People v. Hernandez ( 2021 )

Filed 1/22/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B302815
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A710815)
v.
ALBERTO BETO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hilleri G. Merritt, Judge. Affirmed.
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Idan Ivri and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Effective January 1, 2019 the Legislature changed the law
governing whether a defendant can be convicted of murder under
a felony murder or natural and probable consequences theory. To
limit the scope of the first doctrine and eliminate entirely the
second, the Legislature enacted Penal Code section 188,
subdivision (a)(3),1 which provides that, except as stated in
section 189, subdivision (e), to be convicted of murder a principal
in a crime must act with malice and that malice may not be
imputed based solely on participation in a crime. Section 189,
subdivision (e), also effective January 1, 2019, in turn provides an
exception to the malice requirement for murder by stating that
an individual can be liable for first degree felony murder if the
person (1) was the actual killer, (2) acted with the intent to kill in
aiding and abetting the actual killer, or (3) was a major
participant in the underlying felony and acted with reckless
indifference to human life.
But the Legislature also enacted an exception to the
exception in section 189, subdivision (e): section 189,
subdivision (f). The latter provision allows (or at least was
intended to allow) individuals to be convicted of felony murder
even if they did not act with malice and do not fall in one of the
three categories of section 189, subdivision (e), where the victim
is a peace officer engaged in the course of his or her duties and
the defendant knows (or reasonably should know) these facts.
Which makes sense: The Legislature has recognized peace
officers face unique dangers when performing their official duties.
1 Statutory references are to the Penal Code.
2
Section 189, subdivision (f), however, does not quite say
what the Legislature meant it to say. It states: “Subdivision (e)
does not apply to a defendant when the victim is a peace officer
who was killed while in the course of the peace officer’s duties,
where the defendant knew or reasonably should have known that
the victim was a peace officer engaged in the performance of the
peace officer’s duties.” The problem is that, if section 189,
subdivision (e), “does not apply,” then arguably section 188,
subdivision (a)(3), does apply, which would mean the prosecution
must prove malice when the victim of a felony murder is a peace
officer, but not when the victim is someone other than a peace
officer. Which does not make sense.
Alberto Hernandez relies on this apparent legislative
misstep in his appeal from the superior court’s order denying his
petition under section 1170.95, which allows certain defendants
convicted of murder under a felony murder or natural and
probable consequences theory to petition the court to vacate their
convictions and for resentencing. Hernandez contends the
superior court erred in ruling that section 189, subdivision (f),
like the three circumstances in section 189, subdivision (e), is an
exception to section 188, subdivision (a)(3), and that the
prosecution does not need to prove the defendant acted with
malice to convict the defendant of the murder of a peace officer
under the felony murder doctrine.
We conclude the superior court correctly ruled section 189,
subdivision (f), does not require the prosecution to prove the
defendant acted with malice. We also conclude, contrary to
Hernandez’s contentions, that the law of the case doctrine did not
preclude the superior court from finding he could be convicted of
first degree felony murder under current law and that the
3
superior court did not apply the wrong legal standard in
determining whether he had the requisite knowledge under
section 189, subdivision (f). Therefore, we affirm the order
denying Hernandez’s petition under section 1170.95.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Hernandez of Felony Murder and
Burglary
1. Hernandez Burglarizes an Electronics Store
with a Friend, Who Shoots a Police Officer
On June 7, 1988, shortly after midnight, Hernandez and
his friend Bobby Steele broke into an electronics store and
activated a burglar alarm. Four officers of the Los Angeles Police
Department, including Officer James C. Beyea and his partner
Officer Ignacio Gonzalez, responded to the alarm. After finding
no one in the store, Officer Beyea and Officer Gonzalez drove to a
police telephone about 100 yards from the store to call the store’s
owner. The store’s alarm, however, sounded again. Believing the
suspects may have returned to the store, Officer Beyea and
Officer Gonzalez went back to the store without turning on the
lights on their patrol car so they could “sneak up on the
suspects.”
As they approached the store, Officer Gonzalez saw a
suspect in a white jacket leaving through a sliding door. The
suspect ran down a driveway to the back of the store, and Officer
Gonzalez pursued him in the patrol car. When Officer Gonzalez
and Officer Beyea arrived at the back of the store, Officer
Gonzalez saw another suspect, wearing dark clothing, running
through a shipping yard on the other side of a fence from the
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electronics store. Officer Beyea called for backup, while Officer
Gonzalez backed the patrol car out of the driveway and drove
around the block to corner the suspects. When no one appeared,
Officer Gonzalez suggested that Officer Beyea continue on foot,
while he drove around the block. As Officer Gonzalez returned to
the place where he left Officer Beyea, he saw the suspect who
was wearing the white jacket struggling with Officer Beyea.
Officer Gonzalez then saw the suspect, who was later determined
to be Steele, raise his arm and point it at Officer Beyea. Officer
Gonzalez heard two gunshots, which killed Officer Beyea.
Meanwhile, at 1:00 a.m. a woman living in an apartment
complex near the electronics store heard “hysterical crying or
laughing” outside her window. After hearing something
“clanking” on a chain-link fence behind her building, she looked
outside and saw two men, one wearing dark clothing and the
other wearing a white jacket, crouched and talking in low voices.
The men got up and ran in the same direction. Less than a
minute later, the woman heard two gunshots. She saw police
lights in the area and a police helicopter, but called the police
anyway.
2. The Police Find Hernandez and Steele
At 1:30 a.m. police officers found Hernandez, alone and
unarmed, hiding in bushes half a block from the electronics store.
Officers also discovered stereo equipment in nearby bushes.
Officers eventually found Steele hiding in the attic of an
abandoned house, where officers killed him during a
confrontation. The officers found Officer Beyea’s gun next to
Steele’s body.
5
3. The Police Interview Hernandez
Police detectives interviewed Hernandez, who admitted he
was involved in the burglary. Hernandez said he and Steele fled
the electronics store when they heard helicopters. Hernandez
stated that he followed Steele as Steele climbed over a wall, but
that when he saw a police officer chase Steele on the other side,
Hernandez ran in a different direction and hid in the bushes.
Hernandez said that he did not see the officer confront Steele, but
that, after he heard gunshots, he saw Steele run past him.
Hernandez remained hidden in the bushes until police found him.
Hernandez told police Steele did not have a gun.
4. A Jury Convicts Hernandez of Felony Murder,
and This Court Affirms but Modifies the
Judgment
The People charged Hernandez with first degree murder
and commercial burglary and alleged a principal was armed with
a firearm, within the meaning of section 12022, subdivision (a).
At trial, the prosecution proceeded only on a theory of first degree
felony murder, and the trial court instructed only on that theory.
The trial court, however, did not tell the jury to make a finding
on the degree of felony murder, and the verdict form did not ask
the jury to specify the degree. The jury found Hernandez guilty
of murder and commercial burglary “as charged” and found true
the firearm allegation. The trial court sentenced Hernandez to
25 years to life on the first degree murder conviction, sentenced
him to a consecutive term of two years for the burglary
conviction, and imposed and stayed execution of the one-year
firearm enhancement.
6
In 1990 this court affirmed Hernandez’s conviction but
modified the judgment. (People v. Hernandez (Oct. 15, 1990,
B041270) [nonpub. opn.] (Hernandez I).) Citing People v.
McDonald (1984) 37 Cal.3d 351 (McDonald), this court held
section 1157 required the court to correct the judgment to show
Hernandez was convicted of second degree murder.2 (See
Hernandez I, supra, B041270.) On remand the trial court
resentenced Hernandez to 15 years to life on the conviction for
second degree murder.
B. The Legislature Enacts Senate Bill No. 1437 and
Establishes the Section 1170.95 Petition Procedure
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective
January 1, 2019, amended the felony murder rule and eliminated
the natural and probable consequences doctrine as it relates to
murder by amending sections 188 and 189. As discussed, new
section 188, subdivision (a)(3), provides: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” New section 189, subdivision (e),
provides that, with respect to a participant in the perpetration or
attempted perpetration of a felony listed in section 189,
subdivision (a), in which a death occurs (that is, those crimes that
2 Section 1157 provides: “Whenever a defendant is convicted
of a crime or attempt to commit a crime which is distinguished
into degrees, the jury, or the court if a jury trial is waived, must
find the degree of the crime or attempted crime of which he is
guilty. Upon the failure of the jury or the court to so determine,
the degree of the crime or attempted crime of which the
defendant is guilty, shall be deemed to be of the lesser degree.”
7
provide the basis for first degree felony murder), an individual is
liable for murder “only if one of the following is proven: [¶]
(1) The person was the actual killer. [¶] (2) The person was not
the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” New section 189,
subdivision (f), provides that section 189, subdivision (e), “does
not apply to a defendant when the victim is a peace officer who
was killed while in the course of the peace officer’s duties, where
the defendant knew or reasonably should have known that the
victim was a peace officer engaged in the performance of the
peace officer’s duties.”
Senate Bill No. 1437, through new section 1170.95, also
authorized an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and to be resentenced
on any remaining counts if the individual could not have been
convicted of murder under changes Senate Bill No. 1437 made to
the definition of murder. (People v. Gentile (2020) 10 Cal.5th 830,
842; People v. Rodriguez (2020) 58 Cal.App.5th 227, 236-237
(Rodriguez).) If the petition contains all required information,
and the court determines the petition is facially sufficient, section
1170.95, subdivision (c), prescribes a two-step procedure for
determining whether to issue an order to show cause: “‘The court
shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel,
8
the court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply . . . . If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.’” (People v. Verdugo (2020)
44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493
(Verdugo).)
If the court issues an order to show cause, the court must
hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
Rodriguez, supra, 58 Cal.App.5th at p. 237; Verdugo, supra,
44 Cal.App.5th at p. 327.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt the petitioner is
ineligible for resentencing. (Rodriguez, at p. 237; see § 1170.95,
subd. (d)(3).) The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence.
(Rodriguez, at p. 237; see People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Edwards (2020) 48 Cal.App.5th 666, 674,
review granted July 8, 2020, S262481.)
C. Hernandez Files a Petition Under Section 1170.95
On January 4, 2019 Hernandez filed a petition under
section 1170.95. He alleged, among other things, that he was
convicted of felony murder on a theory on which he could not be
convicted after the amendments to sections 188 and 189 and that
he was not the actual killer, was not a major participant in the
felony, and did not act with reckless indifference to human life.
He also alleged: “The victim of the murder was not a peace
9
officer in the performance of his or her duties, or I was not aware
that the victim was a peace officer in the performance of his or
her duties and the circumstances were such that I should not
reasonably have been aware that the victim was a peace officer in
the performance of his or her duties.”
The superior court appointed counsel for Hernandez, and
the prosecutor filed a response to Hernandez’s petition. The
prosecutor argued Hernandez was ineligible for relief under
section 1170.95 because “the victim was a peace officer who was
killed while in the course of his duties, and [Hernandez] knew
that the victim was a peace officer engaged in the performance of
his duties as defined in Penal Code section 189(f).”3 Hernandez
filed a reply asserting that section 189, subdivision (f), did not
apply to his conviction for second degree murder because second
degree felony murder “no longer exists in California” and that,
even if it did, Hernandez did not “endanger” Officer Beyea.
The superior court found Hernandez made a prima facie
showing he fell within the provisions of section 1170.95, and
although the court did not issue an order to show cause, the court
set the matter for an evidentiary hearing. The prosecutor filed a
supplemental response arguing, among other things, section 1157
no longer required the court to reduce a conviction for first degree
murder to second degree murder where the trial court did not
instruct the jury to determine the degree of the murder or give
3 The prosecutor also argued that Senate Bill No. 1437 was
unconstitutional and that Hernandez was not eligible for
resentencing under section 1170.95 because he was “a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” The People do not make either of these
arguments on appeal.
10
the jury a verdict form asking the jurors to specify the degree, so
long as the court correctly instructed the jury only on first degree
felony murder. (See People v. Mendoza (2000) 23 Cal.4th 896,
908-909 (Mendoza).) Thus, the prosecutor argued, Hernandez
was ineligible for resentencing under section 1170.95 because he
could still be convicted of first degree murder.
The court held an evidentiary hearing and denied the
petition. The court ruled Hernandez was not entitled to relief
under section 1170.95 because he could still be convicted of first
degree murder under section 189, subdivision (f). The superior
court also agreed with the prosecutor’s argument that section
1157 would no longer require a court to reduce Hernandez’s
original conviction for first degree murder to second degree
murder. Hernandez timely appealed.
DISCUSSION
A. The Prosecution Does Not Have To Prove Malice To
Convict a Defendant of Felony Murder Under Section
189, Subdivision (f)
1. Applicable Law
“The construction and interpretation of section 1170.95 is a
question of law we consider de novo.” (People v. Howard (2020)
50 Cal.App.5th 727, 737.) Our task “is to ascertain the
Legislature’s intent so as to effectuate the law’s purpose.
[Citation.] We begin our inquiry by examining the statute’s
words, giving them a plain and commonsense meaning.
[Citation.] In doing so, however, we do not consider the statutory
language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire
substance of the statute . . . in order to determine the scope and
11
purpose of the provision . . . . [Citation.]’ [Citation.] That is, we
construe the words in question ‘“in context, keeping in mind the
nature and obvious purpose of the statute . . . .” [Citation.]’
[Citation.] We must harmonize ‘the various parts of a statutory
enactment . . . by considering the particular clause or section in
the context of the statutory framework as a whole.’” (Mendoza,
supra, 23 Cal.4th at pp. 907-908; see Howard, at p. 737.)
2. Section 189, Subdivision (f), Is an Exception to
the Malice Requirement of Section 188,
Subdivision (a)(3)
As discussed, Hernandez’s primary argument is essentially
based on a drafting oversight: Section 188, subdivision (a)(3),
says that, except as set forth in section 189, subdivision (e), all
murder requires malice aforethought, and malice cannot be
imputed based solely on a person’s participation in a crime.4
Under section 189, subdivision (e), the prosecutor must show the
defendant was the actual killer, aided and abetted the actual
killer with the intent to kill, or was a major participant in the
underlying felony and acted with reckless indifference to human
life. If the circumstances described in section 189, subdivision (f),
exist, however, section 189, subdivision (e), “does not apply.”
Hernandez asserts that, where section 189, subdivision (f),
applies (and subdivision (e) “does not”), the prosecutor still must
show the defendant acted with malice under section 188,
subdivision (a)(1) or (a)(2), because the Legislature could have
4 Section 188, subdivision (a)(1), defines express malice, and
section 188, subdivision (a)(2), provides for malice “when no
considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.”
12
identified, but did not identify, section 189, subdivision (f), as an
exception to section 188, subdivision (a)(3).
Hernandez’s proposed interpretation, however, would lead
to an absurd result: It would make it no easier for prosecutors to
convict defendants of murder where the victim is a peace officer
than it would be where the victim is not a peace officer. We
cannot adopt such an interpretation. To the contrary, “[w]e must
select the construction that comports most closely with the
apparent intent of the Legislature, with a view to promoting
rather than defeating the general purpose of the statute, and
avoid an interpretation that would lead to absurd consequences.”
(People v. Jenkins (1995) 10 Cal.4th 234, 246; see People v.
Bullard (2020) 9 Cal.5th 94, 107 [courts must interpret statutes
to avoid absurd results]; People v. Cook (2015) 60 Cal.4th 922,
938, fn. 2 [courts interpret statutes to “avoid an absurd result the
Legislature could not have intended”]; In re Greg F. (2012)
55 Cal.4th 393, 410 [“courts are obligated to ‘adopt a common
sense construction over one leading to mischief or absurdity’”];
People v. Elliot (2005) 37 Cal.4th 453, 478 [“‘“We will avoid any
interpretation that would lead to absurd consequences.”’”].) Even
where the language appears clear, “it is settled that the language
of a statute should not be given a literal meaning if doing so
would result in absurd consequences that the Legislature did not
intend. To this extent, therefore, intent prevails over the letter of
the law and the letter will be read in accordance with the spirit of
the enactment.” (In re Michele D. (2002) 29 Cal.4th 600, 606; see
City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616
[courts must generally follow the plain meaning of statutory
language, “unless a literal interpretation would result in absurd
consequences the Legislature did not intend”]; People v. Ledesma
(1997) 16 Cal.4th 90, 95 [“‘“[i]t is a settled principle of statutory
interpretation that language of a statute should not be given a
13
literal meaning if doing so would result in absurd consequences
which the Legislature did not intend”’”].) Section 189,
subdivision (f), must at least make it easier to convict a
defendant of felony murder when the victim is a peace officer.
Interpreting section 189, subdivisions (e) and (f), as Hernandez
proposes would violate one of the basic canons of statutory
interpretation. (See National Shooting Sports Foundation, Inc. v.
State of California (2018) 5 Cal.5th 428, 433 [“the absurdity
canon . . . counsels courts to ‘avoid any [statutory] construction
that would produce absurd consequences’”].)5
Hernandez’s interpretation is also contrary to the policy of
supporting and protecting peace officers engaged in the
performance of their duties. For example, in its uncodified
findings and declarations for section 189.1, a statute enacted in
2017 in response to an increase in the number of killings of police
officers, the Legislature declared that it “recognizes the dangers
faced by the men and women who serve as peace officers in the
5 At oral argument, counsel for Hernandez argued his
proposed interpretation does not lead to absurd consequences
because, although it does not relieve the prosecution of having to
prove malice, it does provide the prosecution with a benefit: If
the prosecution proves the defendant acted with malice, then
under section 189, subdivision (f), the defendant is
“automatically” guilty of first degree murder. Under this
proposed interpretation, although section 189, subdivision (f),
does not make it easier to convict a defendant of murder when
the victim is a peace officer, it does make it easier to convict a
defendant of first degree malice murder by, in counsel for
Hernandez’s words, “elevating what otherwise would have been a
second degree murder” to first degree murder. The problem with
this interpretation is that, despite its ingenuity, there is no
support for it in the statute’s language or legislative history.
14
state” and that “it is the intent of the Legislature to reiterate that
California law protects all victims of violent crime, including
when the victim is a peace officer.” (Stats. 2017, ch. 214, § 1; see
Bernard v. City of Oakland (2012) 202 Cal.App.4th 1553, 1563,
fn. 7 [“an uncodified section of the enacted legislation . . . has the
same force and effect as its codified sections”]; Grinzi v. San
Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 86 [an uncodified
section of an act “is fully part of the law” and “must be read
together with provisions of codes”].) As the Supreme Court
explained in People v. Rodriguez (1986) 42 Cal.3d 730 in
upholding the constitutionality of section 190.2,
subdivision (a)(7), which the voters approved to make defendants
who intentionally and knowingly kill a peace officer engaged in
the course of the performance of the officer’s duties eligible for
the death penalty (People v. Rodriguez, at pp. 780-781), there is a
“special outrage that characteristically arises from the
intentional murder of persons acting in certain official public
safety capacities. Society considers such killings especially
serious for several reasons. The community abhors the human
cost to these especially endangered officers and their families,
‘who regularly must risk their lives in order to guard the safety of
other persons and property.’ [Citation.] Murders of this kind
threaten the community at large by hindering the completion of
vital public safety tasks; they evince a particular contempt for
law and government, and they strike at the heart of a system of
ordered liberty. Applying longstanding values, the electorate
may reasonably conclude that an intentional murderer increases
his culpability, already great, when he kills one whom he knew or
should have known was a police officer performing his duties.”
15
(Id. at p. 781;6 see People v. Sandoval (2015) 62 Cal.4th 394, 423
[“murder of a peace officer engaged in the lawful performance of
his duties” is “particularly heinous”]; People v. Brady (2010)
50 Cal.4th 547, 584 [“the murder of a peace officer engaged in
performing official duties is a particularly aggravated form of
murder”].)
Consistent with this policy and the applicable principles of
statutory interpretation, section 189, subdivision (f), excuses the
prosecution from proving, rather than requiring the prosecution
to prove, the defendant acted with malice when the victim of a
murder committed in the course of a felony listed in section 189,
subdivision (a), is a peace officer engaged in the performance of
the officer’s duties and the defendant has the requisite
knowledge. Properly understood, section 189, subdivision (f),
provides that, when the victim is a peace officer under the
conditions specified in that subdivision, the three circumstances
in section 189, subdivision (e)—namely, the defendant was the
actual killer, aided and abetted the actual killer with the intent
to kill, or was a major participant in the underlying felony and
acted with reckless indifference to human life—“do not apply,”
and that under the first clause of section 189, subdivision (e), a
defendant who participates “in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death
occurs is liable for murder.” (See Verdugo, supra, 44 Cal.App.5th
at p. 326, fn. 6 [“The conditions for imposing liability for first
6 Although section 189, subdivision (f), applies to both
intentional and unintentional killings, the policies underlying
section 190.2, subdivision (a)(7), apply equally to the
Legislature’s intent in imposing liability on accomplices under
the felony murder doctrine where the victim is a peace officer in
the circumstances identified in section 189, subdivision (f).
16
degree felony murder specified in section 189, subdivision (e), do
not apply to a participant in one of the enumerated felonies when
the victim is a peace officer who was killed while in the course of
his or her duties when the defendant knew or reasonably should
have known that the victim was a peace officer engaged in the
performance of his or her duties.”]; see also People v. Gentile,
supra, 10 Cal.5th at p. 847 [“the Legislature said that with the
exception of the felony murder rule, ‘[a] person’s culpability for
murder must be premised upon that person’s own actions and
subjective mens rea’”].)
The legislative history of Senate Bill No. 1437 eliminates
any doubt this is the proper interpretation of section 189,
subdivision (f). The Legislative Counsel’s Digest states: “This
bill would prohibit a participant in the perpetration or attempted
perpetration of one of the specified first degree murder felonies in
which a death occurs from being liable for murder, unless the
person was the actual killer or the person was not the actual
killer but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer, or the person was a major participant in the underlying
felony and acted with reckless indifference to human life, unless
the victim was a peace officer who was killed in the course of
performing his or her duties where the defendant knew or should
reasonably have known the victim was a peace officer engaged in
the performance of his or her duties.” (Legis. Counsel’s Dig.,
Sen. Bill No. 1437 (2017-2018 Reg. Sess.), italics added; see
People v. Solis (2020) 46 Cal.App.5th 762, 783 [“‘The Legislative
Counsel’s Digest is the official summary of the legal effect of a bill
and is relied upon by the Legislature throughout the legislative
process.’”]; People v. Fryhaat (2019) 35 Cal.App.5th 969, 980, fn. 3
[“The Legislative Counsel’s summaries, which ‘“are prepared to
17
assist the Legislature in its consideration of pending legislation,”’
while ‘not binding,’ are nevertheless ‘entitled to great
weight . . . .’”].) The report of the Senate Rules Committee
similarly explained that the Assembly amendments to Senate
Bill No. 1437 provided “that the provisions of the bill do not apply
when the decedent is a peace officer, as specified.” (Sen. Rules
Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1437
(2017-2018 Reg. Sess.) as amended Aug. 20, 2018, p. 1.) The
report also stated the bill “[a]llows a defendant to be convicted of
first degree murder if the victim is a peace officer who was killed
in the course of duty, where the defendant was a participant in
certain specified felonies and the defendant knew, or reasonably
should have known, that the victim was a peace officer engaged
in the performance of duty, regardless of the defendant’s state of
mind.” (Id. at p. 3, italics added; see People v. Cruz (1996)
13 Cal.4th 764, 773, fn. 5 [“‘it is well established that reports of
legislative committees and commissions are part of a statute’s
legislative history and may be considered when the meaning of a
statute is uncertain’”]; People v. Turner (2020) 45 Cal.App.5th
428, 437, fn. 7 [“Committee reports and bill analyses may be
considered as appropriate legislative history because they ‘shed
light on the collegial view of the Legislature as a whole.’”].)
Finally, our interpretation of the statute is consistent with
a leading treatise on California sentencing law, which explains
section 189, subdivision (f), as follows: “The only exception to the
new felony-murder rule is when the victim of the homicide is a
peace officer . . . . If the defendant is a participant in one of the
designated crimes and in the course of committing the felony a
peace officer is killed, the defendant may be convicted of first
degree felony murder without any additional showing of malice
or premeditation. [Citation.] The defendant may be convicted of
18
felony murder without proof the defendant was the actual killer,
that the defendant, with the intent to kill, assisted in the
commission of the killing, or that the defendant was a major
participant in the underlying felony and acted with reckless
indifference to human life.” (Couzens et al., Sentencing Cal.
Crimes (The Rutter Group 2020 supp.) § 23:48, italics added; see
People v. Lopez (2020) 56 Cal.App.5th 936, 949-950 [citing this
treatise in interpreting section 1170.95].)
B. Hernandez Is Not Entitled to Relief Under Section
1170.95 Because He Could Be Convicted of Murder
Under Current Law
Hernandez argues that, because “this court determined 30
years ago that [he] was convicted of second degree murder, he
cannot now be tried for, and thus could not be convicted of, first
degree murder.” Hernandez asserts he is entitled to relief under
section 1170.95 because “second degree felony murder has been
abrogated completely” and section 189, subdivisions (e) and (f),
“which only relate to first degree felony murder, don’t apply.” He
argues the law of the case doctrine precludes him from being
convicted today of first degree felony murder.
While Hernandez may be right about second degree felony
murder (see In re White (2019) 34 Cal.App.5th 933, 937, fn. 2
[under Senate Bill No. 1437 “the second degree felony-murder
rule in California is eliminated”]; People v. Frandsen (2019)
33 Cal.App.5th 1126, 1142, fn. 3 [Senate Bill No. 1437 “brings
into question the ongoing viability of second degree felony murder
in California”]), he is wrong about section 1170.95 and the law of
the case doctrine.7 As this court explained in Rodriguez, an
7 “‘The law of the case doctrine states that when, in deciding
an appeal, an appellate court “states in its opinion a principle or
19
inmate’s petition under section 1170.95 “express[es] the
hypothetical situation” of “what would happen today if he or she
were tried under the new provisions of the Penal Code?”
(Rodriguez, supra, 58 Cal.App.5th at p. 241.) Once a petitioner
establishes a prima facie case of eligibility, the prosecutor must
prove under amended sections 188 and 189 the petitioner is
ineligible for resentencing “under current law.” (People v. Lopez,
supra, 56 Cal.App.5th at pp. 948-949; see § 1170.95, subd. (a)(3);
Rodriguez, at p. 243.) And if prosecuted today, under current
law, Hernandez could be convicted of first degree murder under
section 189, subdivision (f). (See Lopez, at pp. 948-949 [“the
prosecutor’s burden is to prove that the state would be able to
prove the petitioner’s guilt of first or second degree murder under
current law”].) What this court decided in 1990, and whether
that decision is law of the case, is not relevant to the analysis.
And even if it were, the exception to the law of the case
doctrine for intervening changes in the law would apply. (See
People v. Jurado (2006) 38 Cal.4th 72, 94; People v. Whitt (1990)
51 Cal.3d 620, 638-639.) As discussed, in McDonald, supra,
37 Cal.3d 351 the Supreme Court held section 1157 applied
where, as occurred in Hernandez’s trial, the trial court instructs
the jury on first degree murder only and directs the jury to find
the defendant guilty or not guilty of first degree murder.
(McDonald, at p. 382.) Citing McDonald, this court held in
Hernandez I that the verdict in Hernandez’s trial was
rule of law necessary to the decision, that principle or rule
becomes the law of the case and must be adhered to throughout
its subsequent progress, both in the lower court and upon
subsequent appeal . . . , and this although in its subsequent
consideration this court may be clearly of the opinion that the
former decision is erroneous in that particular.”’” (People v.
Alexander (2010) 49 Cal.4th 846, 870.)
20
“undifferentiated as to degree” and that section 1157 required a
reduction of Hernandez’s conviction to second degree murder.
(Hernandez I, supra, B041270.) In 2000, however, the Supreme
Court in Mendoza, supra, 23 Cal.4th 896 overruled McDonald in
cases where, as here, the trial court instructed the jury only on
first degree felony murder. (Mendoza, at p. 908; see People v.
Gray (2005) 37 Cal.4th 168, 200 [courts need not reduce the
degree of the crime to a lesser degree under section 1157 “where
the prosecution’s sole theory in a murder case is felony murder”].)
Mendoza was an intervening change in the controlling law after
Hernandez I. (See Whitt, at pp. 636-639 [holding that People v.
Anderson (1987) 43 Cal.3d 1104, which overruled Carlos v.
Superior Court (1983) 35 Cal.3d 131, was “an intervening,
controlling change in the law” and that the defendant could not
rely on the overruled Carlos rule in his retrial].) Thus, even if
the law of the case doctrine applied, so would the exception for an
intervening, controlling change in the law. (See Whitt, at p. 639
[“Just as the law-of-the-case rule applies equally to both sides in
a criminal case, so do its exceptions.”].)
Finally, Hernandez contends “trying him for first degree
murder would violate the Double Jeopardy Clause.” An
evidentiary hearing under section 1170.95, however, does not
implicate double jeopardy because section 1170.95 “involves a
resentencing procedure, not a new prosecution.” (People v. Lopez
(2019) 38 Cal.App.5th 1087, 1116, review granted Nov. 13, 2019,
S258175.) The retroactive relief provided by section 1170.95 is a
legislative “act of lenity” intended to give defendants serving
otherwise final sentences the benefit of ameliorative changes to
applicable criminal laws and does not result in a new trial or
increased punishment that could implicate the Double Jeopardy
Clause. (Lopez, at pp. 1115-1116; cf. People v. Hanson (2000)
23 Cal.4th 355, 357 [“When a defendant successfully appeals a
21
criminal conviction, California’s constitutional prohibition
against double jeopardy precludes the imposition of more severe
punishment on resentencing.”]; People v. Davis (1995) 10 Cal.4th
463, 514, fn. 10 [“Double jeopardy precludes reprosecution for an
offense of which a defendant has been acquitted or to which
jeopardy has otherwise attached.”].) And even if a section
1170.95 evidentiary hearing were akin to a “reprosecution”
(Davis, at p. 514, fn. 10) for purposes of the Double Jeopardy
Clause, prohibitions against double jeopardy do not prevent a
retrial where “a conviction is not reversed on appeal for
insufficient evidence but because of a retroactive change in the
law [such as section 1170.95].” (Lopez, at pp. 1115-1116.)
C. Hernandez Knew or Should Have Known the Victim
Was a Police Officer Engaged in the Performance of
His or Her Duties Before Hernandez Reached a Place
of Temporary Safety
The superior court found Hernandez “knew or reasonably
should have known that the victim was a peace officer engaged in
the performance of the peace officer’s duties” under section 189,
subdivision (f), because Hernandez admitted he saw Officer
Beyea chase Steele. The superior court concluded that, at that
time, Hernandez and Steele “were still in the commission of the
burglary while they were trying to get to safety.” Hernandez
does not contest the superior court’s factual finding he knew the
victim was a peace officer engaged in the performance of his
duties, nor does he argue the court used an incorrect standard of
proof. (See Rodriguez, supra, 58 Cal.App.5th at p. 244.) Instead,
he argues the superior court erred because he did not have that
knowledge until after the burglary was complete. The court
correctly determined Hernandez had the requisite knowledge
22
under section 189, subdivision (f), and therefore could be
convicted of murder under sections 188 and 189 as amended.
1. Applicable Law
In People v. Wilkins (2013) 56 Cal.4th 333 (Wilkins) the
Supreme Court addressed “whether ‘a killer [is] liable for first
degree murder if the homicide is committed in the perpetration of
a . . . burglary.’” (Id. at p. 342.) The Supreme Court in Wilkins
acknowledged that People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt)
addressed “‘a nonkiller’s liability for the felony murder committed
by another.’” (Wilkins, at p. 342, quoting Cavitt, at p. 196.)
Under Cavitt a nonkiller like Hernandez is liable for felony
murder “‘if the killing and the felony “are parts of one continuous
transaction.”’” (Cavitt, at p. 207; see id. at p. 208 [“[t]he
continuous-transaction doctrine . . . defines the duration of
felony-murder liability, which may extend beyond the
termination of the felony itself, provided that the felony and the
act resulting in death constitute one continuous transaction”
(italics omitted)].)
A related but distinct doctrine called the “‘escape rule’
defines the duration of the underlying felony . . . by deeming the
felony to continue until the felon has reached a place of
temporary safety.” (Cavitt, supra, 33 Cal.4th at p. 208; see
Wilkins, supra, 56 Cal.4th at p. 341.) When a killing occurs while
a perpetrator attempts to flee, “the escape rule establishes the
‘outer limits of the “continuous-transaction” theory.’” (Wilkins, at
p. 345.) Thus, “‘[u]nder the felony-murder rule, a strict causal or
temporal relationship between the felony and the murder is not
required; what is required is proof beyond a reasonable doubt
that the felony and murder were part of one continuous
transaction. [Citation.] This transaction may include a
defendant’s flight after the felony to a place of temporary safety.’”
23
(Id. at p. 340.) The question “whether the defendant has reached
a place of temporary safety is an objective one to be determined
by the trier of fact.” (People v. Russell (2010) 187 Cal.App.4th
981, 991; see People v. Johnson (1992) 5 Cal.App.4th 552, 559.)
We apply “a deferential standard of review in determining
whether the evidence supports . . . the superior court’s factual
findings.” (Rodriguez, supra, 58 Cal.App.5th at p. 238; see People
v. Lopez, supra, 56 Cal.App.5th at p. 953 [substantial evidence
standard of review applies to findings of fact in postjudgment
orders, including those under section 1170.95].)
2. Hernandez Was Still in Flight When He Knew
or Reasonably Should Have Known the Victim
Was a Peace Officer Acting in the Course of His
Duties
Hernandez argues that the burglary ended when he left the
electronics store and that he had to have had the requisite
knowledge under section 189, subdivision (f), before that time.
Hernandez cites People v. Montoya (1994) 7 Cal.4th 1027, where
the Supreme Court held that, for the purpose of aider and abettor
liability, a burglary ends when the defendant leaves the
structure. (Id. at p. 1047.) The Supreme Court in Montoya,
however, stated that this definition of the duration of a burglary
“need not and should not be identical to the definition pertinent
to felony-murder liability,” and the Supreme Court cited cases
holding that a burglar’s liability for felony murder “continues
through escape until [the] perpetrator reaches [a] place of
temporary safety.” (Id. at p. 1045, fn. 9.) The Supreme Court
subsequently held in Cavitt that the continuous transaction
doctrine obviates the need to inquire whether the underlying
felony was completed or abandoned before the homicide
occurred. (Cavitt, supra, 33 Cal.4th at p. 207; see Wilkins, supra,
24
56 Cal.4th at p. 346 [felony murder liability extends “beyond the
technical completion” of the underlying felony].)
For purposes of liability for felony murder, the burglary of
the electronics store and the killing of Officer Beyea were parts of
one continuous transaction because Hernandez had not yet
reached a place of temporary safety. Hernandez and Steele fled
the store with stolen merchandise when they heard
helicopters. After they jumped a fence and hid under an
apartment building, a resident called the police to report
prowlers. Hernandez and Steele then climbed over a wall and,
once on the other side, Hernandez saw Officer Beyea chase
Steele. Hernandez took refuge in nearby bushes, but soon heard
multiple gunshots and saw Steele run past him. Police officers
apprehended Hernandez less than 30 minutes later, about an
hour after Officer Beyea first responded to the scene. This
evidence amply supported the superior court’s finding Hernandez
knew the victim was a peace officer engaged in the course of his
duties as a peace officer before Hernandez reached a place of
temporary safety. (See People v. Russell, supra, 187 Cal.App.4th
at p. 992 [defendant had not reached a place of temporary safety
where his flight from police by car at over 100 miles per hour
evidenced his “fear of apprehension”]; People v. Young (1992)
11 Cal.App.4th 1299, 1306 [defendant had not reached a place of
temporary safety where a witness, having spotted the defendant
within four blocks of a robbery, called the 911 emergency
operator and two minutes later the defendant fled at high speed];
People v. Johnson, supra, 5 Cal.App.4th at p. 561 [defendant had
not reached a place of temporary safety where he was “in
constant flight” from police].)8
8 Hernandez argued at the evidentiary hearing in the
superior court that he did not know, and could not reasonably
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DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
have known, “the victim” was a peace officer within the meaning
of section 189, subdivision (f), because he was not present when
Steele shot Officer Beyea. Hernandez does not make this
argument on appeal.
26