Filed 5/23/22 P. v. Hernandez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B307077
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. YA088222
v.
LEOBARDO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Edmund Wilcox Clarke, Jr., Judge.
Reversed and remanded with directions.
Patricia A. Scott, 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, Daniel C. Chang and Ryan M. Smith, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Petitioner Leobardo Hernandez appeals from the denial of
his resentencing petition under Penal Code1 section 1170.95.
Hernandez contends, and the People agree, that he made a prima
facie showing of eligibility for relief and, as a result, the court
should have issued an order to show cause and held an
evidentiary hearing. We agree with the parties and, therefore,
reverse the order denying Hernandez’s resentencing petition and
remand the matter for further proceedings under section 1170.95.
BACKGROUND2
In 2015, Hernandez was tried by a jury for murder, along
with several gang and firearm enhancements. At trial, no
evidence was presented that Hernandez was the shooter; rather,
the People relied entirely on aiding and abetting principles in
pursuing Hernandez’s conviction.
The trial court instructed the jury on two forms of aiding
and abetting liability under which it could convict Hernandez of
first degree murder: a direct aiding and abetting theory and a
natural and probable consequences theory. Under the direct
aiding and abetting theory, the court instructed the jury it could
convict Hernandez of first degree murder if it found: (1) the
perpetrator committed the crime; (2) the defendant knew that the
perpetrator intended to commit the crime; (3) before or during the
commission of the crime, the defendant intended to aid and abet
the perpetrator in committing the crime; and (4) the defendant’s
1 All undesignated statutory references are to the Penal Code.
2Hernandez states that he does not dispute the facts set forth in this
court’s opinion in his direct appeal, People v. Hernandez (Oct. 4, 2016,
B266206) [nonpub. opn.] (Hernandez). Our factual and procedural
summary is taken from Hernandez and the appellate record.
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words or conduct did in fact aid and abet the perpetrator’s
commission of the crime. The court further instructed that
“[s]omeone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends
to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.”
The court also instructed the jury that it could convict
Hernandez of first degree murder under a natural and probable
consequences theory if it found: (1) the defendant is guilty of
assault with a firearm; (2) during the commission of the crime of
assault with a firearm a coparticipant in that assault with a
firearm committed the crime of murder; and (3) under all of the
circumstances, a reasonable person in the defendant’s position
would have known that the commission of the murder was a
natural and probable consequence of the commission of the
assault with a firearm. The court further instructed that
“[a] natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual
intervenes. In deciding whether a consequence is natural and
probable, consider all of the circumstances established by the
evidence. If the murder was committed for a reason independent
of the common plan to commit the assault with a firearm, then
the commission of murder was not a natural and probable
consequence of assault with a firearm.” The court also instructed
on the elements of assault with a firearm.
During closing argument, the prosecutor did not argue
Hernandez was the direct perpetrator of the murder. Rather, she
argued only that he was guilty of murdering the victim as an
aider and abettor. Specifically, she told the jury it could convict
Hernandez under either of the two theories of aider and abettor
liability the court instructed on. While the prosecutor relied
primarily on a direct aiding and abetting theory, she told the jury
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that it did not need to go so far as finding Hernandez intended to
aid and abet a murder, so long as it found he intended to aid and
abet an assault with a firearm, the natural and probable
consequence of which was murder.
The jury found Hernandez guilty of first degree murder,
and it found true the gang enhancement allegation and the
allegation that a principal personally discharged a firearm. The
court sentenced Hernandez to a total term of 50 years to life in
prison.
In 2016, we reversed Hernandez’s conviction, concluding
the trial court erred when it instructed the jury that it could
convict Hernandez of first degree premeditated murder under a
natural and probable consequences theory. Specifically, the
court’s instruction erroneously permitted the jury to find
Hernandez guilty of first degree murder even if it found he did
not act willfully, deliberately, and with premeditation. Because
nothing in the record established beyond a reasonable doubt that
the jury relied on a legally valid theory when it convicted
Hernandez, we remanded the matter to allow the People to
accept a reduction of his conviction to second degree murder or to
retry him for first degree murder under a legally valid theory of
culpability. Hernandez’s conviction was later reduced to second
degree murder, and he was resentenced to a total term of 40
years to life in prison.
In March 2019, Hernandez, representing himself, filed a
resentencing petition under section 1170.95, in which he
requested counsel be appointed to represent him. After the court
appointed counsel for Hernandez, he filed a brief in support of his
petition, to which he attached excerpts of the reporter’s transcript
from his trial, including the court’s instructions on aiding and
abetting liability and portions of the prosecutor’s closing
argument discussing the natural and probable consequences
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doctrine. Hernandez later filed a supplemental brief in support of
his petition.
The People opposed Hernandez’s resentencing petition.
They argued the court should deny the petition because Senate
Bill No. 1437 (S.B. 1437) (Stats. 2018, ch. 1015) is
unconstitutional and, in any event, Hernandez could not make a
prima facie showing that he could not be convicted of murder
under current law. The People attached several documents to
their opposition, including a copy of our prior opinion in
Hernandez, a copy of the trial court’s minute order reciting the
verdict in Hernandez’s trial, a portion of the reporter’s transcript
from that trial, and copies of transcripts from Hernandez’s
interviews and conversations with uniformed and undercover
police officers while he was in pretrial custody.
Hernandez filed a reply and several subsequent
supplemental briefs in support of his petition.
On July 30, 2020, the court held a hearing on Hernandez’s
resentencing petition. The court denied the petition without
issuing an order to show cause, finding Hernandez failed to make
a prima facie showing that he was entitled to relief under section
1170.95. The court relied on our prior opinion in Hernandez,
explaining that because we noted that there was evidence from
which a jury could have convicted Hernandez of first degree
murder under a valid theory and gave the People the option to
accept a reduction of Hernandez’s conviction to second degree
murder or to retry him for first degree murder, Hernandez was
necessarily ineligible for relief under section 1170.95. The court
noted, however, “I believe if the Legislature had put in the
statute an escape clause—for lack of a better term—that said,
‘when the trial court is unable to decide whether the person was
or was not convicted under a now permissible theory, the
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discretion [of the court] to grant a new trial is given to the trial
court’—and I would do it.”3
Hernandez appeals.
DISCUSSION
S.B. 1437 amended the felony murder rule and natural and
probable consequences doctrine to ensure a “person’s culpability
for murder [is] premised upon that person’s own actions and
subjective mens rea.” (Stats. 2018, ch. 1015, § 1(g).) Relevant
here, the bill limited accomplice liability for murder, providing
that a person may be convicted of murder only if: (1) he was the
actual killer; or (2) with the intent to kill, he aided and abetted
the actual killer’s commission of murder; or (3) he acted as a
“major participant” in a felony listed in section 189 and acted
with “reckless indifference to human life.” (§§ 188, subd. (a)(3) &
189, subd. (e).)
S.B. 1437 also abolished second degree felony murder.
(Stats. 2018, ch. 1015, § 2, amending § 188(e)(3).) Thus, the felony
murder doctrine now applies only to those felonies listed in
section 189, subdivision (a), and to accomplices who meet the
requirements in section 189, subdivision (e).
In addition to changing the law of murder prospectively,
S.B. 1437, gave people who had been convicted of murder under
one of the now-invalid theories the opportunity to petition for
resentencing under section 1170.95. (Stats. 2018, ch. 1015, § 4.)
3After the court denied Hernandez’s petition, Senate Bill No. 775 (S.B.
775) (Stats. 2021, ch. 551) amended section 1170.95 to clarify that a
defendant may petition for relief if, among other things, he “could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§
1170.95, subd. (a)(3), italics added.)
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As amended by S.B. 775, section 1170.95 now provides that a
person convicted of, among other crimes, murder under a natural
and probable consequences theory may file a petition with the
court that sentenced the petitioner to have his murder conviction
vacated and to be resentenced on any remaining counts if (1) the
complaint or information filed against the petitioner “allowed the
prosecution to proceed under a theory of felony murder”; (2) the
petitioner was convicted of murder “following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could be
convicted” of murder; and (3) the “petitioner could not presently
be convicted” of murder “because of changes to Section 188 or
189.” (§ 1170.95, subd. (a).)
If the petitioner files a facially sufficient petition, the court
must appoint counsel. (§ 1170.95, subd. (b)(3).) After allowing the
parties to file briefs, the court must hold a hearing to “determine
whether the petitioner has made a prima facie showing that [he]
is entitled to relief.” (Id. at subd. (c).)
In People v. Lewis (2021) 11 Cal.5th 952, the California
Supreme Court clarified the scope of the trial court’s inquiry at
the prima facie stage under section 1170.95, subdivision (c). As
the Supreme Court explained, the inquiry “is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings,
‘ “the court takes [the] petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citations.]” (Lewis, at p. 971.) While the court may
review the record of conviction, it “should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] … [T]he ‘prima facie bar was intentionally
and correctly set very low.’ ” (Id. at p. 972.) In other words, a
denial at this stage “ ‘is appropriate only if the record of
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conviction demonstrates that “the petitioner is ineligible for relief
as a matter of law.” ’ ” (People v. Ervin (2021) 72 Cal.App.5th 90,
101 (Ervin).)
If the petitioner makes a prima facie showing that he is
entitled to relief, the court must “issue an order to show cause”
and “hold a hearing to determine whether to vacate the murder
… conviction and to recall the sentence.” (§ 1170.95, subds. (c) &
(d)(1).) “At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder … under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019. The
admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in
any prior appellate opinion. … The prosecutor and the petitioner
may also offer new or additional evidence to meet their respective
burdens. A finding that there is substantial evidence to support a
conviction for murder … is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).)
“If the prosecution fails to sustain its burden of proof, the
prior conviction, and any allegations and enhancements attached
to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3).)
The petitioner’s “conviction shall be redesignated as the target
offense or underlying felony for resentencing purposes if the
petitioner is entitled to relief pursuant to this section, murder or
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attempted murder was charged generically, and the target
offense was not charged.” (Id. at subd. (e).)
Whether a petitioner has made a prima facie showing of
eligibility for relief under section 1170.95 is a “ ‘purely legal
conclusion, which we review de novo.’ ” (Ervin, supra, 72
Cal.App.5th at p. 101.) The parties agree, and so do we, that
Hernandez made a prima facie showing that he is eligible for
relief under section 1170.95.
In his resentencing petition, Hernandez alleged that a
complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine, that he was convicted of first or second degree murder
under one of those theories, and that he could not now be
convicted of first or second degree murder because of changes
made to sections 188 and 189 by S.B. 1437. Hernandez’s petition
is, therefore, facially sufficient under section 1170.95. (§ 1170.95,
subds. (a) & (b).)
Relying on our prior opinion, the court denied Hernandez’s
petition because it concluded there was evidence from which a
jury might have convicted Hernandez of murder under a
currently valid theory—i.e., direct aiding and abetting
principles—thereby rendering him ineligible for relief under
section 1170.95. This was error. While we noted in Hernandez
that there “was evidence from which the jury could have found
Hernandez guilty of first degree premeditated murder under
direct aiding and abetting principles,” we explained that the
court’s error in instructing on the natural and probable
consequences doctrine during Hernandez’s trial was prejudicial
because nothing in the record established “that the jury relied on
a direct aiding and abetting theory, as opposed to the natural and
probable consequences theory, when it reached its verdict.” Put
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another way, nothing in the record of conviction establishes, as a
matter of law, that Hernandez was convicted of murder under a
currently valid theory. (See Ervin, supra, 72 Cal.App.5th at p.
101.)
Accordingly, we reverse the order denying Hernandez’s
resentencing petition. On remand, the court shall issue an order
to show cause and hold an evidentiary hearing under section
1170.95, subdivision (d), at which the People will bear the burden
of proving beyond a reasonable doubt that Hernandez is ineligible
for relief. (§ 1170.95, subd. (d)(3).)
DISPOSITION
The order denying Hernandez’s resentencing petition is
reversed. The matter is remanded to the trial court with
directions to issue an order to show cause and hold an
evidentiary hearing under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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