People v. Hernandez CA2/7 ( 2021 )

Filed 3/9/21 P. v. Hernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303608
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA285268)
v.
RICARDO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Reversed with
directions.
Richard D. Miggins, 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, Charles S. Lee and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________________
Ricardo Hernandez appeals from the superior court’s order
denying his petition for resentencing under Penal Code section
1170.95.1 He contends the court, after issuing an order to show
cause under section 1170.95, subdivision (c), erred by applying an
incorrect standard of proof when ruling, under section 1170.95,
subdivision (d)(3), the prosecution proved he was ineligible for
resentencing. Hernandez argues that, in requiring the
prosecution merely to prove he “could still be convicted of
murder” under changes in the law effected January 1, 2019 by
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), the court applied
a standard of proof “equivalent to the substantial evidence
standard.” Hernandez argues the correct standard requires the
court, acting as an independent factfinder, to determine whether
the prosecution proved beyond a reasonable doubt the defendant
“is guilty of murder” on a theory that is valid under current law.
The People agree (as the record shows) the superior court applied
a substantial evidence standard, but argue that is the correct
standard.
It is not. As we held in People v. Rodriguez (2020)
58 Cal. App. 5th 227, petition for review pending, petition filed
January 15, 2021, S266652, following People v. Lopez (2020)
56 Cal. App. 5th 936, review granted February 10, 2021, S265974,
“section 1170.95 requires the prosecutor to prove beyond a
reasonable doubt each element of first or second degree murder
under current law to establish a petitioner’s ineligibility for relief
under that statute.” (Rodriguez, at pp. 230-231; see People v.
Harris (Feb. 16, 2021, B300410) ___ Cal.App.5th ___, ___ [2021
WL 567388, p. 7]; People v. Duchine (2021) 60 Cal. App. 5th 798,
810; People v. Clements (2021) 60 Cal. App. 5th 597, 614-615;
1 Statutory references are to the Penal Code.
2
Lopez, at p. 942.)2 We explained that, in evaluating whether the
prosecutor has met this burden, “it is the court’s responsibility to
act as independent fact finder and determine whether the
evidence establishes a petitioner would be guilty of murder
under” the law as amended by Senate Bill No. 1437. (Rodriguez,
at pp. 243-244.) Therefore, the superior court’s order denying
Hernandez’s petition is reversed, and the trial court is directed to
make a determination under section 1170.95, subdivision (d)(3),
applying the correct, beyond-a-reasonable-doubt standard.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
2 The Supreme Court granted review in People v. Duke
(2020) 55 Cal. App. 5th 113, review granted January 13, 2021,
S265309, to decide whether the People can meet their burden of
establishing a petitioner’s ineligibility for resentencing under
section 1170.95, subdivision (d)(3), by presenting substantial
evidence of the petitioner’s liability for murder under sections
188 and 189 as amended by Senate Bill No. 1437.
3