People v. Bernal CA2/2

Filed 9/16/21 P. v. Bernal CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B307506

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA125356)
v.
ORDER MODIFYING
NICANDRO CORTEZ OPINION AND DENYING
BERNAL, REHEARING

Defendant and Appellant. NO CHANGE IN THE
JUDGMENT

THE COURT:
It is ordered that the opinion filed on September 2, 2021, be
modified as follows:
 1. On page 5, after the sentence ending in “provocative act
doctrine,” add the following footnote:

2 In a petition for rehearing, defendant argues
that the provocative act doctrine was not the sole
theory presented to the jury because (1) the jury was
instructed on the definition of implied malice in
CALCRIM No. 520, and that definition uses the
words “natural and probable consequences,” and (2)
the jury was instructed on the concept of transferred
intent under CALCRIM No. 562. These arguments
lack merit factually and legally. Factually, these
arguments ignore that both lawyers at trial “agreed”
that the sole theory of liability was the provocative
act theory and that the prosecutor’s closing argument
stuck to that understanding. Legally, these
arguments are wrong. It is well settled that “[t]he
‘natural [and probable] consequences’ language in the
instruction for [implied malice] murder does not
transform [a defendant’s] conviction into one for
murder under the natural and probable consequences
doctrine within the meaning of section 1170.95.”
(People v. Soto (2020) 51 Cal.App.5th 1043, 1059,
review granted Sept. 23., 2020, S263939.) The
transferred intent instruction still requires proof that
the defendant personally acted with malice, and
section 1170.95 does not disturb convictions resting
on findings of personal malice. (§§ 1170.95, subd.
(a)(3); 188, subd. (a)(3).)

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 * * *

There is no change in the judgment.

——————————————————————————————
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.

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Filed 9/2/21 P. v. Bernal CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B307506

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA125356)
v.

NICANDRO CORTEZ
BERNAL,

Defendant and Appellant.

APPEAL from an order of the Los Angeles Superior Court,
Kelvin D. Filer, Judge. Affirmed.

Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
 Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.

******
Nicandro Cortez Bernal (defendant) argues that the trial
court erred in summarily denying his petition for resentencing
under Penal Code section 1170.95.1 There was no prejudicial
error, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
“Defendant and his 15-year-old nephew visited a taco
stand. They exchanged words and punches with Juan Medina
(“Medina”), one of the stand’s employees, but eventually left.
They later returned, but this time [d]efendant brought a shotgun
and his nephew brought a knife. Medina had since tucked a BB
gun into his apron. Upon arriving, [d]efendant drew his shotgun,
Medina fled, and [d]efendant shot him in the back. An unknown
shooter shot [d]efendant’s nephew in the chest . . . . Medina
lived; the nephew did not.” (People v. Bernal (Oct. 16, 2014,
B251438 [nonpub. opn.]).)
II. Procedural Background
A. Underlying conviction, sentence, and appeal
“The People charged defendant with (1) the attempted
murder of Medina (§§ 664, 187)[,] and (2) the murder of the
nephew, on the theory that [d]efendant’s provocative act of
shooting at Medina set in motion the chain of events resulting in

1 All further statutory references are to the Penal Code
unless otherwise indicated.

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the nephew’s death ([§ 187]). The jury found [that] [d]efendant’s
acts were not premeditated, and accordingly found him guilty of
the attempted (but not premeditated) murder of Medina, and the
second (but not first) degree murder of the nephew. The court
imposed a sentence of 35 years to life on the second degree
murder charge, based on 15 years for the murder plus 20 years
for a firearm enhancement. The court stayed the attempted
murder sentence under section 654.” (Ibid., fn. omitted.) We
affirmed in an unpublished decision. (Id. at p. 6.)
B. Petition for resentencing
In February 2020, defendant filed a form petition to vacate
his second degree murder conviction and for resentencing under
section 1170.95. After receiving an unsolicited opposition to the
petition from the People, the trial court summarily denied the
petition. Relying upon the record of conviction as well as its own
“vivid recall” of the trial of this case, the court enumerated
several reasons for concluding that defendant was ineligible for
relief under section 1170.95 as a matter of law, including that (1)
defendant’s murder conviction rested on the provocative act
murder theory, and (2) defendant was a “major participant” in
the melee who “acted with reckless indifference to human life.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because our consideration
of this argument involves questions of law and the application of
that law to undisputed facts, our review is de novo. (Tsasu LLC
v. U.S Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment was

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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) he “was convicted of . . .
second degree murder,” and (3) he “could not be convicted of . . .
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a).) In
January 2019, our Legislature amended section 188 to provide
that “in order to be convicted of murder, a principal in a crime
shall act with malice aforethought” and that “[m]alice shall not
be imputed to a person based solely on his . . . participation in a
crime.” (§ 188, subd. (a)(3).) Our Legislature’s purpose was to
ensure that “[a] person’s culpability for murder [is] premised
upon that person’s own actions and subjective mens rea.” (Stats.
2018, ch. 1015, § 1(g).)
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our
Supreme Court held that if a defendant files a facially compliant
petition and requests the appointment of counsel, the trial court
must appoint counsel and entertain further briefing regardless of
whether the record of conviction unequivocally demonstrates that
the defendant is not entitled to relief. (Id. at p. 964.)
Here, defendant’s petition was facially compliant and he
requested counsel. Thus, Lewis dictates the conclusion that the
trial court erred in summarily denying defendant’s petition.
That being said, Lewis also provides that any error in
summarily denying a section 1170.95 petition is harmless unless
the defendant can show “‘“it is reasonably probable that if [he or
she] had been afforded assistance of counsel [and briefing] his [or
her] petition would not have been summarily denied without an
evidentiary hearing.”’ [Citation.]” (Lewis, supra, 11 Cal.5th at p.
974.)

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 Defendant has not carried this burden because it is not
reasonably probable that the outcome of this proceeding would
have been any different, even if defendant had counsel and the
opportunity for further briefing. That is because the sole theory
of liability presented to the jury by the instructions—and hence
the sole theory of liability underlying the jury’s guilty verdict—
for defendant’s second degree murder conviction is the
provocative act doctrine. Under that doctrine, a person is liable
for murder if he “maliciously commits an act that is likely to
result in death, and the [person’s intended] victim kills [a third
party] in reasonable response to that act.” (People v. Gonzalez
(2012) 54 Cal.4th 643, 655, italics added.) Because “[a] murder
conviction under the provocative act doctrine thus requires proof
that the defendant personally harbored the mental state of
[implied] malice” (ibid.; People v. Gilbert (1965) 63 Cal.2d 690,
704 [“malice” required under the doctrine is “conscious disregard
for life”], judg. vacated on other grounds sub nom. Gilbert v.
California (1967) 388 U.S. 263; People v. Smith (2005) 37 Cal.4th
733, 747 [“conscious disregard for life” is “implied malice”]), the
jury’s guilty verdict (in conjunction with the jury instructions)
constitutes a finding that defendant personally acted with malice,
and thus could “still be convicted” of murder after January 2019.
This is undoubtedly why every court to consider the issue has
concluded that a trial court may deny a section 1170.95 petition
for a murder conviction based on the provocative act doctrine
without an evidentiary hearing. (People v. Swanson (2020) 57
Cal.App.5th 604, 612-616, review granted Feb. 17, 2021,
S266262; People v. Johnson (2020) 57 Cal.App.5th 257, 266-268;
People v. Lee (2020) 49 Cal.App.5th 254, 262-264, review granted
July 15, 2020, S262459.)

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 Defendant responds with what boils down to three sets of
arguments.
First, he argues the trial court was required to accept his
allegations of being eligible for relief as incontrovertible and was
prohibited from reviewing the record of conviction to determine
eligibility for relief at the prima facie stage. While Lewis
accepted this argument, Lewis also ruled that it was appropriate
to consider the record of conviction in evaluating prejudice
(Lewis, supra, 11 Cal.5th at pp. 973-974) and, as noted above, the
record of conviction unequivocally demonstrates that defendant is
not eligible for relief under section 1170.95 as a matter of law.
Second, defendant argues that the cases holding that
persons convicted of murder under a provocative act theory are
ineligible as a matter of law under section 1170.95 are wrong.
Those cases specifically consider and reject each of the arguments
defendant makes here, and we conclude that their analysis is
sound. What is more, the analysis in these cases is firmly
grounded in our Supreme Court’s precedent.
Lastly, defendant argues that the trial court made a
number of other errors—namely, (1) making factual findings that
defendant was a major participant who acted with reckless
indifference to the value of human life, and making such findings
is impermissible at the prima face stage (e.g., People v. Drayton
(2020) 47 Cal.App.5th 965, 982), (2) relying on its own “vivid
recollection” of the trial to make those factual findings, and (3)
incorrectly making the factual finding that defendant had acted
with premeditation when the jury specifically found no
premeditation. We need not examine these errors because they
are wholly independent of the rationale we rely upon to affirm
the trial court’s ruling and because our task is to review the

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court’s ruling, not its rationale (People v. Chism (2014) 58 Cal.4th
1266, 1295, fn. 12).
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, Acting P. J.
ASHMANN-GERST

_________________________, J.
CHAVEZ

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