Filed 11/3/21 P. v. Fernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080069
Plaintiff and Respondent,
(Super. Ct. No. VCF190158B)
v.
JOHN GABRIEL FERNANDEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric L.
Christoffersen, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Smith, J.
INTRODUCTION
In 2008, a jury convicted petitioner John Gabriel Fernandez of first degree murder
(Pen. Code,1 § 187, subd. (a))2, with the special circumstance that petitioner intentionally
killed the victim while an active participant in a criminal street gang (§ 190.2, subd.
(a)(22)).3 For this offense, petitioner was sentenced to a term of life without the
possibility of parole.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The court summarily denied the petition on the ground petitioner was ineligible for relief.
On appeal, petitioner argues the court erred in failing to appoint counsel and in
ruling on the petition without affording both parties an opportunity to file responsive
briefing. Although we agree the court erred, we conclude petitioner was not prejudiced
by these errors because the record establishes petitioner is ineligible for resentencing as a
matter of law. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In petitioner’s direct appeal,4 we briefly summarized the facts underlying
petitioner’s offenses as follows:
“[Petitioner] and Brandon Florez were active members of the same
criminal street gang. On August 17, 2007, [petitioner] attacked 16-year-old
D.S., who was mistakenly believed to be a member of a rival gang. Florez
arrived, pulled out a handgun, and fired several shots at the victim. One of
1 Undesignated statutory references are to the Penal Code.
2 Petitioner points out that, when reading the verdict, the court clerk stated the jury
convicted petitioner of murder in the second degree. However, the sentencing minute
order, abstract of judgment, opening brief in petitioner’s direct appeal, and appellate
opinion in petitioner’s direct appeal all state petitioner was convicted of first degree
murder. The verdict forms themselves are not contained in the record on appeal.
3 Petitioner was convicted of additional enhancements, as described below.
4 Our decision in petitioner’s direct appeal was before the trial court and is referred
to by both parties.
2.
the bullets penetrated the victim’s heart and killed him. Florez and
[petitioner] fled together.” (People v. Fernandez (Apr. 7, 2010, F057524)
[nonpub. opn.].)
On November 26, 2008, a jury convicted petitioner of first degree murder. (§ 187,
subd. (a); count 1). The jury further found true a criminal street gang special
circumstance (§ 190.2, subd. (a)(22)), a criminal street gang enhancement (§ 186.22,
subd. (b)), and two firearm enhancements (§ 12022.53, subds. (c), (d), (e)(1)).
On February 20, 2009, the trial court sentenced petitioner to a term of life without
the possibility of parole. A sentence of 25 years to life on one of the firearm
enhancements (§ 12022.53, subds. (d), (e)(1)) was imposed and stayed. On April 7,
2010, this court affirmed the judgment. (People v. Fernandez, supra, F057524.)
On April 22, 2019, petitioner filed a petition for resentencing pursuant to section
1170.95. Therein, petitioner argued he was convicted of murder under a natural and
probable consequences theory and could no longer be convicted of murder due to
changes to sections 188 and 189 made by Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill No. 1437).
On April 29, 2019, the court summarily denied the petition with the statement, “A
review of the Court file demonstrates that petitioner is not eligible for relief.” Petitioner
did not appeal.
On August 26, 2019, petitioner filed a second petition for resentencing pursuant to
section 1170.95. Petitioner once again argued he was convicted of murder under a
natural and probable consequences theory and could no longer be convicted of murder
due to changes to sections 188 and 189 made by Senate Bill No. 1437.
On September 3, 2019, the court summarily denied the second petition, stating, “A
review of the Court file demonstrates that petitioner is not eligible for relief.”
Petitioner timely appealed the denial of the second petition.
3.
DISCUSSION
I. Senate Bill No. 1437 and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend
the felony murder rule and the 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).) The bill accomplished this task by adding three separate provisions to the
Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend
the natural and probable consequences doctrine, the bill added section 188, subdivision
(a)(3), which requires a principal to act with malice aforethought before he or she may be
convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to
amend the felony-murder rule, the bill added section 189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] 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.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.”6 (Gentile, at p. 843.)
5 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
6 The Legislature recently passed, and the Governor signed, a bill amending section
1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet
4.
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender
must file a petition in the sentencing court averring that: ‘(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[;] [¶] [and] (3) The 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)(1)-(3); see also § 1170.95,
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests
the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959-960 (Lewis).)
Where the petition complies with the requirements of section 1170.95, subdivision
(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and
the petitioner may file a reply. The trial court must then review the petition to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this
determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our
analysis. We quote from the version of section 1170.95 presently in effect.
5.
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. Petitioner was not Prejudiced by the Court’s Errors
Petitioner argues the court erred in failing to appoint counsel and in ruling on the
petition without affording both parties an opportunity to file responsive briefing on the
petition. We agree, but conclude the errors were not prejudicial.
At the time the trial court ruled on the petition, our Supreme Court had not
resolved whether section 1170.95 requires the appointment of counsel or further briefing
immediately upon the filing of a facially sufficient petition. (See Lewis, supra, 11
Cal.5th at pp. 961-967.) However, our Supreme Court recently clarified that section
1170.95, subdivision (c) provides for a single prima facie review. Thus, counsel must be
appointed if requested, and briefing must proceed, so long as the petition complies with
the requirements of section 1170.95, subdivision (b)(1). (Lewis, at pp. 962-963, 967.)
Here, there is no argument the petition failed to meet the requirements of section
6.
1170.95, subdivision (b)(1). Accordingly, appointment of counsel and a full opportunity
for briefing were required by section 1170.95, subdivision (c). (See Lewis, supra, 11
Cal.5th at pp. 961-963, 967.) The court erred in disposing of the petition without
following these procedures.
We may affirm only if petitioner was not prejudiced by these errors. To
demonstrate prejudice, petitioner must show that, absent the errors, it is reasonably
probable his petition would not have been denied without an evidentiary hearing. (Lewis,
supra, 11 Cal.5th at pp. 972-974.) Here, petitioner was not prejudiced by the summary
denial of his petition because the record establishes he is ineligible for resentencing as a
matter of law.
To be eligible for relief pursuant to section 1170.95, petitioner must not have been
the actual killer, must not have acted with the intent to kill or malice aforethought, and
must not have been a major participant in the underlying felony who acted with reckless
indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3);
see Gentile, supra, 10 Cal.5th at pp. 842-843.) Here, the jury found true a special
circumstance pursuant to section 190.2, subdivision (a)(22), which imposes a sentence of
death or life without the possibility of parole for a murder involving defendant’s active
participation in a criminal street gang. To make such a finding, the jury was required to
find that petitioner intended to kill the victim. (§ 190.2, subds. (a)(22), (c); accord,
People v. Fayed (2020) 9 Cal.5th 147, 201-202 [considering murder for financial gain
special circumstance pursuant to § 190.2, subd. (a)(1)].) The jury was instructed
regarding this requirement.7 Thus, the jury made the findings necessary to sustain a
murder conviction under the law as amended by Senate Bill No. 1437. Petitioner
therefore is ineligible for resentencing as a matter of law, and he was not prejudiced by
7 We previously granted the People’s request for judicial notice of the special
circumstance instruction given in petitioner’s trial.
7.
the trial court’s summary denial of his petition, even if that denial came prior to the
appointment of counsel and without a full opportunity for briefing. (Lewis, supra, 11
Cal.5th at pp. 972-974.)
Petitioner relies on People v. Brown (2016) 247 Cal.App.4th 211 for the
proposition that the jury’s special circumstance finding does not necessarily exclude the
possibility the jury convicted him under a natural and probable consequences theory.
Brown involved a direct appeal from a conviction for first degree murder with a criminal
street gang special circumstance, along with other offenses and allegations. (Id. at
p. 213.) The Court of Appeal concluded the trial court erred in instructing the jury on the
natural and probable consequences theory of first degree murder. (Id. at p. 225.) Further,
the court could not conclude the instruction was harmless beyond a reasonable doubt.
(Id. at pp. 226-227.) The court acknowledged the special circumstance required finding
the defendant intended to kill the victim but, due to specific jury questions and
irregularities in the taking of the verdict, the court was unable to conclude, beyond a
reasonable doubt, that the guilty verdict was based on a jury finding that the defendant
was the actual killer or a direct aider and abettor. (Ibid.)
In contrast, in petitioner’s direct appeal, this court concluded that error in
instructing the jury on the natural and probable consequences doctrine was harmless
beyond a reasonable doubt in light of the evidence, arguments, and verdict, including the
jury’s finding on the criminal street gang special circumstance. (People v. Fernandez,
supra, F075724.) Moreover, unlike Brown, the instant case does not involve the direct
appeal of a conviction, but rather a petition for resentencing pursuant to section 1170.95.
Under section 1170.95, a petitioner is eligible for resentencing only if he or she could no
longer be convicted of murder because of changes to section 188 or 189 made by Senate
Bill No. 1437. (§ 1170.95, subd. (a)(3).) Senate Bill No. 1437 did not alter murder
liability for a perpetrator who intended to kill the victim. (See §§ 188, subd. (a)(3); 189,
8.
subd. (e).) Thus, the special circumstance finding renders petitioner ineligible for
resentencing as a matter of law.
In sum, because the jury found petitioner intended to kill the victim, petitioner is
ineligible for resentencing as a matter of law. (See People v. Allison (2020) 55
Cal.App.5th 449, 460.) Thus, the court’s error in summarily denying the petition without
the appointment of counsel and without full briefing was harmless. (Lewis, supra, 11
Cal.5th at pp. 972-974.)
DISPOSITION
The order is affirmed.
9.