People v. Hernandez CA3

Filed 2/28/22 P. v. Hernandez CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----

THE PEOPLE, C091247

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-
2009-0008905)
v.
OPINION ON TRANSFER
ARMONDO HERNANDEZ,

Defendant and Appellant.

Defendant Armondo Hernandez appeals from the denial of his Penal Code section
1170.95 petition.1 He argues the trial court applied an incorrect analysis when evaluating
his claim, and also that no substantial evidence supports the court’s finding that he
directly aided and abetted the killing. In an unpublished opinion, we reversed the order
denying the petition and remanded for a new hearing. (People v. Hernandez (Aug. 9,

1 Further undesignated statutory references are to the Penal Code.

1
2021, C091247) [nonpub. opn.].) Our Supreme Court granted the Attorney General’s
petition for review and ultimately transferred the case with directions for this court to
vacate our prior decision and reconsider the cause in light Senate Bill No. 775 (2020-
2021 Reg. Sess.) (Stats. 2021, ch. 551) (Senate Bill No. 775). Upon reconsideration, we
come to the same conclusion; the record does not establish that the trial court applied the
correct analysis to defendant’s claim. We reverse the order denying the petition and
remand for a new hearing.
BACKGROUND
The Murder and Conviction
We take the background facts from our prior opinion on appeal, People v.
Hernandez (June 9, 2015, C068079) [nonpub. opn.], and the record in that case, which
we incorporated by reference at defendant’s request. Defendant and his codefendants,
Roberto Arias (Arias), Martin Flores (Flores), and Jose Hernandez (Jose), were members
of the Proud Brown Trece subset of the Sureños criminal street gang, which is a rival of
the Norteños criminal street gang. 2 On December 16, 2009, Arias, Flores, and Jose
committed multiple assaults and two attempted murders against members, or former
members, of the Norteños. Defendant did not participate.
Two days later, police impounded Flores’s car following a traffic stop. After the
vehicle was impounded, Flores communicated by text and phone calls with Arias and
then went into the Bonfare Market. In the market, Flores exchanged words with Spencer
Sampson (Sampson) (a Norteño who ultimately became the murder victim).
Robert Limon (Limon) (also a Norteño) and Stephanie S. were with Sampson in the
market and left following the exchange. Flores and Arias continued to exchange texts in
which they agreed to meet up at a mutual friend’s house so they could “get” the Norteños

2 As defendant and Jose Hernandez share a surname, we use Jose’s first name.

2
who had insulted Flores at the market, Sampson and Limon. Defendant drove Arias to
the friend’s house and they picked up Flores.
While driving around, defendant and the others attacked Angelo D. and David Z.
Arias was holding a gun. Angelo D. was hit in the back of the head with a rock but was
able to get up and run away. David Z. slipped and fell and before he could get up, the
men attacked him by kicking and punching him. One of the men pointed a gun at him
while the others continued to beat him. Defendant and the others then found and
confronted Sampson and Limon. They circled around Stephanie S.; when Sampson
intervened, Arias lifted his shirt and showed a gun. Someone hit Stephanie S. in the ear
and the groups began to fight. Arias fought with Sampson. Defendant and Flores fought
with Limon. Arias shot and killed Sampson. (People v. Hernandez, supra, C068079.)
The jury found defendant guilty of the murder of Sampson, writing in the verdict
form that its finding was murder in the second degree (§ 187, subd. (a); count 9) and
finding true that a principal discharged a firearm causing death (§ 12022.53, subd. (d) &
(e)). The jury also found defendant guilty of three counts of aggravated assault (former
§ 245, subd. (a)(1)) against David Z. (count 7), Angelo D. (count 8), and Limon (count
11). As to each count, the jury found true the allegation the offense was committed for
the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court sentenced
defendant to a 14-year four-month determinate term in prison and an indeterminate term
of 40 years to life. (People v. Hernandez, supra, C068079.) The jury did not find the
special circumstance of murder carried out to further gang activities true as to defendant.
Petition for Resentencing
Defendant filed a petition for resentencing pursuant to section 1170.95, alleging he
was prosecuted for and convicted of murder under the natural and probable consequences
doctrine, and could not now be convicted of murder following Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill No. 1437). The trial court found defendant had
shown a prima facie case for relief, appointed counsel, and issued an order to show cause.

3
 The parties submitted briefs and orally argued the issue to the court. The People
initially argued if defendant were tried today he “could and would be convicted of second
degree murder under the newly amended section 189,” as he aided and abetted the
murder and was a major participant in the murder.
As relevant here, the trial court stated: “So the issue here is the defendant was
clearly an aider and abettor. So the question would be under the new sentencing law, is
he . . . eligible for resentencing or is he liable for the murder charge as he was convicted.
So the issue would be is he a major participant and did he act with reckless indifference
to human life.” The court reviewed the evidence submitted at trial and then reiterated,
“So the question is, was the defendant a major participant and did he act with reckless
indifference to human life.” The court then referenced the evidence again and then
concluded: “I believe that looking at the totality of the evidence here, it is clear that he
was a major participant, he was not a minor aider and abettor, that they were all fighting
together and he stayed there with them, and that this is also willful and reckless
indifference to human life. So I am going to deny the motion for resentencing.”
Defense counsel protested that the trial court “had applied the wrong standard to
the review of this matter” and argued at length that the question of whether a defendant
was a major participant who exhibited reckless indifference to human life applied to
felony murder, which was not alleged. Defense counsel also noted the prosecution’s
theory at trial had been that defendant aided and abetted the assault, not murder. In
response, the prosecutor stated: “So the court’s analysis is correct. The inquiry is not
what the jury convicted . . . defendant of, whenever this case was initially tried. The
inquiry before the court is could this defendant be convicted of first or second-degree
murder if he were tried today after passage and enactment of Senate Bill 1437.”
Defense counsel and the trial court then engaged in further discussion of the
applicable legal standard, with counsel arguing that the court was required to determine
beyond a reasonable doubt that in convicting defendant, the jury, in fact, relied on a still

4
valid legal theory. After additional back and forth, the court responded: “I am convinced
that had I not given the natural and probable consequences instruction, the jury would
have convicted the defendant based on the other instructions, aiding and abetting, the
other murder instructions, and based on the evidence. And I think that even with the
natural and probable consequences out of the picture, I think he would have been
convicted of murder. [¶] And as I say, [the statute] doesn’t say just because natural and
probable consequences was given, that the petition should be granted. It just says you
have to have a hearing. And I believe the prosecution proved beyond a reasonable doubt
that he was guilty of murder, even aside from natural and probable consequences.”
Defense counsel asked: “Under what theory?” to which the court replied: “Aiding and
abetting the murder of Spencer Sampson.” The court denied the petition.
DISCUSSION
Defendant originally contended the trial court erred in denying his petition for
resentencing as there was not substantial evidence he aided and abetted the killing and
acted with express or implied malice. He also argued the trial court was required to
conduct an independent review to determine if the record established beyond a reasonable
doubt that defendant remains guilty of murder under the current law. The Attorney
General disagreed that this was the applicable standard, but argued that this was the
standard the trial court applied in any event.
Neither party filed supplemental briefing on transfer of this case. We continue to
agree with defendant’s second claim; accordingly, we need not address his first. Senate
Bill No. 1437, which took effect on January 1, 2019, limited accomplice liability under
the felony-murder rule and eliminated the natural and probable consequences doctrine as
it relates to murder, to ensure that a person’s sentence is commensurate with his or her
individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-844.)
Prior to the passage of Senate Bill No. 1437, under the natural and probable
consequences doctrine, a defendant was “liable for murder if he or she aided and abetted

5
the commission of a criminal act (a target offense), and a principal in the target offense
committed murder (a nontarget offense) that, even if unintended, was a natural and
probable consequence of the target offense.” (People v. Lamoureux (2019)
42 Cal.App.5th 241, 248.) Senate Bill No. 1437 amended section 188 to state that malice
may not be imputed to a person based solely on his or her participation in a crime.
(§ 188, subd. (a)(3).) Thus, pursuant to Senate Bill No. 1437, where the felony-murder
rule is not at issue, a person must act with malice to be convicted of murder.
Senate Bill No. 1437 also added section 1170.95, which created a procedure
whereby persons convicted of murder under a felony murder or natural and probable
consequences theory may petition in the sentencing court for vacation of their convictions
and resentencing. As relevant here, defendant is eligible for relief under section 1170.95
if he could no longer be convicted of first or second degree murder due to changes to
sections 188 and 189 made by Senate Bill No. 1437. (See § 1170.95, subd. (a)(3).)
Senate Bill No. 775 was signed into law on October 5, 2021, and reaffirmed that
the burden of proof at a section 1170.95 resentencing hearing is beyond a reasonable
doubt and that a finding there is substantial evidence to support a conviction is
insufficient to meet this burden. (Sen. Bill No. 775, 2021, ch. 551, §§ 1, subd. (c), 2,
subd. (d)(3); § 1170.95, subd. (d)(3).) Senate Bill No. 775 also addressed what evidence
is admissible at the resentencing hearing, and the standards governing that admissibility.
(Stats. 2021, ch. 551, § 2, subd. (d)(3); § 1170.95, subd (d)(3).) Senate Bill No. 775 was
passed as nonurgency legislation during the regular session and became effective on
January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1); see also People v. Camba (1996)
50 Cal.App.4th 857, 862.) The statute applies to acts predating its enactment as either an
ameliorative statute under In re Estrada (1965) 63 Cal.2d 740, 748 or a clarification of
law (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243; People v. Lee
(2018) 24 Cal.App.5th 50, 57). In either case, defendant is entitled to the benefit of the
amendments to section 1170.95.

6
 Here, the trial court determined the prima facie showing was made and issued an
order to show cause, then conducted a hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c),
(d); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166.) The parties agree that at
the hearing the burden of proof was on the prosecution to prove, beyond a reasonable
doubt, that the petitioner was ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
Before the enactment of Senate Bill No. 775, there was a split of authority as to
whether the trial court was required to conduct an independent review and determine
beyond a reasonable doubt that defendant actually acted with the now required mental
state. That issue is now resolved in favor of our decision in our original opinion in this
case. There, we concluded the trial court must act as an independent fact finder and
determine whether the prosecution has proven beyond a reasonable doubt that the
petitioner is guilty of murder under the law as of January 1, 2019. This conclusion was
consistent with the Supreme Court’s decision in People v. Gentile, supra, 10 Cal.5th 830,
where our high court explained: “[S]ection 1170.95 requires the superior court to
determine on an individualized basis, after considering any new or additional evidence
offered by the parties, whether the defendant is entitled to relief.” (Id. at p. 855.) With
the enactment of Senate Bill No. 775, section 1170.95 now explicitly states the
prosecution must prove beyond a reasonable doubt that the defendant is guilty of murder
under the law as amended, and a finding of substantial evidence to support a conviction is
insufficient to meet this burden. (Sen. Bill No. 775, Stats. 2021, ch. 551, §§ 1, subd. (c),
2, subd. (d)(3); § 1170.95, subd. (d)(3).)
The Attorney General argued that despite the confusion evidenced at the hearing,
the trial court ultimately conducted an independent review and found defendant guilty of
malice murder. However, the Attorney General agreed that if we did not concur with his
reading of the record, remand was required.

7
 We do not agree that the record adequately conveys an informed decision by the
trial court that resulted in a clear conclusion that the People proved (beyond a reasonable
doubt, at the hearing) that defendant was guilty of malice murder under a direct aiding
and abetting theory. Of additional concern, and highlighting the need for a solid and
supported ruling, is that although the record is clear defendant aided and abetted the
underlying assault, it is not so clear as to defendant’s intent to aid and abet Sampson’s
murder, a theory neither briefed, pursued, instructed on, nor argued during the trial.
As we have described, the hearing on the petition began with an irrelevant finding
as to the major participant and reckless indifference components of felony murder. As
the hearing progressed, neither party articulated the correct standard, nor did the trial
court articulate the standard it ultimately applied and the support for any conclusions
made pursuant to that standard. Both parties argued theories to the trial court that they
now concede were incorrect. Defendant argued the court was limited to determining
whether the jury had found defendant guilty on a currently valid legal theory; he now
acknowledges that was wrong. The Attorney General now acknowledges that the finding
defendant was a major participant who acted with reckless indifference to human life
does not support his murder conviction under current law.
During its short ruling, the trial court twice stated that the jury would have
convicted defendant of murder based on the other instructions and without a natural and
probable consequences instruction; this does not signal independent review. These
statements also do not account for the jury’s finding of second degree murder on an open
murder charge, its finding of not true on the special circumstance, and the lack of
instruction or any mention at all of the direct aiding and abetting theory of liability for the
murder. Although the court later stated in cursory fashion that it believed the prosecution
had proven beyond a reasonable doubt defendant was guilty of murder under a direct
aiding and abetting theory, it did not explain its reasoning, and it is not clear to us that the
court was actually applying the correct standard when it made that statement.

8
 Accordingly, we must reverse the order denying the petition and remand the
matter to the trial court for a new section 1170.95, subdivision (d)(3) hearing applying the
correct standard, as described by this opinion, where the trial court may articulate and
explain the resulting findings. At the new hearing, the parties should be afforded the
opportunity to present additional evidence, should they so request, consistent with the
standards governing the admission of evidence set forth in section 1170.95, subdivision
(d)(3). In light of this open remand, we need not reach defendant’s substantial evidence
claim.
DISPOSITION
The order denying defendant’s petition is reversed. The case is remanded for the
trial court to conduct a new hearing under section 1170.95, subdivision (d)(3).

/s/
Duarte, J.

We concur:

/s/
Raye, P. J.

/s/
Krause, J.

9