Filed 3/15/22 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077943
v. (Super. Ct. No. FSB053198)
BENJAMIN HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan Foster,
Judge. Dismissed.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance from Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant Benjamin Hernandez appeals from a postjudgment order
1
denying his Penal Code section 1170.95 petition to vacate his second degree murder
conviction and obtain resentencing relief under the procedures established by Senate Bill
No. 1437. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), requesting
this court to conduct an independent review of the record. In addition, defendant has had
an opportunity to file a personal supplemental brief with this court and has not done so.
As defendant has failed to file a supplemental brief raising any issues for our review, we
shall dismiss the appeal.
II.
PROCEDURAL BACKGROUND
A jury found defendant guilty of second degree murder as an aider and abettor.
(People v. Rodriguez (Sept. 28, 2010, E046636) at p. 8 [nonpub. opn.] (Rodriguez).);
§ 187, subd. (a).) The jury also found that defendant had used a deadly weapon, a shovel,
in the commission of the crime. (§ 12022, subd. (b)(1).) The trial court sentenced
defendant to 15 years to life in prison and imposed a consecutive one-year enhancement
for the weapon use.
1
All future statutory references are to the Penal Code unless otherwise stated.
2
On September 28, 2010, this court rejected defendant’s contention that the
evidence was insufficient to show he aided and abetted a codefendant in killing the
victim, and affirmed the judgment. (See Rodriguez, supra, E046636, at pp. 2, 7-8, 12.)
On January 7, 2019, defendant filed a petition for resentencing pursuant to section
1170.95.
On April 19, 2019, the trial court granted the People’s motion to strike the
petition, finding Senate Bill No. 1437 unconstitutional. We reversed the trial court’s
order in a nonpublished opinion on June 10, 2020, and remanded the matter for further
proceedings under section 1170.95. (See People v. Hernandez (June10, 2020, E072594)
[nonpub. opn.].)
Following remand, the People filed a written informal response and opposition to
defendant’s petition. In support, the People attached our nonpublished opinion from
defendant’s direct appeal, case No. E046636, and the information. The People also
requested that the trial court take judicial notice of the decision and files and records in
the underlying trial, including the abstract of judgment and the jury instructions and
verdict forms. Defendant did not file a brief in response to the People’s informal
response and opposition.
On September 3, 2021, the trial court (the same court that heard the underlying
trial) held a prima facie hearing on the petition. Defendant was not present, but
represented by appointed counsel (the same counsel that had represented defendant at
trial) and waived defendant’s presence. After recalling the facts of the case, the trial
3
court denied the petition because defendant “made an insufficient prima facie showing”
he is entitled to relief pursuant to section 1170.95 and issued a written order on
September 30, 2021. In its written order, in pertinent part, the court explained: “This
Court finds substantial evidence was presented at trial that Benjamin Hernandez
instigated the assault, was a major participant in the assault and acted with reckless
indifference to human life, and aided and abetted in the murder of Jerry Ramirez.”
Defendant timely appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a
statement of the case, a summary of the procedural background and potential arguable
issues, and requesting this court to conduct an independent review of the record. Counsel
has raised the following issues: (1) whether defendant was found guilty under the felony
murder rule or under the natural and probable consequences doctrine, and, if not, whether
section 1170.95 applies to defendant; (2) whether the trial court prejudicially erred by
conducting the prima facie hearing without defendant’s presence and by failing to obtain
a valid waiver of his right to be present at that hearing; and (3) whether the court violated
section 1170.95, subdivision (c) by engaging in factfinding involving the weighing of
evidence at the prima facie hearing.
4
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Our high court is currently considering whether an appellate court must conduct an
independent review of the record when counsel files a Wende brief after the trial court
denies a petition for resentencing under section 1170.95. (People v. Delgadillo, review
granted Feb. 17, 2021, S266305; see Cal. Rules of Court, rule 8.512(d)(2).) Recent Court
of Appeal cases have consistently held that we are not required to conduct such a review
and may dismiss an appeal as abandoned if the petitioner does not file a supplemental
brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review
granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,
review granted Mar. 17, 2021, S266853.) Some cases have explained that we have
discretion to review the record independently for arguable issues and should do so in the
interest of justice, either where an initial review does not show the defendant is obviously
ineligible for relief (such as when the defendant was convicted on a theory he was the
actual killer) or as a routine matter. (See People v. Gallo (2020) 57 Cal.App.5th 594,
598-599 (but see dis. opn. of Menetrez, J.); People v. Flores (2020) 54 Cal.App.5th 266,
269-274; People v. Allison (2020) 55 Cal.App.5th 449, 456.)
In this case, we conclude defendant is not entitled to Wende review of from the
order denying his petition for resentencing relief under section 1170.95. Review pursuant
to Wende, or its federal constitutional counterpart Anders, is required only in the first
5
appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551,
555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano
(2012) 211 Cal.App.4th 496, 500-501.) The appeal before us, “although originating in a
criminal context, is not a first appeal of right from a criminal prosecution, because it is
not an appeal from the judgment of conviction.” (Serrano, supra, at p. 501.) Because
defendant has not personally filed a supplemental brief, we will dismiss his appeal as
abandoned.
IV.
DISPOSITION
The appeal is dismissed as abandoned.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
RAPHAEL
J.
6