People v. Hernandez CA2/2 ( 2024 )

Filed 1/26/24 P. v. Hernandez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B321315
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A792694)
v.
APOLONIO CHAIDEZ
HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Norman J. Shapiro, Judge. Affirmed.
Sharon Fleming, by appointment of the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Apolonio Chaidez Hernandez
appeals from the trial court’s order denying his petition for
resentencing under Penal Code section 1172.61 (former
§ 1170.95).2 He argues that insufficient evidence supports the
trial court’s conclusion that he aided and abetted a first degree
murder, and that the trial court improperly relied on the factual
history from our prior appellate opinion.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Murder, Trial, and Conviction
“[O]n the evening of November 17, 1986,” defendant,
Oscar Rivera (Rivera), and Roque David Gaitan (Gaitan) were
involved in the fatal “stabb[ing] and sho[o]t[ing] . . . [of] fellow
gang member, Robert Wong [(Wong)], in apparent retaliation for
his informing others of the group’s criminal activities.” (People v.
Gaitan (Aug. 3, 1990), B035498 [nonpub. opn.] (Gaitan).)
“The day before the shooting defendant[,] [Rivera, and
Gaitan] had met at the home of Rivera’s brother in Highland
Park and agreed among themselves to ‘take care of’ Wong” “in
apparent retaliation for his informing others of the group’s
criminal activities.” (Gaitan, supra, B035498.) Nancy Gomez
(Gomez), who was also present at the house, heard Rivera tell
1 All further statutory references are to the Penal Code
unless otherwise noted.
2 When defendant filed his petition, the relevant
resentencing statute was numbered section 1170.95. Effective
June 30, 2022, section 1170.95 was renumbered section 1172.6,
with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity,
we refer to the section by its new numbering.
2
defendant “‘let’s go hunting’” shortly before the two men left the
house. When they returned 25 minutes later, defendant told
Gomez that they had gone looking for Wong at his grandmother’s
house, but hadn’t found him.
“Some 24 hours later,” the three men and Gomez “once
again assembled at the home of Rivera’s brother and then set out
to retrieve several shotguns from a hiding place in Elysian Hills.”
(Gaitan, supra, B035498.) They travelled in defendant’s car.
Later, defendant drove “the group . . . to an apartment
building in Highland Park where they joined several other gang
members.” (Gaitan, supra, B035498.) “When Wong arrived
sometime later, Gaitan escorted Gomez away from the scene and
directed her to wait in a friend’s parked car. He then joined
Rivera and the two began striking Wong in the face and body.
Although Gomez heard Wong protest that he had not ‘snitched’ or
otherwise been disloyal, defendants ignored his pleas and
continued the beating. When Gomez attempted to intervene,
Gaitan ordered her to remain in the car. [Defendant], who had
been working nearby on his own automobile, then approached
Gomez and prevented her from further interfering with the fight.
“From her vantage point, Gomez could see that Wong was
bleeding badly and that he had been knocked to the ground. As
the car in which she was sitting drove slowly away from the
scene, Gomez saw Rivera shoot Wong in the back of the head
with an 18-inch sawed-off shotgun. Gaitan, who was standing
next to Rivera, made no attempt to intervene.” (Gaitan, supra,
B035498.)
Another witness, Gilbert Martinez, reported to police that
defendant “was with . . . Gaitan when they killed Robert Wong.”
3
Martinez also claimed that defendant pulled him off of Gaitan
during the attack.3
“Within minutes, both men ran to [defendant’s] waiting
vehicle and fled the area. Gomez subsequently joined [the three
of them] and the group proceeded to Gaitan’s home where they
remained for the next several hours. While en route to their
destination, Gomez overheard Gaitan remark [to defendant] that
Wong wouldn’t ‘go down’ and that he had to be stabbed several
times before succumbing.” (Gaitan, supra, B035498.)
“At trial, forensic experts estimated that Wong died
sometime between 4:00 p.m. and 8:00 p.m. on November 17th
after suffering nearly 60 different stab wounds and a close range
shotgun blast to the base of the head. Although defendant[],
[Rivera and Gaitan] elected not to testify, the defense presented
several different witnesses who each claimed that the crime had
been perpetrated by a rival gang member.” (Fn. omitted.)
(Gaitan, supra, B035498.) “Defense counsel also argued to the
jury that Gomez,” who was initially coerced into talking to the
police but eventually became a cooperative witness, “was
. . . inherently unreliable[.]” (Gaitan, supra, B035498.)
The jury convicted defendant, Rivera, and Gaitan of first
degree murder. The jury also found true the allegations that
Rivera personally used a firearm (§ 12022.5, subd. (a)), that
Gaitan and Rivera personally used a knife (§ 12022, subd. (b)),
and that a principal to the crime was armed with a firearm
(§ 12022, subd. (a)). Defendant was sentenced to a term of 26
years to life in state prison.
3 Martinez referred to defendant and Gaitan by their
nicknames in the gang.
4
On direct appeal, we affirmed the conviction. (Gaitan,
supra, B035498.)
II. Section 1172.6 Petition
In January 2019, defendant filed a petition for resentencing
under section 1172.6. One month later, he filed another copy of
the same petition. The trial court subsequently appointed
counsel.
In August 2019, the People opposed the petition, arguing
that defendant was ineligible for relief because he was a direct
aider and abettor. On November 4, 2019, defendant asked the
trial court to issue an order to show cause pursuant to section
1172.6, subdivision (c).
At a hearing on November 6, 2020, the trial court
confirmed that it had received a CD filed by the prosecution
containing the transcripts from the trial.4 The matter was
continued several times. In the interim, the trial court granted
defendant’s request and issued an order to show cause.
On May 24, 2022, the matter proceeded to an evidentiary
hearing. The trial court began by saying that it had “look[ed]
over the records[,]” and noted that the 1988 trial had taken place
in the same courtroom as the present hearing.
Neither side proffered any new evidence, but the People
submitted “a new CD” compiling “trial transcripts and the clerk
transcripts” from the 1988 proceedings. The trial court noted
that “a lot of it or a good portion of it is part of the file.”
4 In the reporter’s transcript, the date of this hearing has
been handwritten in as November 6, 2019. However, the
corresponding minute order is dated November 6, 2020. In his
opening brief, appellant agrees that 2020 is the correct year; the
People’s briefing does not address this discrepancy.
5
The trial court said that “[w]hen it first received this file,
which was some time ago, I made some initial notes.” The court
proceeded to summarize these notes, allowing frequent
interruptions from defense counsel.
The trial court began by saying that it “recognized
immediately that [defendant] was not the shooter or the stabber.
He was at the scene. . . . [¶] . . . [and] Rivera runs to a vehicle
which [defendant] is driving and fleeing.” The court noted that
defendant “was present and drove to the scene and drove away
from the scene.”
The trial court continued, “the next notes I made . . . . [¶]
. . . The decedent was shot and stabbed in retaliation for possibly
informing. [¶] . . . [A group], includ[ing] [defendant], met and
agreed to take care of Wong.”
The trial court then said “[n]ow I have here, ‘set out to
retrieve several shotguns. Defendant[] joined by . . . Gomez and
other gang members. Went to Highland Park. Co-defendant[s]
. . . struck Wong. [Defendant] approached Gomez, prevented her
from either being or interfering in the fight. . . . [¶] . . . Gomez
saw Rivera shoot Wong. Gaitan is standing next to Rivera. . . .
Rivera and Gaitan ran to [defendant’s] vehicle and fled. [¶] I
have here, page 15, ‘Defendants murdered Wong in retaliation.
The defendants were willing to participate in the killing[,] or
defendant was willing to participate in the killing. Defendants
are all part of the same gang.’”
The trial court summarized, “[m]y conclusion was:
[defendant] was involved in planning, went to scene and left with
the co-defendants from the scene. [¶] I have pages 17 and 18.”
After hearing extensive argument from both sides, the trial
court ruled that defendant was “a participant going to and
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leaving. [He] obtained a weapon. There is evidence to support
that there was an agreement. [He] aided and abetted in the
object of the agreement.” The court then denied defendant’s
petition.
Defendant’s counsel said that he “under[stood] [the]
ruling,” but intended to appeal. The trial court indicated that it
understood defendant’s position, then returned to the subject of
the hearing.
The trial court said, “going back to my original notes, when
I looked at this matter, [defendant]’s involvement in this is not
simply somebody who unknowingly gave a couple people a ride to
a location and then nothing else to do with it, and lo and behold,
someone got shot.” The court found that, in this case, “[t]here
was a relationship between the parties. There was activity before
and there was activity after the scene. I don’t know about the
speakers. Maybe he wanted to look busy.”
Defendant timely appealed.
DISCUSSION
I. Applicable Law
“Section 1172.6 provides a mechanism whereby people ‘who
believe they were convicted of murder for an act that no longer
qualifies as murder following the crime’s redefinition in 2019[ ]
may seek vacatur of their murder conviction and resentencing by
filing a petition in the trial court.’ [Citation.]” (People v. Arnold
(2023) 93 Cal.App.5th 376, 382.)
As is relevant here, in order to obtain resentencing relief, a
petitioner must allege that (1) an information was filed against
him allowing the prosecution to proceed under a theory of murder
under the felony murder rule, the natural and probable
consequences doctrine, or any “other theory under which malice
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is imputed to a person based solely on that person’s participation
in a crime” (§ 1172.6, subd. (a)(1)); (2) the petitioner was
convicted of murder (§ 1172.6, subd. (a)(2)); and (3) he could not
now be convicted of murder as presently defined. (§ 1172.6, subd.
(a)(3)).
If the trial court determines that the petitioner has made a
prima facie showing of entitlement to relief, it must issue an
order to show cause and hold an evidentiary hearing. (§ 1172.6,
subd. (c).) At the evidentiary hearing, the parties may rely upon
evidence in the record of conviction or new evidence to
demonstrate whether the petitioner is eligible for resentencing.
(§ 1172.6, subd. (d)(3).) The prosecution bears the burden of
proving, “beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (§ 1172.6, subd. (d)(3).) If the
prosecution cannot meet its burden, and the petitioner prevails,
he is entitled to vacatur of the murder conviction and
resentencing as set forth in section 1172.6, subdivision (e).
II. Standard of Review
Relying primarily on People v. Vivar (2021) 11 Cal.5th 510(Vivar), Defendant urges us to review his appeal de novo, since
the trial court heard “no new evidence, and instead base[d] its
ruling on a ‘cold record.’”5 Vivar is inapposite, as it involved
whether there had been a sufficient showing of prejudice to
vacate a conviction by those facing negative immigration
consequences—a ruling that was predominantly a question of
5 Defendant also argues that “de novo review is required
because it appears the [trial] court based its decision on [the
appellate] court’s prior opinion rather than a thorough review of
the trial record.” (Bolding omitted.) As explained in section
III.B., infra, we disagree with the premise of defendant’s
argument; the trial court did properly review the trial record.
8
law. (Id. at pp. 517, 524.) Here, the issue is whether defendant
harbored the mental state required for a murder conviction under
section 188 or 189 as amended, which is predominantly a
question of fact. (See § 1172.6, subd. (d); People v. Clements
(2022) 75 Cal.App.5th 276, 296–301 (Clements), as mod. on den.
of rehg., Mar. 16, 2022.) Moreover, the holding in Vivar was
expressly limited to proceedings pursuant to section 1473.7.
(Vivar, supra, at p. 528, fn. 7.)
Defendant acknowledges but disagrees with the decisions of
the Courts of Appeal that have distinguished Vivar and held that,
on appeal, the trial court’s ruling under section 1172.6 is to be
reviewed for substantial evidence. (See, e.g., People v. Werntz
(2023) 90 Cal.App.5th 1093, 1109–1110; Clements, supra,
75 Cal.App.5th at pp. 296–301.) We agree with the reasoning of
the foregoing cases and decline to apply a de novo review.
Under the substantial evidence standard of review, we
examine the entire record in the light most favorable to the
judgment below. (People v. Becerrada (2017) 2 Cal.5th 1009,
1028), “examin[ing] the record independently for ‘“substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value”’ that would support a finding beyond a reasonable
doubt.” (People v. Banks (2015) 61 Cal.4th 788, 804).
Reversal on a substantial evidence ground “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conclusion of the
trier of fact].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
III. Analysis
Defendant raises two arguments against the order denying
his section 1172.6 petition, namely that (1) insufficient evidence
supports the trial court’s conclusion that he aided and abetted a
9
first degree murder, and (2) the trial court erroneously relied on
the factual history in our prior opinion. We address each issue in
turn.
A. Substantial Evidence
The trial court denied defendant’s petition upon finding
that he aided and abetted his confederates in the perpetration of
murder. “‘Someone aids and abets a crime if he or she knows of
the perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.’ [Citation.]”
(People v. Estrada (2022) 77 Cal.App.5th 941, 949, fn. 6.)
Here, the record contains evidence that defendant knew of
the perpetrators’ unlawful purpose. On the day before the
murder, defendant and the shooter, Rivera, discussed “tak[ing]
care of” Wong for turning on the gang. Defendant went out with
Rivera after the latter said, “[l]et’s go hunting[,]” and, upon
returning, admitted that they had gone out looking for Wong.
There is also ample evidence that, knowing of Rivera and
Gaitan’s intent, defendant facilitated their fatal encounter with
Wong and intended to help them commit the murder. Defendant
drove Rivera and Gaitan first to pick up weapons, and then to go
to the site of the murder. One witness, Gomez, claimed that
defendant stopped her from intervening when Rivera and Gaitan
attacked the decedent; another, Martinez, told police that
defendant stopped him from restraining Gaitan. Finally,
defendant drove Rivera and Gaitan away from the scene of the
crime after Rivera shot defendant.
Defendant raises three arguments against our conclusion.
First, he argues that there is no evidence that defendant
intended to kill, rather than nonfatally confront, Wong. To the
10
contrary, the record contains evidence showing that defendant
knew that Rivera and Gaitan wanted to punish Wong for
allegedly betraying their gang, had driven them to get guns
shortly before encountering Wong, and stopped bystanders from
interfering during the attack. (See People v. Schell (2022)
84 Cal.App.5th 437, 443 [sufficient evidence of intent where a
defendant knew that “‘dangerous weapons were being used
against [the victim], and intended to stop [the victim] from
escaping or defending himself by helping the perpetrators to
surround and hit him’”].)
Second, defendant argues that he did not act to aid or abet
the murder. For example, defendant contends that by stopping
Gomez when she tried to call off Rivera and Gaitan, he was “at
most . . . trying to keep Gomez out of harm’s way, not . . . trying
to assist” the killers. Similarly, he contends that merely driving
Rivera and Gaitan to and from the scene of the crime is
insufficient to “make appellant guilty of first degree murder[.]”
Although defendant’s interpretation of his actions is plausible, on
review for substantial evidence, we “must construe the record in
the light most favorable to the judgment and presume ‘“the
existence of every fact the jury could reasonably have deduced
from the evidence.”’” (People v. Mendez (2019) 7 Cal.5th 680,
702.) As described above, the trial court’s contrary conclusions
can reasonably be inferred from the record; therefore, they must
stand.
Third, defendant urges us to consider evidence in the
record that undermines testimony supporting the trial court’s
conclusion, including that Gomez was not entirely forthcoming
with police about her testimony and that Martinez was under the
influence of drugs when talking to police. Again, defendant runs
11
up against our standard of review, under which “our job is to
determine whether there is any substantial evidence,
contradicted or uncontradicted, to support a rational fact finder’s
findings beyond a reasonable doubt.” (Clements, 75 Cal.App.5th
at p. 298 [italics added].) Having found substantial evidence in
the record to support the trial court’s denial of defendant’s
petition, we must affirm.
B. Factual History
Section 1172.6, subdivision (d)(3) provides that the trial
court may “consider the procedural history of the case recited in
any prior appellate opinion.” The specificity of this provision
“indicates the Legislature has decided trial judges should not rely
on the factual summaries contained in prior appellate decisions
when a section [1172.6] petition reaches the stage of a full-
fledged evidentiary hearing.” (Clements, supra, 75 Cal.App.5th
at p. 292.)
Defendant argues that the trial court violated both section
1172.6 and his constitutional due process rights by “improperly
rel[ying] on this court’s prior opinion.” Defendant makes much of
the trial court’s references to the “initial notes” it made in this
matter, arguing that these notes were “derived from the prior
appellate opinion” because “the very language used by the court
closely tracks” the opinion.
But the trial court expressly said that it made the notes
“[w]hen [it] first received this file, which was some time ago.”
Read in context with the court’s later statements, it seems that
the word “file” refers to, among other things, the first CD of trial
transcripts that the prosecution filed more than 18 months before
12
the hearing. This suggests that the notes came from the court’s
initial review of the trial transcripts.6
Moreover, the trial court expressly stated that it had
“look[ed] over the records” before the hearing. And its comments
included many details that are not in the prior appellate opinion,
such as the 1988 trial having taken place in the same courtroom
as the 2022 hearing, the defendant driving Rivera and Gaitan to
the scene of the crime, and defendant working on the speakers in
his car in the lead-up to the fight.7
Overall, the record demonstrates that the trial court
probably relied on its independent review of the trial record when
making factual findings in this case; at most, it may have
borrowed language from our prior opinion “to quickly summarize
the broader factual history of defendant’s case.” (Arnold, supra,
93 Cal.App.5th at p. 392.) “In the interest of avoiding future
confusion on this issue, we note that when issuing orders from a
section 1172.6 evidentiary hearing, the trial court should make
6 The trial court did reference page numbers in its notes,
which both parties suggest refer to the page numbers of the prior
appellate opinion. We are less sure about the source of these
page numbers, as the trial court ends with a reference to page 18;
the prior appellate opinion is only 17 pages long. (Gaitan, supra,
B035498.)
7 The prior appellate opinion says that defendant went with
Rivera and Gaitan to the scene of the crime, but does not say who
drove; similarly, it notes that defendant was working on his own
automobile when Rivera and Gaitan jumped Wong, but does not
specify that he was fixing the car’s speakers. (Gaitan, supra,
B035498.) The opinion makes no reference whatsoever to the
courtroom in which the 1988 trial took place.
13
clear that it is relying on facts taken from the evidence before it
and not from prior appellate opinions.” (Arnold, supra, at p. 392.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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