction, “proved
beyond a reasonable doubt that the petitioner personally acted
with malice.” Explaining its ruling at the conclusion of the
hearing, the court emphasized that Jesus had been threatened
and assaulted by rival gang members with a gun. Hernandez
was aware of that and went to hunt for the ESP gang members
who had assaulted his brother or any members of ESP. The gang
expert’s testimony indicated disrespect is met with retaliation,
not conversation. As the court noted, “He knew that Mr. Rangel
had a gun. He wouldn’t have gone to go hunting without one. It’s
just logic, common sense.”
The court continued, “Petitioner stopped the car, and the
shooter got out. There was no attempt by either Jesus, his
brother, or the petitioner to get out of the car. If there was an
intention to talk to individuals or even fight individuals, they
would have both gotten out of the car, but they didn’t. The
petitioner waited for the shooter to return to the car and fled.
Not the actions of one that was surprised by Mr. Rangel’s
actions.”
The court added that Hernandez’s subsequent statement,
overheard by Mejia, that “someone saw us” was “inclusive.” “It
9
included himself as opposed to distancing himself from an
unexpected act by [Rangel].”
The court’s minute order mirrored its statement at the
hearing: “This court finds that the People via the record of
conviction have proved beyond a reasonable doubt that the
petitioner personally acted with malice. The petition to vacate
the murder conviction pursuant to [section 1170.95] of the Penal
Code is denied.”
Hernandez filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 838-839
(Gentile)) and significantly limited the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Rodriguez (2020) 58 Cal.App.5th 227, 236,
review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1080.) Senate Bill 1437 also authorized,
through new section 1170.95, an individual convicted of felony
murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate the conviction
and be resentenced on any remaining counts if he or she could
not have been convicted of murder because of Senate Bill 1437’s
changes to the definition of the crime. (See Gentile, at p. 859.)
Once a petitioner makes a prima facie showing he or she is
entitled to resentencing, the superior court must issue an order to
show cause (§ 1170.95, subd. (c)) and hold a hearing to determine
whether to vacate the murder conviction and to resentence the
10
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review granted
Mar. 18, 2020, S260493.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt the petitioner is
ineligible for resentencing (§ 1170.95, subd. (d)(3))—that is, the
People must prove beyond a reasonable doubt every element of
liability for murder under the amended statutes. (See People v.
Rodriguez, supra, 58 Cal.App.5th at p. 230, review granted;
People v. Lopez (2020) 56 Cal.App.5th 936, 949, review granted
Feb. 10, 2021, S265974; but see People v. Duke (2020)
55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309
[prosecutor must only prove a reasonable jury could find the
defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].) The prosecutor and petitioner may rely on the record
of conviction or offer new or additional evidence to meet their
respective burdens. (§ 1170.95, subd. (d)(3); see People v.
Tarkington (2020) 49 Cal.App.5th 892, 898-899, review granted
Aug. 12, 2020, S263219; People v. Drayton (2020) 47 Cal.App.5th
965, 981.)
On appeal from the superior court’s decision denying a
petition for resentencing following an evidentiary hearing, we
apply the deferential substantial evidence standard of review to
the superior court’s factual findings. (People v. Rodriguez, supra,
58 Cal.App.5th at p. 238, review granted; People v. Lopez, supra,
56 Cal.App.5th at p. 953, review granted; see People v. Duke,
supra, 55 Cal.App.5th at p. 120, review granted.) Under this
standard of review our role does not involve a reevaluation of the
evidence. Rather, we presume the existence of every fact the
court could reasonably have deduced from the evidence. (People
11
v. Brooks (2017) 3 Cal.5th 1, 58; People v. Sandoval (2015)
62 Cal.4th 394, 423.)
2. Substantial Evidence Supports the Superior Court’s
Finding Hernandez Acted with Malice in Aiding and
Abetting the Murder of Sandoval
Section 188, subdivision (a)(3), as amended by Senate
Bill 1437, provides, “Except as stated in subdivision (e) of
Section 189 [the felony-murder rule], 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.” (See Gentile, supra, 10 Cal.5th at
p. 846 [“The language of section 188(a)(3) requires a principal to
‘act with malice aforethought’ in order to be convicted of murder,
making no exception for accomplices or second degree murder.
[Citation.] By its terms, section 188(a)(3) permits a second
degree murder conviction only if the prosecution can prove the
defendant acted with the accompanying mental state of mind of
malice aforethought”].)
Thus, to establish Hernandez was ineligible for
resentencing, the People had to prove beyond a reasonable doubt
he acted as a principal (an aider and abettor) in Sandoval’s
murder with express malice (§ 188, subd. (a)(1))—an intent to kill
unlawfully—or implied malice (§ 188, subd. (a)(2))—a dangerous
intentional act, performed with knowledge of the danger to, and
with conscious disregard for, human life. (See Gentile, supra,
10 Cal.5th at p. 850 [“notwithstanding Senate Bill 1437’s
elimination of natural and probable consequences liability for
second degree murder, an aider and abettor who does not
expressly intend to aid a killing can still be convicted of second
degree murder if the person knows that his or her conduct
12
endangers the life of another and acts with conscious disregard
for life”]; see generally CALCRIM No. 520 [defining express and
implied malice].)
Hernandez argues the trial record does not contain
substantial evidence to support the superior court’s finding he
could still be convicted of murder under a direct aiding and
abetting theory. With respect to express malice, he asserts the
jury acquitted him of first degree murder, rejecting the
prosecutor’s express malice argument, and argues that finding
cannot be revisited in the section 1170.95 process. As to implied
malice, Hernandez contends, contrary to the court’s finding,
nothing about his conduct—driving the car to look for opposing
gang members, stopping the car so Rangel could jump out and
driving Rangel from the scene after the shooting—endangered
the life of another or indicated his conscious disregard for life.
Neither argument has merit.
First, Hernandez reads far too much into the jury’s
second degree murder verdict. It is true this verdict was
consistent with, and supported by, the natural and probable
consequences theory advanced by the prosecutor, as we held in
affirming the conviction. But the jury might also have found
Hernandez guilty of second degree murder as a direct aider and
abettor who acted with express malice (an intent to kill), but not
premeditation. (See, e.g., People v. Chun (2009) 45 Cal.4th 1172,
1181 [“‘[s]econd degree murder is the unlawful killing of a human
being with malice, but without the additional elements
(i.e., willfulness, premeditation, and deliberation) that would
support a conviction of first degree murder’”].) That this may not
have been the People’s theory at trial does not preclude the
prosecutor from advancing it at the order to show cause hearing
13
to prove Hernandez’s ineligibility for resentencing. (See People v.
Lopez, supra, 56 Cal.App.5th at pp. 941-942, 955-958, review
granted [petitioner convicted of second degree murder under a
natural and probable consequences theory properly denied
resentencing under section 1170.95 based on proof he could be
convicted of murder on an implied malice theory].) Indeed, it is a
fundamental premise of Senate Bill 1437 that an individual
convicted of murder under the natural and probable
consequences doctrine must be resentenced only if the People
cannot prove he or she would still be liable for murder under a
different theory based on the record of conviction or new or
additional evidence.6
6 That the separate jury hearing somewhat different
evidence, which included Rangel’s police interview, convicted
Rangel and Jesus of first degree murder does not support
Hernandez’s argument that his jury must have rejected express
malice as a basis for finding him guilty of second degree murder.
(See People v. Amezcua and Flores (2019) 6 Cal.5th 886, 917
[“[A]n actual killer and an aider/abettor are not always guilty of
the same offense. Rather, in a homicide prosecution not
involving felony murder or the natural and probable
consequences doctrine, the aider/abettor’s guilt is based on the
combined acts of all the principals and on the aider/abettor’s own
knowledge and intent. Consequently, in some circumstances an
aider/abettor may be culpable for a greater or lesser crime than
the actual killer”]; cf. People v. Superior Court (Sparks) (2010)
48 Cal.4th 1, 13 [“‘[T]he rule of consistency is a vestige of the past
with no continuing validity. Many reasons may explain
apparently inconsistent verdicts: lenience, compromise, differing
evidence as to different defendants, or, possibly, that two juries
simply viewed similar evidence differently. If substantial
evidence supports a jury verdict as to one defendant, that verdict
14
There is ample evidence of Hernandez’s intent to kill as he
facilitated the murder of Sandoval. As the superior court
summarized, Hernandez, knowing his younger brother had been
assaulted by armed rival gang members, went hunting for
members of that gang intending, in his own words, to show
support for his brother. The superior court was entitled to
disbelieve Hernandez’s claim he only intended to talk to the rival
gangsters or perhaps engage in a fistfight, an assertion belied by
his knowledge that the gangsters who had attacked Jesus were
armed and that Rangel had a weapon, his failure to try to
approach Sandoval after the car stopped and Rangel got out, and
the gang expert’s testimony regarding the nature of retaliation
expected within gang culture.
This evidence also supports the finding Hernandez acted
with implied malice. Even if Hernandez did not actually intend
for anyone to be killed, hunting for a rival gang member to
retaliate for that gang’s assault on Jesus, knowing that Rangel
was armed, and then stopping to allow Rangel to attack Sandoval
were unquestionably actions that endangered Sandoval’s life. It
was reasonable for the court to infer that Hernandez knew his
actions created that danger and nevertheless acted with
conscious disregard for the life of their targeted victim.
(See Gentile, supra, 10 Cal.5th at p. 850; People v. Lopez, supra,
56 Cal.App.5th at p. 956, review granted.)
may stand despite an apparently inconsistent verdict as to
another defendant’”].)
15
DISPOSITION
The postjudgment order denying Hernandez’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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