Filed 11/19/21 P. v. Hernandez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081137
Plaintiff and Respondent,
(Super. Ct. No. VCF092425-02)
v.
JOSE HERNANDEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Snauffer, J.
INTRODUCTION
In 2007, a jury convicted petitioner Jose Hernandez of the first degree murder of
Jeffrey Donaldson (Pen. Code,1 § 187, subd. (a); count 1), with a robbery/burglary
special circumstance (§ 190.2, subd. (a)(17)), and the attempted murder of Officer G.
Byerlee (§§ 187, 664, subd. (e); count 2).2 (People v. Hernandez (May 22, 2009,
F054280) [nonpub. opn.] (Hernandez).)
In 2019, petitioner filed a petition for resentencing on his murder conviction
pursuant to section 1170.95. The court summarily denied the petition on the ground
petitioner was ineligible for resentencing.
On appeal, petitioner asserts he established a prima facie claim for resentencing
relief on count 1, and the court therefore erred in denying the petition without issuing an
order to show cause or holding an evidentiary hearing. He further contends he is entitled
to resentencing on count 2, although he did not raise this contention below.
We conclude the court did not err in summarily denying the petition for
resentencing on count 1 because the record establishes petitioner is ineligible for
resentencing on that count as a matter of law. For reasons we explain, we decline to
address petitioner’s eligibility for resentencing on count 2. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The facts underlying the offenses are not relevant to our determination, and we
therefore summarize them only briefly.3
1 Undesignated statutory references are to the Penal Code.
2 Petitioner was convicted of additional offenses, as described below.
3 The People filed a request for judicial notice of the record in petitioner’s direct
appeal. In his briefing, petitioner quotes extensively from the briefing in his direct
appeal, but does not seek judicial notice of those materials. We will take judicial notice
of our prior opinion in petitioner’s direct appeal, but otherwise deny the motion as the
remaining materials are irrelevant. (See People v. Sanders (2003) 31 Cal.4th 318, 323,
fn. 1 [declining to take judicial notice of documents that were not before the trial court];
2.
“[Petitioner] committed a series of armed robberies and felonies with his
half-brother, Carlos Landois. They committed their final robberies by
separately entering adjoining clothing stores in a shopping center, armed
with semiautomatic handguns and dressed in women’s clothes and wigs.
As they attempted to leave the scene in separate vehicles, Landois fired
multiple shots directly at a police officer who was walking through the
parking lot and looking for the robbery suspect. Landois missed the officer,
but one of Landois’s shots went through the wall of a nearby restaurant and
killed a customer who was eating lunch with his family. The officer
narrowly avoided being shot by Landois, but the officer fired one shot that
instantly killed Landois at the scene. [Petitioner] drove away in his
separate vehicle and he was arrested the next day.” (People v. Hernandez,
supra, F054280.)
Petitioner was charged, convicted, and sentenced as follows:
“On August 10, 2007, [petitioner] was charged with count 1, first
degree felony murder (Pen. Code, § 187, subd. (a)), with a robbery/burglary
special circumstance for which the prosecution sought the death penalty
(§ 190.2, subd. (a)(17)); count 2, attempted murder of a peace officer, with
the special allegation that the offense occurred while the officer was
engaged in the performance of his duties (§§ 187, 664, subd. (e)); counts 3,
4, 5 and 9, second degree robbery (§ 211), with special allegations as to
counts 5 and 9 that defendant personally used a firearm (§ 12022.53,
subd. (b)); counts 6, 7 and 10, second degree commercial burglary (§ 459);
count 8, conspiracy to commit robbery (§ 182, subd. (a)(1)); count 11,
unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)); and
count 12, receiving a stolen vehicle (§ 496d, subd. (a)).
“After jury trials for both the guilt and penalty phases, defendant
was found guilty of all counts, the robbery/murder special circumstance and
the special allegations were found true, and the jury returned the sentence
of life in prison without possibility of parole for count 1, first degree
murder. In addition, the court sentenced defendant to life in prison with the
possibility of parole for count 2, attempted murder, with an aggregate
determinate term of 22 years as follows: count 5, second degree robbery,
the upper term of five years, plus 10 years for the personal use
enhancement; count 9, second degree robbery, one year, plus three years
four months for the personal use enhancement; count 3, second degree
robbery, one year; count 4, second degree robbery, one year; and count 6,
see also People v. Young (2005) 34 Cal.4th 1149, 1171, fn. 3 [judicial notice cannot be
taken of any matter that is irrelevant].)
3.
unlawfully taking or driving a vehicle, eight months; with all terms to run
consecutively. The court stayed the terms imposed for the remaining
counts.” (Hernandez, supra, F054280, fn. omitted.)
On appeal, this court struck the special allegation to count 2 due to instructional
error and vacated the associated sentence. This court otherwise affirmed the judgment
and remanded for further proceedings. (Hernandez, supra, F054280.) The result of those
further proceedings is not reflected in the record on appeal in the instant case.
On February 11, 2019, petitioner, in propria persona, filed a petition for
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that he
was convicted at trial of first or second degree murder pursuant to the felony murder rule
or the natural and probable consequences doctrine.
On March 29, 2019, the People filed a motion to dismiss the petition, arguing
section 1170.95 is unconstitutional. Therein, the People also argued the jury’s finding on
the robbery/burglary special circumstance precluded petitioner from making a prima facie
showing that his conviction falls within the provisions of section 1170.95.
On April 22, 2019, the court appointed counsel to represent petitioner. Counsel
did not file a reply to the People’s motion to dismiss.
On April 17, 2020, the court held a hearing and denied the petition stating, “The
Court finds he is not eligible.”
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “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
4.
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.”4 (§ 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.”5 (Gentile, at p. 843.)
“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
4 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.)
5 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
effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our
analysis of the issues raised in this petition. Except where otherwise indicated, we quote
from the version of section 1170.95 presently in effect.
5.
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
“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
6.
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. Count 1
Petitioner contends he set forth a prima facie claim for relief as to his murder
conviction on count 1, and the trial court erred in summarily denying his petition without
issuing an order to show cause or holding an evidentiary hearing. We conclude the
petition was properly denied at the prima facie stage because the jury’s special-
circumstance finding establishes petitioner 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, and must not have been a
major participant in the underlying felony who acted with reckless indifference to human
life. (§§ 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.)
Here, the jury found true a robbery/burglary special circumstance pursuant to section
190.2, subdivision (a)(17). To find this special circumstance true, the jury was required
to find that petitioner acted “with reckless indifference to human life and as a major
participant” in aiding or abetting the commission of the underlying felony. (§ 190.2,
subd. (d); People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419.) In other words,
“[t]he language of the special circumstance tracks the language of Senate Bill [No.] 1437
and the new felony-murder statutes.” (Gutierrez-Salazar, at p. 419.) By finding this
special circumstance true, the jury made the requisite findings necessary to sustain a
felony-murder conviction under the amended law. The jury’s finding on the
7.
robbery/burglary special circumstance establishes that petitioner is ineligible for
resentencing as a matter of law.
Nonetheless, petitioner argues the special-circumstance finding, standing alone, is
insufficient to render him ineligible for resentencing as a matter of law. In support, he
relies on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark), both decided after his conviction was final. “Banks and Clark
‘clarified “what it means for an aiding and abetting defendant to be a ‘major participant’
in a crime who acted with a ‘reckless indifference to human life.’ ” ’ [Citation.] Banks
identified certain factors to consider in determining whether a defendant was a major
participant; Clark identified factors to guide the determination of whether the defendant
acted with reckless indifference to human life.” (People v. Gomez (2020) 52 Cal.App.5th
1, 13, fn. 5, review granted Oct. 14, 2020, S264033 (Gomez).) Courts of Appeal are split
on the question of whether a special-circumstance finding entered prior to Banks and
Clark renders a petitioner ineligible for section 1170.95 resentencing relief as a matter of
law (see People v. Jones (2020) 56 Cal.App.5th 474, 478-479 [collecting cases], review
granted Jan. 27, 2021, S265854 (Jones)), and our Supreme Court has granted review to
decide the issue (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review
granted Mar. 10, 2021, S266606).
Courts which have held that a pre-Banks and Clark felony-murder special-
circumstance finding bars section 1170.95 resentencing relief have reasoned that Banks
and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at
pp. 482, 484, review granted; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92,
review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449,
458.) These courts further note that our Supreme Court does not require juries to be
instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now
includes optional language drawn from Banks and Clark regarding the factors a jury may
consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding
8.
that the court has a sua sponte duty to instruct on those factors,” and Clark “did not hold
that the court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez, at pp. 92-93;
accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “no basis to
conclude as a general matter that a pre-Banks and Clark jury was instructed differently
than a post-Banks and Clark jury, or resolved different factual issues, answered different
questions, or applied different standards.” (Nunez, at p. 94.)
These courts have also held that an attack on a special-circumstance finding in a
section 1170.95 proceeding effectively constitutes a collateral attack on the judgment.
(People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020,
S264284; Gomez, supra, 52 Cal.App.5th at p. 16, review granted.) According to these
courts, a petitioner who wishes to argue the special-circumstance finding is invalid under
current law must first seek to invalidate that finding through a petition for writ of habeas
corpus before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142;
Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at p. 485, review granted.) These courts
reason that a contrary interpretation “would read into section 1170.95 a new procedure
allowing petitioners to ignore a special circumstance finding—no matter how well
supported in the record—as well as the recognized method of challenging it. Such
petitioners would be allowed to relitigate a prior jury finding at an evidentiary hearing
where the prosecution bears the burden of proving the truth of the finding, beyond a
reasonable doubt, a second time.” (Jones, at p. 485.)
On the other hand, courts that have found a special-circumstance finding
insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark
“construed section 190.2, subdivision (d) in a significantly different, and narrower
manner than courts had previously construed the statute.” (People v. Torres (2020) 46
Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011, abrogated on another
ground by Lewis, supra, 11 Cal.5th at pp. 962-963; accord, People v. Harris (2021) 60
Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802.) Thus, these courts
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surmised that a petitioner with a pre-Banks and Clark special-circumstance finding may
have been convicted based on “conduct that is not prohibited by section 190.2 as
currently understood.” (Torres, at p. 1180; accord, Harris, at p. 958; People v. York
(2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v.
Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the
extent the jury’s finding on a felony-murder special circumstance is legally insufficient
under Banks and Clark, it cannot refute a prima facie showing of entitlement to
resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256, review granted
June 30, 2021, S268862.) Accordingly, in considering whether a petitioner is entitled to
relief pursuant to section 1170.95, the trial court must first determine whether “the
evidence presented at trial was sufficient to support the felony-murder special-
circumstance finding under Banks and Clark.” (Secrease, at p. 264.)
A panel of this court has recently resolved to follow the line of authority holding
that a special-circumstance finding precludes relief as a matter of law. (People v.
Simmons (2021) 65 Cal.App.5th 739, 748-749, review granted Sept. 1, 2021, S270048.)
We agree. Banks and Clark did not state a new rule of law. Rather, they relied on the
United States Supreme Court’s decisions in Enmund v. Florida (1982) 458 U.S. 782 and
Tison v. Arizona (1987) 481 U.S. 137 to clarify principles that had long been in existence
at the time petitioner was convicted. (See In re Miller (2017) 14 Cal.App.5th 960, 978;
accord, People v. Allison, supra, 55 Cal.App.5th at p. 458; Gomez, supra, 52 Cal.App.5th
at p. 13, fn. 5, review granted.) Enmund prohibited felony-murder liability for a
defendant that “did not commit the homicide, was not present when the killing took
place, and did not participate in a plot or scheme to murder,” and explained that, to be
liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend
that a killing take place or that lethal force will be employed.” (Enmund, at pp. 795,
797.) Tison held that, “major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the Enmund culpability
10.
requirement.” (Tison, at pp. 151, 158.) As Banks noted, this language from Tison was
later codified by the California electorate in section 190.2, subdivision (d). (Banks,
supra, 61 Cal.4th at p. 800.) To the extent Banks and Clark illuminated factors a fact
finder might consider in determining whether a defendant was a major contributor who
acted with reckless indifference to human life, they drew those factors from Edmund and
Tison. (See Banks, at pp. 801, 803; see also Clark, supra, 63 Cal.4th at pp. 615, 618-
623.) These principles existed when petitioner was convicted and, absent a determination
on direct appeal or in habeas that the evidence was insufficient to support the jury’s
finding, there is no basis to conclude petitioner’s jury applied different standards than
those described in Banks and Clark.
Based on the foregoing, petitioner is ineligible for resentencing on his murder
conviction as a matter of law, and the court was not required to issue an order to show
cause or hold an evidentiary hearing. The petition was properly denied. (Lewis, supra,
11 Cal.5th at pp. 970-971.)
III. Count 2
Petitioner contends he is entitled to resentencing on his attempted murder
conviction on count 2 because he was convicted under a natural and probable
consequences theory. Petitioner did not seek resentencing on count 2 in the trial court
and raises this issue for the first time on appeal.
As presently written, section 1170.95 does not expressly permit a petition for
resentencing on convictions for attempted murder. (§ 1170.95, subd. (a).) However, as
previously stated, the Legislature recently passed, and the Governor signed, a bill
amending section 1170.95 to “[c]larif[y] that persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those persons convicted of murder
under the same theories.” (Sen. Bill No. 775 (2021-2022 Reg. Sess.), Stats. 2021,
ch. 551, § 1, subd. (a).) As indicated above, these amendments will take effect on
11.
January 1, 2022. We requested supplemental briefing on the effect, if any, of these
amendments on petitioner’s appeal.
The People concede that petitioner may be able to establish a prima facie showing
of eligibility for resentencing on his conviction for attempted murder under the law as
amended by Senate Bill No. 775 (2021-2022 Reg. Sess.). They ask us to stay the appeal
and remand for the trial court to determine petitioner’s eligibility for resentencing on
count 2 in the first instance. Petitioner meanwhile contends he has already established a
prima facie showing on count 2. He asks us to order his “entire petition reinstated” and
to remand with directions for the trial court to issue an order to show cause and hold an
evidentiary hearing.6
Due to the procedural posture of this case, we decline to address petitioner’s
eligibility for resentencing on count 2. Petitioner has not filed a petition for resentencing
on count 2. In effect, he seeks to amend his petition while the matter is pending on
appeal. Moreover, a petition for resentencing must be considered by the trial court in the
first instance, and the trial court has not ruled on any claim regarding count 2. (See
People v. Anthony (2019) 32 Cal.App.5th 1102, 1152-1153; People v. Martinez (2019) 31
Cal.App.5th 719, 727-728.)
We therefore decline to address petitioner’s eligibility for resentencing on his
attempted murder conviction. Petitioner may file a petition for resentencing on his
attempted murder conviction in the trial court, if desired. Petitioner retains any remedies
available to him in the trial court.
DISPOSITION
The order is affirmed.
6 Ordering the petition reinstated, as petitioner requests, would be ineffective, as we
have determined petitioner is ineligible for resentencing on count 1 and the petition did
not request resentencing on count 2.
12.