Opinion
B309075
07-19-2021
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO HERNANDEZ, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA312691, Richard S. Kemalyan, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EGERTON, J.
BACKGROUND
In 2008 a jury convicted defendant and appellant Armando Hernandez of the second degree murder of 16-year-old Giovanny Mancia. The jury found true allegations that, in the commission of the crime, a principal personally and intentionally used and discharged a firearm causing Mancia's death and that Hernandez acted to benefit a criminal street gang. The trial court sentenced Hernandez to 40 years to life in the state prison. In 2011, we affirmed Hernandez's conviction. (People v. Hernandez (Apr. 25, 2011, B215707) [nonpub. opn.] (Hernandez I).)
According to our opinion in Hernandez's direct appeal, around 5:30 p.m. on April 5, 2006, Hernandez drove his gold Toyota Camry down 49th Street in Los Angeles. Two fellow members of Hernandez's gang, known as Rascal and Flaco, were passengers in the car. Mancia was sitting in a parked car with two other people. When Rascal saw them, he said, “What? Who's those fools?” Rascal and Flaco got out of the car. Flaco shot Mancia in the chest, killing him. Hernandez drove the two to Rascal's house and then went home. (Hernandez I.)
Hernandez takes his statement of facts in his appellate brief from Hernandez I. Hernandez states he does so “to provide background and context” for his appeal “but not to establish the truth of any facts set forth in the opinion.” As the truth of the facts of the crime recited in Hernandez I are not necessary for our resolution of this appeal, we also summarize them only for the basis of Hernandez's conviction. (See People v. Woodell (1998) 17 Cal.4th 448, 459-460.)
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) took effect, Hernandez filed on April 8, 2019 a petition for resentencing under Penal Code section 1170.95. On a downloadable form, Hernandez checked boxes stating, “A[n]... information... was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”; “[a]t trial, I was convicted of... 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine”; “I could not now be convicted of... 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019”; and “I was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and I could not now be convicted of murder because of changes to Penal Code § 188, effective January 1, 2019.” Hernandez also asked the court to appoint counsel for him.
References to statutes are to the Penal Code.
The trial court appointed counsel for Hernandez.
On June 10, 2019, the district attorney filed a response to Hernandez's petition. Most of the prosecution's response was devoted to its contention that Senate Bill 1437 was unconstitutional. The prosecutor also argued Hernandez was not entitled to relief under section 1170.95 because he was not convicted under either the felony murder rule or the natural and probable consequences doctrine. Instead, he “was a direct aider and abettor to the murder who acted with the intent to assist his fellow gang member in the murder of a perceived enemy.”
On October 29, 2019, Hernandez's counsel filed a reply on his behalf. Counsel devoted most of her reply to the constitutionality issue. Counsel also argued Hernandez was “not precluded from PC 1170.95 consideration as his conviction of first degree [sic] murder by the jury was inconsistent with the theory that Mr. Hernandez aided and abetted Rascal.” Counsel stated, “The evidence at trial established that Hernandez did not approach the victim and was not the shooter or ever handled the firearm during the incident. His involvement was limited to driving Rascal to the basketball courts then driving him away after the shooting. Only a first-degree conviction would have established that Hernandez aided and abetted Rascal[;] as there is no clarity on what the basis of liability the jury used [sic] in convicting Mr. Hernandez he is not precluded from 1170.95 resentencing consideration.”
Counsel appeared before the court on October 1, 2020. The court stated it had “reviewed the petition, the People's response, the defendant's reply, the court file, and the record of conviction, including the jury instructions, the verdict forms, and the appellate court opinion.” It “also [had] reviewed the transcript of the reading of the jury instructions as well as the closing arguments.” The court asked if counsel “wish[ed] to be heard further beyond what has been briefed.” Both Hernandez's counsel and the prosecutor answered, “No, Your Honor.”
The court began to address the constitutionality issue; the prosecutor interrupted to say he was “withdrawing that argument.” The court then summarized the changes Senate Bill 1437 made to the Penal Code and the “procedure for analysis and for resentencing, ” citing People v. Drayton (2020) 47 Cal.App.5th 965 and People v. Nguyen (2020) 53 Cal.App.5th 1154 (Nguyen). After describing the process for a court's initial review of a petition for facial sufficiency and a subsequent, second review, the court stated, “the issue is whether the defendant has presented a prima facie case for eligibility for the court to issue the O.S.C.”
The court continued, “[T]he jury in the Hernandez case was not instructed on felony murder. None of the CALCRIM 540 instructions [were] given, and further, the People did not present argument on this theory.” Nor, the court stated, was the jury “instructed on natural and probable consequences, CALCRIM 402, target and nontarget offenses charged, or 403, only non-target offenses charged.”
Citing People v. Soto (2020) 51 Cal.App.5th 1043 (Soto), review granted Sept. 23, 2020, S263939, and People v. Martinez (2007) 154 Cal.App.4th 314, the court noted the phrase “natural and probable consequence” in CALCRIM No. 520, defining murder with malice aforethought, does not mean the same thing as the “distinct natural and probable consequence doctrine developed in the context of aiding and abetting liability.”
Although somewhat unclear, it appears Hernandez attached a copy of CALCRIM No. 520 to his petition.
In sum, the court stated, “The jury was never instructed on natural and probable consequences nor on felony murder, and as a result, [Hernandez's] conviction was not based on either theory. Having not been convicted on either theory, the defendant cannot now avail himself of a petition for relief under 1170.95.”
Hernandez appealed and we appointed counsel to represent him on appeal. After examining the record, counsel filed an opening brief raising no issues and asking this court independently to review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel stated she had written to Hernandez to advise him she was filing a Wende brief and he had the right to file a supplemental brief. We also sent Hernandez a letter on April 21, 2021, telling him the same thing.
Hernandez sent a letter to the court, dated April 29, 2021. Hernandez wrote, “I did not act or [e]ncourage or ha[ve] any malice as the shooter himself”; “I did not ha[ve] any intent to kill anyone.” Hernandez continued, “I though[t] the other 2 guys I mention[ed] were going to robbed (do a robbery).... I also said to detective I did not kn[o]w any one [sic] had a gun on them.”
DISCUSSION
To be eligible for resentencing under Senate Bill 1437, Hernandez must have been tried and convicted under either (1) the felony murder rule or (2) the natural and probable consequences doctrine. (§ 1170.95, subd. (a); People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493; Nguyen, supra, 53 Cal.App.5th at pp. 1166-1167.) Here, the trial court reviewed the jury instructions as well as the reporter's transcript of the instructions as read to the jury and of closing arguments at Hernandez's trial. The court found Hernandez was not tried or convicted under either the felony murder rule or the natural and probable consequences doctrine. On appeal, Hernandez does not challenge that finding. Accordingly, he is statutorily ineligible for relief as a matter of law. (Soto, supra, 51 Cal.App.5th at p. 1056; People v. Lee (2020) 49 Cal.App.5th 254, 263-265, review granted July 15, 2020, S262459.)
We are satisfied that Hernandez's counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The postjudgment order is affirmed.
We concur: EDMON, P. J., LAVIN, J.