Filed 10/18/22 P. v. Hernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B313884
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. PA040557-07)
v.
ALFREDO HERNANDEZ,
Defendant and
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, George G. Lomeli, Judge. Reversed and
remanded with directions.
Edward H. Schulman, 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, Senior
Assistant Attorney General, Charles S. Lee and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________
Alfredo Hernandez was convicted following a jury trial in
2003 of first degree murder with a special-circumstance finding
(lying in wait) and conspiracy to commit murder. The superior
court denied his petition for resentencing pursuant to Penal Code
former section 1170.95 (now section 1172.6)1 in July 2021 without
an evidentiary hearing, ruling the jury’s findings necessarily
established he was ineligible for relief as a matter of law.
The superior court was correct that a properly instructed
jury’s lying-in-wait and conspiracy findings would mean
Hernandez, even if not the actual killer, had acted with the
intent to kill when assisting or conspiring with the individual(s)
who committed the murder. Here, however, those instructions
were flawed and determining whether the errors were harmless
would require an evaluation of the evidence at trial—factfinding
not permitted under section 1172.6 at the prima facie phase of
the proceedings. Accordingly, we reverse the order denying
Hernandez’s petition and remand with directions to issue an
order to show cause and to conduct further proceedings in
accordance with section 1172.6, subdivision (d).
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6 with no change in text. (Stats. 2022,
ch. 58, § 10.)
Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Hernandez’s Conviction and Appeal
Victor Flores, a member of the Brown Familia criminal
street gang, was found dead in a concrete wash area in the Santa
Clarita Valley on January 15, 2002. As sheriff’s deputies
removed the body, a number of young Latinx men watched from a
nearby overpass.
In the early morning of the following day, sheriff’s deputies
discovered the body of Byron Benito, a member of Mexicanos
Malditos Sureños 13 (MMS), a rival gang. Benito had suffered
multiple stab wounds and blunt force trauma. The coroner
determined three of the stab wounds to Benito’s chest were the
cause of death.
During the evening between the discovery of the
two bodies, a group of young Latinx men met in an apartment
where members of Brown Familia frequently gathered. Many of
the men present, including Hernandez, were members of the
Brown Familia gang. Their conversation concerned Flores’s
death. Benito was identified as a possible killer.
At some point during the evening the men met in a
bedroom with the door closed. According to one of the meeting
participants who testified at trial following a plea agreement,
several of the men, including Hernandez, proposed finding Benito
and stabbing him in retaliation for the murder of Flores. The
final version of the plan was for an individual who was not a
member of the gang to lure Benito to an isolated location to
smoke marijuana. Once there, Benito would be ambushed by
waiting Brown Familia gang members. Hernandez suggested
they use the parking lot of a strip mall off Soledad Canyon Road
in Santa Clarita.
3
The attack went according to plan. Benito arrived at the
parking lot in a car with the decoy where he was assaulted by
waiting gang members. After initially resisting, Benito
attempted to flee; but someone tripped him. As he lay on the
ground, the group stabbed, beat and kicked Benito for 10 to
15 minutes before leaving the area and returning to the
apartment where they had met earlier.
Hernandez and 15 others were charged in an amended
information filed July 7, 2003 with first degree murder (§ 187,
subd. (a)) and conspiracy to commit murder (§ 182, subd. (a)(1))
with the special-circumstance allegation the murder had been
committed by lying in wait (§ 190.2, subd. (a)(15)) and the further
allegation both offenses had been committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)). At Hernandez’s joint
trial with four codefendants2 the prosecutor argued, and the trial
court instructed, on the natural and probable consequences
doctrine.
With respect to the murder charge, the court instructed
pursuant to CALJIC No. 3.02 (7th ed. 2003), “One who aids and
abets another in the commission of a crime or crimes is not only
guilty of those crimes, but is also guilty of any other crime
committed by a principal which is a natural and probable
consequence of the crimes originally aided and abetted. [¶] In
order to find a defendant guilty of the crime of murder, as
charged in Count 1, you must be satisfied beyond a reasonable
doubt that: [¶] 1. The crime or crimes of assault, assault with a
deadly weapon or by means of force likely to produce great bodily
2 Five other codefendants pleaded guilty to various charges;
the remaining codefendants were found not guilty at a
subsequent trial.
4
injury, or conspiracy to commit assault or assault with a deadly
weapon or by means of force likely to produce great bodily injury
were committed; [¶] 2. That the defendant aided and abetted
those crimes; [¶] 3. That a co-principal in that crime committed
the crime of murder; and [¶] 4. The crime of murder was a
natural and probable consequence of the commission of the
crimes of assault, assault with a deadly weapon or by means of
force likely to produce great bodily injury, or conspiracy to
commit assault or assault with a deadly weapon or by means of
force likely to produce great bodily injury.”
The court also instructed pursuant to CALJIC No. 6.11
(7th ed. 2003), “Each member of a criminal conspiracy is liable for
each act and is bound by each declaration of every other member
of the conspiracy if that act or declaration is in furtherance of the
object of the conspiracy. [¶] . . . [¶] A member of a conspiracy is
not only guilty of the particular crime that to his or her
knowledge his or her confederates agreed to and did commit, but
is also liable for the natural and probable consequences of any
crime or act of a co-conspirator to further the object of the
conspiracy, even though that crime or act was not intended as a
part of the agreed upon objective . . . . [¶] You must determine
whether the defendant is guilty as a member of a conspiracy to
commit the originally agreed upon crime or crimes, and, if so,
whether the crime alleged in Count 1 was perpetrated by a co-
conspirator in furtherance of that conspiracy and was a natural
and probable consequence of the agreed upon criminal objective
of that conspiracy.”
Hernandez and his codefendants were found guilty of both
charges with true findings on the special-circumstance and gang
5
allegations. Hernandez was sentenced to a state prison term of
life without parole.
We affirmed Hernandez’s judgment on appeal. (People v.
Romero (Oct. 3, 2006, B170885) [nonpub. opn.].) Among the
arguments advanced by two of Hernandez’s codefendants, joined
by the other two codefendants but not Hernandez, was that
CALJIC No. 8.69 as given permitted the jury to find the
defendants guilty of conspiracy to commit murder without finding
that each of them (as opposed to at least two of the multiple
coconspirators) had the specific intent to kill. We rejected that
argument. We agreed the language of CALJIC No. 8.69 (7th ed.
2003) at issue—that “[a]t least two of the persons to the
agreement harbored express malice aforethought, namely a
specific intent to kill unlawfully another human being”—was
intended to be used only in cases where there was a feigned
accomplice and did not “clearly or completely describe the specific
intent element for conspiracy to commit murder in this case.”
Nonetheless, reviewing the erroneous language in the context of
the entire instruction, the other instructions given and the
record, we concluded there was not a reasonable likelihood the
jury misunderstood the requirement that, to convict a particular
defendant of conspiracy to commit murder, it had to find that
defendant harbored both the specific intent to agree and the
specific intent to kill.
2. Hernandez’s Petition for Resentencing
On October 2, 2020 Hernandez, representing himself, filed
a petition for resentencing pursuant to former section 1170.95,
checking boxes on the form petition establishing his eligibility for
resentencing relief, including the boxes stating he had been
convicted of murder under the felony-murder rule or the natural
6
and probable consequences doctrine and could not now be
convicted of first or second degree murder because of changes
made to sections 188 and 189 by Senate Bill No. 1437
(Stats. 2018, ch. 1015) (Senate Bill 1437). Counsel was appointed
to represent Hernandez. The prosecutor filed a response to
Hernandez’s petition and to a supplemental brief he submitted,
and appointed counsel filed a reply on behalf of Hernandez.
At a hearing on July 22, 2021, after argument of counsel,
the superior court ruled Hernandez had failed to make a prima
facie case for relief and was ineligible for resentencing. The court
explained on the record that, to find true the lying-in-wait special
circumstance, “by implication [the jury] made a determination
that the petitioner had an intent to kill.” “Similarly,” the court
continued, “the jury, in convicting the defendant, or petitioner, of
conspiracy to commit murder, it was required for them to find
that he had possessed and/or harbored in him a specific intent to
kill. CALJIC 8.69. As such, he could still be convicted of murder
based on the overall record of conviction in spite of the
amendments made by Senate Bill 1437.”
Hernandez filed a timely notice of appeal.
DISCUSSION
1. Section 1172.6 (Former Section 1170.95)
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708;
People v. Lewis (2021) 11 Cal.5th 952, 957.) It also authorized,
7
through former section 1170.95, an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not now be convicted of murder because of Senate
Bill 1437’s changes to the definitions of the crime. (See Strong, at
p. 708; Lewis, at p. 957; Gentile, at p. 843.) As amended by
Senate Bill No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775),
effective January 1, 2022, these ameliorative changes to the law
now expressly apply to attempted murder and voluntary
manslaughter.
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1172.6 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes 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. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a
credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted.)
When a petitioner has carried the burden of making the
requisite prima facie showing he or she falls within the
8
provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing the court may consider
evidence “previously admitted at any prior hearing or trial that is
admissible under current law,” including witness testimony.
(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.)
“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 or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019. . . . A finding that there is substantial evidence to support
a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
2. The Superior Court Erred in Ruling Hernandez Is
Ineligible as a Matter of Law for Resentencing Relief
To reiterate, Hernandez’s jury was instructed he could be
convicted of Benito’s murder if he assisted in the assault on
Benito or conspired with his confederates to commit the assault
and Benito’s murder by one of the other gang members was a
natural and probable consequence of Hernandez’s participation in
that crime. Even though the jury was also instructed pursuant to
CALJIC Nos. 3.00 and 3.01 (7th ed. 2003) that Hernandez could
be found guilty of murder as a direct aider and abettor of the
actual killer, acting with knowledge of the perpetrator’s intent to
kill Benito, the instructions on the natural and probable
9
consequences doctrine, without more, would entitle Hernandez to
an order to show cause and an evidentiary hearing under
section 1172.6 to determine whether he remains guilty of murder
under section 188 as amended by Senate Bill 1437—that is, that
he acted with malice aforethought and malice was not imputed to
him based solely in his participation in the aggravated assault on
Benito (§ 188, subd. (a)(3)).
The superior court, which observed at the July 22, 2021
hearing the evidence could support a finding that Hernandez was
one of Benito’s actual killers in the group attack,3 concluded there
was more—that by virtue of its lying-in-wait and murder
conspiracy findings the jury necessarily determined Hernandez
had acted with express malice when aiding in the murder of
Benito. Both of those jury findings, however, were based on
flawed instructions. Neither supports the conclusion Hernandez
is ineligible for resentencing relief as a matter of law.
3 The court stated, “Based upon the totality of the evidence
presented, it is clear that the petitioner, as reflected by the
overall trial evidence, as well as the court of appeal decision, that
the petitioner, by his conduct related to the victim’s murder, did
not only possess an intent to kill at the time that he aided and
abetted his fellow gang members in the murder, but, further, that
he actually inflicted blunt force trauma with a crowbar. In fact,
it might be argued, pursuant to the coroner’s testimony, that the
petitioner was one of the actual killers of the underlying victim
when he participated in the group attack that resulted in the
death in question.” The court, however, made it clear it was
basing its decision to deny the petition on the jury’s true finding
on the special circumstance and conspiracy charge, not its own
evaluation of the evidence at trial.
10
a. Lying in wait as a special circumstance
Section 190.2, subdivision (a)(15), defines lying in wait as a
special circumstance, “The defendant intentionally killed the
victim by means of lying in wait.” Other than with respect to the
felony-murder special-circumstance finding, which is separately
defined in section 190.2, subdivision (d), section 190.2,
subdivision (c), provides a special-circumstance finding is only
authorized for a person not the actual killer “who, with the intent
to kill, aids, abets, counsels, induces, solicits, requests, or assists
any actor in the commission of murder in the first degree” as to
whom one or more special circumstances have been found true.
Thus, a properly instructed jury finding pursuant to
section 190.2, subdivisions (a)(15) and (c), would mean, as the
superior court ruled, the defendant necessarily acted with
express malice.
CALJIC Nos. 8.80.1 (Post June 5, 1990 Special
Circumstances—Introductory) and 8.81.15.1 (Special
Circumstances—Murder by Lying in Wait) (7th ed. 2003) specify
the required elements for a lying-in-wait special-circumstance
finding for an aider and abettor. But as given at Hernandez’s
trial, the instructions omitted the essential element of intent.
The court first instructed pursuant to the initial paragraphs of
CALJIC 8.80.1, “If you find a defendant in this case guilty of
murder of the first degree, you must then determine if the
following special circumstance is true or not true: The defendant
intentionally killed the victim by means of lying in wait in
violation of Penal Code section 190.2(a)(15).” It failed to included
in its modified version of the instruction, as provided in the
fourth paragraph of the CALJIC instruction, “If you find that a
defendant was not the actual killer of a human being, or if you
11
are unable to decide whether the defendant was the actual killer
or an aider and abettor or co-conspirator, you cannot find the
special circumstance to be true as to that defendant unless you
are satisfied beyond a reasonable doubt that such defendant with
the intent to kill aided, abetted, counseled, commanded, induced,
solicited, requested or assisted any actor in the commission of the
murder in the first degree.”
The superior court in denying Hernandez’s petition based
on the jury’s lying-in-wait finding partially recognized the
significance of that crucial omission, ruling only that the jury “by
implication” determined Hernandez had an intent to kill when it
found the special-circumstance allegation true. The jury may
have reached that decision, but the record does not confirm that
inference as a matter of law. As discussed, the jury could have
found Hernandez guilty of first degree murder as the natural and
probable consequence of aiding the aggravated assault on Benito.
The jury was also instructed an aider and abettor is a principal in
that crime and, regardless of the extent of participation, is
equally guilty as a direct perpetrator. Thus, without the omitted
language from CALJIC No. 8.80.1 regarding an aider and
abettor’s intent to kill, the jury could have found true the special-
circumstance allegation as to Hernandez on the mistaken belief
that, as an aider and abettor of aggravated assault, he was
equally guilty as the direct perpetrator who had committed first
degree lying-in-wait murder. Based on this record, the jury’s
special-circumstance finding does not defeat Hernandez’s prima
facie case for relief.
b. Conspiracy to commit murder
The trial court instructed Hernandez’s jury on the charge of
conspiracy to commit murder using a variant of CALJIC No. 8.69
12
(7th ed. 2003). The initial wording of CALJIC No. 8.69 reflects
the twin specific intent requirements for conspiracy to commit
murder, “A conspiracy to commit murder is an agreement entered
into between two or more persons with the specific intent to agree
to commit the crime of murder and with the further specific
intent to commit that murder, followed by an overt act . . . .” (See
People v. Swain (1996) 12 Cal.4th 593, 600 [“‘Conspiracy is a
“specific intent” crime. . . . The specific intent required divides
logically into two elements: (a) the intent to agree, or conspire,
and (b) the intent to commit the offense which is the object of the
conspiracy. . . . To sustain a conviction for conspiracy to commit a
particular offense, the prosecution must show not only that the
conspirators intended to agree but also that they intended to
commit the elements of that offense,’” italics omitted]; see also
People v. Beck and Cruz (2019) 8 Cal.5th 548, 641 [“‘all
conspiracy to commit murder is necessarily conspiracy to commit
premeditated and deliberated first degree murder’”].)
As we explained in our opinion affirming the convictions of
Hernandez and his codefendants on direct appeal, as read to the
jury the trial court’s instruction was flawed, referring to “at least
two of the persons,” rather than “each of the persons” in defining
the conspiracy’s necessary specific intent elements. The court
instructed, “In order to prove this crime, each of the following
elements must be proved: [¶] 1. Two or more persons entered into
an agreement to kill unlawfully another human being; [¶] 2. At
least two of the persons specifically intended to enter into an
agreement with one or more other persons for that purpose; [¶]
3. At least two of the persons to the agreement harbored express
malice aforethought, namely a specific intent to kill unlawfully
another human being; and [¶] 4. An overt act was committed in
13
this state by one or more of the persons who agreed and intended
to commit murder.”
Responding to Hernandez’s codefendants’ argument that
the court committed prejudicial error by failing to include the
requirement that the jury must find that each of them, not just
any two of the coconspirators, intended to kill Benito, we
acknowledged the reference to “at least two” did not properly
define the specific intent element necessary to find each of the
defendants guilty of conspiracy to commit murder, and stated, “It
would have been better if the court had excluded this language
from the instruction.” (People v. Romero, supra, B170885, at
p. *142.)4 Nonetheless, our opinion concluded reversal of the
conviction was not required because, viewing the conspiracy
instructions in their entirety, as well as the other instructions
given by the court and the evidence in the record, there was no
reasonable likelihood the jury misunderstood the instruction.
(Id. at p.*143.)
A decade after our decision affirming Hernandez’s and his
codefendants’ convictions for conspiracy to commit murder, the
Supreme Court in People v. Garton (2018) 4 Cal.5th 485 held that
asking the jury to find specific intent for “at least two”
4 The unheeded Use Notes to CALJIC No. 8.69 (7th ed.
2003), at page 388, state, “The alternative bracketed wording has
been provided in elements 2, 3 and 4 to accommodate the
situation where there is a feigned accomplice. ‘The “feigned
participation of a false coconspirator or government agent in a
conspiracy of more than two people does not negate criminal
liability for conspiracy, as long as there are at least two other
coconspirators who actually agree to the commission of the
subject crime, specifically intend that the crime be committed,
and themselves commit at least one overt act.”’”
14
coconspirators in a conspiracy with more than two members,
none of whom was feigning involvement, was instructional error
because it “could potentially lead a jury to find an individual
conspirator guilty without finding that he or she possessed a
specific intent to agree or to kill.” (Id. at p. 516.) Eschewing the
approach utilized by this court—evaluating whether there was a
reasonable likelihood the jury misunderstood the instruction—
the Court held the error harmless under either a Chapman or
Watson standard because the jury had found true special-
circumstance allegations (multiple murders and murder for
financial gain) after being properly instructed with CALJIC
No. 8.80.1 that an aider and abettor had to have the specific
intent to kill when assisting the direct perpetrator in the
commission of first degree murder—the element missing from the
lying-in-wait special-circumstance instruction given here. (Id. at
pp. 516-517.) The Court also reviewed the prosecutor’s theory of
the case and the evidence in the record to conclude the jury’s
special-circumstance findings necessarily subsumed a finding
that the defendant had entered into an agreement to kill the
victims. (Id. at p. 519)
Because, as explained, the jury’s true finding here on the
lying-in-wait special-circumstance allegation was not necessarily
based on a finding of express malice, and a review of the record
as done by the Supreme Court in Garton is not proper at the
prima facie stage of a section 1172.6 resentencing proceeding,
Hernandez’s conviction for conspiracy to commit murder does not
establish he is ineligible for resentencing as a matter of law.5
5 In light of the Supreme Court’s 2018 decision in People v.
Garton, supra, 4 Cal.5th 485, clarifying the proper analysis for
evaluating prejudice resulting from CALJIC No. 8.69
15
3. Hernandez Has No Constitutional Right To a Jury
Determination of His Petition for Resentencing
In addition to contending the superior court erred in
finding he failed to establish a prima facie case for resentencing
relief, Hernandez argues, in light of the amendments effected by
Senate Bills 1437 and 775, the hearing to determine whether he
remains guilty of murder under current sections 188 and 189
should be before a jury with all related rights afforded defendants
at a criminal trial. It would violate the constitutional guarantee
of equal protection, Hernandez asserts, not to grant
section 1172.6 petitioners the same rights as provided when
adjudicating criminal misconduct in the first instance.
Hernandez’s equal protection argument, purportedly based
on principles of “fundamental fairness,” is without merit. As
Hernandez at least nominally recognizes, the first step in equal
protection analysis is to determine whether the state has adopted
a classification that affects two or more similarly situated groups
instructional error, as well as the different question presented on
direct appeal (whether there was a reasonable likelihood the jury
misunderstood the instruction, rather than whether the
instruction and resulting verdict demonstrate a finding of express
malice as a matter of law), we reject the Attorney General’s
contention our 2006 decision constitutes law of the case,
precluding Hernandez from challenging the superior court’s
ruling his conviction for conspiracy to commit murder necessarily
meant the jury found he had the specific intent to commit
murder. (See People v. Stanley (1995) 10 Cal.4th 764, 787 [law of
the case doctrine will not be adhered to where the “controlling
rules of law have been altered or clarified by a decision
intervening between the first and second appellate
determinations”]; People v. Iraheta (2017) 14 Cal.App.5th 1228,
1244 [same].)
16
in an unequal manner. (People v. Foster (2019) 7 Cal.5th 1202,
1211-1212; People v. Barrett (2012) 54 Cal.4th 1081, 1107; Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253.) It defies credulity
to assert defendants standing trial for murder in the first
instance and individuals properly convicted of murder under
then-existing law, like Hernandez, who are now seeking
retroactive relief pursuant to Senate Bills 1437 and 775, are
similarly situated. (See People v. Floyd (2003) 31 Cal.4th 179,
191 [“‘[t]he 14th Amendment does not forbid statutes and
statutory changes to have a beginning, and thus to discriminate
between the rights of an earlier and later time’”]; cf. People v.
Mancilla (2021) 67 Cal.App.5th 854, 869-870 [individuals
convicted of murder under the natural and probable
consequences doctrine and those convicted of provocative act
murder are not similarly situated for purposes of resentencing
relief under Senate Bill 1437]; see also People v. Strong, supra,
13 Cal.5th at p. 718 [Petitioners seeking resentencing under
section 1172.6 with pre-Banks/Clark felony-murder special-
circumstance findings and those with post-Banks/Clark findings
are not similarly situated. “One [group] has been determined,
beyond a reasonable doubt, to have acted as a major participant
with reckless indifference to human life as those terms are now
understood under Banks and Clark, and the other has never been
the subject of such a determination”].)
The claim of an equal protection violation fails at the
threshold without any need to address the Legislature’s valid
reasons for treating differently individuals previously convicted
of murder seeking resentencing and those first facing trial for the
crime.
17
DISPOSITION
The postjudgment order denying Hernandez’s petition for
resentencing is reversed. On remand the superior court is to
issue an order to show cause and to conduct further proceedings
in accordance with section 1172.6, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
18