People v. Hernandez CA2/6 ( 2024 )

Filed 5/30/24 P. v. Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B323576
Cons. w/B324054
Plaintiff and Respondent, (Super. Ct. No. 2008006111)
(Ventura County)
v.
ALVINO JOE HERNANDEZ,
et al.,
Defendants and Appellants.
Brothers Alvino Joe Hernandez and Lino Felipe Hernandez
were convicted of one count of murder and three counts of
attempted murder in 2008. Each filed a petition for resentencing
in 2022 under former Penal Code1 section 1170.95 (now section
1172.6). The trial court found the jury’s “true” findings on gang
special circumstance allegations under section 190.2, subdivision
1 All statutory references are to the Penal Code unless
otherwise noted.
(a)(22) precluded Alvino and Lino2 from relief as a matter of law.
It denied the petitions without issuing an order to show cause.
We consolidated their appeals for all purposes.
We will reverse the denial as to Alvino’s murder count and
remand with instructions to issue an order to show cause and
conduct an evidentiary hearing. We express no opinion on the
attempted murder counts because his petition, and the trial
court, did not address them.
We will reverse the denial on all counts as to Lino and
remand, likewise with instructions to issue an order to show
cause and to conduct an evidentiary hearing.
FACTS AND PROCEDURAL HISTORY
Labor Day 2006 Shooting
Alvino, Lino, and Alejandro Salas belonged to the Colonia
Chiques gang in Oxnard. On Labor Day in 2006, Salas asked
Alvino to provide “back up” in a prescheduled fist fight between
the Chiques and a local tagging group called “DSK.” Alvino
agreed. He suspected the members of DSK might be armed so he
retrieved two pistols: a TEC-9 with an extended clip and a
Makarov 9mm. Alvino gave Lino the TEC-9 and kept the
Makarov for himself.
Alvino, Lino, and Salas walked to the nearby apartment
complex where the fight was to occur. They saw DSK member
Moises Lopez and his girlfriend Michele White getting out of a
car. They followed the two into the courtyard of the complex.
Moises saw the Chiques approach and called another DSK
member, Richard Gonzalez, who was in an upstairs apartment.
2 We use the first names of appellants and others who
share a last name. No disrespect is intended.
2
He asked Gonzalez to come downstairs and to bring a gun.
Moises’ brothers Abraham and Octavio went down first and were
soon joined in the courtyard by Gonzalez, who had retrieved a
pistol from a drawer.
Octavio accused Lino of hiding a weapon under his
sweatshirt. Alvino “got scared” when he saw Gonzalez reach
toward his hip. He grabbed the Makarov from his belt and fired
one shot at Gonzalez before it jammed. Lino pulled out the TEC-
9 and began firing rapidly. Abraham and Gonzalez were both hit
but managed to produce their pistols and return fire. Alvino saw
Abraham aiming his gun toward Lino. He hit Abraham in the
face with the handle of the jammed Makarov and took the gun
before fleeing.
Octavio received four gunshot wounds and died at the scene
from blood loss. Abraham and Gonzalez were struck several
times and suffered permanent injuries. White was hit in the leg.
Investigators recovered 21 expended bullet casings from Lino’s
TEC-9, one casing from Alvino’s Makarov, two expended casings
and one misfired bullet from Abraham’s .380 pistol, and six
casings from Gonzalez’s .357 pistol.
Murder and Attempted Murder Convictions
A grand jury indicted Alvino, Lino, and Salas on charges of
murder (one count) and attempted murder (three counts). All
counts included two gang special circumstance enhancements
(§§ 186.22, subd. (b)(1), 190.2, subd. (a)(22)) and alleged that a
principal discharged a firearm causing great bodily injury or
death (§ 12022.53, subds. (d) & (e)(1)). Lino’s attempted murder
charges included allegations that he personally inflicted great
bodily injury on the three surviving victims. (§ 12022.7, subd.
(a).)
3
At trial, the People argued defendants were guilty because
the shootings were the natural and probable consequences of a
conspiracy to commit battery. They asked jurors to elevate the
murder charge to first degree because they killed Octavio
“willfully, deliberately, and with premeditation” and “while lying
in wait or immediately thereafter.” (CALCRIM No. 521, § 189,
subd. (a).) The jury found all three defendants guilty on all
counts with true findings on the gang special circumstance
allegations. It found Alvino and Lino guilty of first degree
murder and Salas guilty of second degree murder. The conviction
of Salas is not at issue in this appeal.
Alvino and Lino each received a sentence of life without the
possibility of parole for the murder of Octavio Lopez, a
consecutive nine-year determinate term for the attempted
murder of Abraham Lopez, and consecutive 28-month
determinate terms for the attempted murder of Moises Lopez and
Michele White. The court imposed a consecutive term of 25 years
to life on the firearm enhancement. It stayed the gang
enhancements pursuant to section 654 and struck Lino’s great
bodily injury enhancements pursuant to section 1385. We
affirmed the convictions on direct appeal. (People v. Lino
Hernandez, et al. (June 24, 2013, B229363) [nonpub. opn.].)3
Alvino’s Petition for Resentencing
Alvino petitioned for resentencing in February of 2022. He
checked boxes stating: “A complaint, information, or indictment
was filed against me that allowed the prosecution to proceed
under a theory of . . . murder under the natural and probable
3 We granted Alvino’s and Lino’s unopposed requests for
judicial notice of the record in the direct appeal. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a).)
4
consequences doctrine”; and “I could not now be convicted of 1st
or 2nd degree murder because of changes made to Penal Code
§§ 188 and 189, effective January 1, 2019.” The petition form did
not reflect then-recent amendments to section 1172.6 that
enabled defendants to seek resentencing on convictions for
attempted murder and manslaughter. (Sen. Bill No. 775 (2021-
2022 Reg. Sess.).)
Alvino mistakenly checked box number 5, which stated, “I
was convicted of 1st degree felony murder and I could not now be
convicted because of changes to Penal Code § 189, effective
January 1, 2019.” He also checked the box stating “I was not the
actual killer” but did not check the next two, which stated he “did
not, with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer in the commission of
murder” or that he “was not a major participant in the felony or
[he] did not act with reckless indifference to human life.”
The trial court appointed counsel. The People opposed the
petition on two grounds. First, they argued the petition was
facially insufficient because Alvino did not check the two boxes
under number 5. Second, they argued the jury’s gang
enhancement findings under section 190.2, subdivision (a)(22))
precluded him from relief as a matter of law. The court agreed
with the People and denied the petition without issuing an order
to show cause. It also found Alvino “was a major participant in
the underlying felony and acted with reckless indifference to
human life.”
Lino’s Petition for Resentencing
Lino petitioned for resentencing in July of 2022. He too
used a form petition, albeit one reflecting the recent amendments
to section 1172.6. He checked boxes stating: “A complaint,
5
information, or indictment was filed against me that allowed the
prosecution to proceed under a theory of . . . murder under the
natural and probable consequences doctrine . . . , or attempted
murder under the natural and probable consequences doctrine”;
and “I could not presently be convicted of murder or attempted
murder because of changes made to Penal Code §§ 188 and 189,
effective January 1, 2019.”
The trial court appointed counsel. The People again argued
the jury’s gang enhancement findings under section 190.2,
subdivision (a)(22) precluded Lino from relief as a matter of law.
The People also argued the “true” findings on the great bodily
injury enhancements to the attempted murder charges were an
additional ground to deny Lino relief. The trial court denied the
petition without issuing an order to show cause. It found “[t]he
People prosecuted [Lino] on the theory he was the actual killer,
or, in the alternative, if he was not . . . the actual killer, that he
was a direct aider and abettor of the killing . . . by his co-
defendant [Alvino] Hernandez.” The court characterized the
verdicts as “unambiguous” in showing Lino “was not convicted on
[the] theory that intent was imputed to him by his actions in
participating in the violent incident without knowledge of the
possible outcome or by the specific intent of someone else
involved in the violence.”
DISCUSSION
Sen. Bill No. 1437 and Sen. Bill No. 775 Eliminated the Natural
and Probable Consequences Doctrine as a Basis of Liability for
Murder and Attempted Murder
Sen. Bill No. 1437 eliminated the natural and probable
consequences doctrine as a means of proving murder. (Stats.
2018, ch. 1015.) Section 188 now provides that, except when the
6
felony murder rule applies, “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.” (§ 188, subd. (a)(3).) Sen. Bill No. 775
eliminated the doctrine as a basis of proving attempted murder
as well. (Stats. 2021, ch. 551.)
Those convicted under the doctrine may petition the trial
court to vacate the conviction and resentence them. (§ 1172.6,
subd. (a).) A petition containing all required information is
allowed to move to the “prima facie” stage of the proceeding. (Id.,
subd. (c).) The court appoints counsel if requested, accepts
briefing from both sides, and holds a hearing “to determine
whether the petitioner has made a prima facie case for relief.”
(Ibid.) The court may summarily deny the petition if the record
of conviction shows the petitioner is ineligible for relief as a
matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 970-972
(Lewis).) It may consider “documents in the court file or
otherwise part of the record of conviction that are readily
ascertainable” including the charging documents, jury
instructions, verdict forms, and even transcripts of closing
argument. (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-
330, abrogated on another point in Lewis, at pp. 961-962; People
v. Lopez (2022) 78 Cal.App.5th 1, 13.)
“[A]t this preliminary juncture, a trial court should not
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.)
“[T]he trial court should accept the assertions in the petition as
true unless facts in the record conclusively refute them as a
matter of law.” (People v. Drayton (2020) 47 Cal.App.5th 965,
7
968; People v. Duchine (2021) 60 Cal.App.5th 798, 811-815.) We
review prima facie-stage denials de novo. (Lewis, at p. 961.)
Jurors Were Instructed on the Natural and Probable Causes
Doctrine and Encouraged to Convict Defendants Based on Their
Participation in a Conspiracy to Commit Battery
At trial, prosecutors characterized Lino as the “trigger
man” who fired the most shots during the confrontation with
DSK. They nevertheless urged the jury to find all three
defendants liable for Octavio’s murder as the natural and
probable consequence of a conspiracy to commit battery. The
prosecutor stated in closing: “I’m going to be explaining now the
theories of murder, how we even get there. And we get there very
directly, and it’s all based upon these defendants acting together
in concert, aiding and abetting each other because that at heart is
what they did on September 4. Once we get through the aiding
and abetting part and we’re – the natural and probable
consequences of their actions led to murder, then I’m going to tell
you why it’s first degree murder versus a second degree murder.”
After laying out each defendant’s role in the conspiracy, the
prosecutor told the jury: “Now, as I said before, this natural and
probable consequences theory leads to murder. It’s a conspiracy
to commit this battery. The Defendants are all bound by that,
their first overt act toward the commission of that crime. They’re
done. So just in terms of an analysis, you have an aiding and
abetting theory, the natural and probable consequence of
conspiracy to commit battery, you end up with what we call
second degree murder, which is the lowest level of murder. It
was murder with malice aforethought.” The prosecutor then
described how the defendants’ pre-shooting conduct constituted
“lying in wait” and warranted elevating the murder conviction
8
from second degree to first degree. She presented the same
theory of guilt for the attempted murders.
The trial court gave the jury separate but identical sets of
instructions for each defendant. This included CALCRIM 403,
which read in part: “To prove that the defendant is guilty of
murder or attempted murder using the theory that murder or
attempted murder was a natural and probable consequence of
conspiracy to commit battery, the People must prove that: [¶] 1.
The defendant is guilty of conspiracy to commit battery; [¶] 2.
During the commission of conspiracy to commit battery, a
coparticipant in that conspiracy to commit battery committed the
crime of murder or attempted murder; [¶] AND [¶] 3. Under all
the circumstances, a reasonable person in defendant’s position
would have known that the commission of the murder or
attempted murder was a natural and probable consequence of the
commission of the conspiracy to commit battery.” (Italics added.)
The instruction for murder (CALCRIM 520) likewise identified
the doctrine as a ground to find the defendant had malice
aforethought.
The jury clearly considered the doctrine as one theory upon
which they could convict Alvino and Lino of murder and
attempted murder. We must therefore determine whether the
record of conviction “conclusively refutes” the allegations in each
petition, or, as stated in People v. Curiel, whether it “conclusively
establishes every element of the offense” under a still-valid
theory such as direct liability or implied malice. (People v. Curiel
(2023) 15 Cal.5th 433 463 (Curiel).)
9
“True” Findings on the Gang-Murder Special Circumstance
and People v. Curiel
In briefing, the People contended Alvino and Lino were
precluded from relief because the jury found they intentionally
killed Octavio while active participants in a criminal street gang.
(§ 190.2, subd. (a)(22).) The People argued these findings
established as a matter of law that defendants acted with the
requisite mental state to be convicted of murder and attempted
murder under current law, despite the prosecution’s reliance on
the natural and probable consequence doctrine. The trial court,
they asserted, correctly denied the petitions without issuing an
order to show cause and holding an evidentiary hearing.
Our Supreme Court decided Curiel, supra, 15 Cal.5th 433while this appeal was pending. Curiel held that a jury’s finding
of intent to kill under section 190.2, subdivision (a)(22) “does not,
standing alone, . . . show that a petitioner . . . is liable for murder
under any valid theory.” (Id. at p. 463.) We invited the parties to
file supplemental letter briefs addressing the effect, if any, of
Curiel on this appeal. We read and considered their briefs.
The People concede that “under Curiel, the jury’s verdicts,
viewed in light of the court’s jury instructions, do not show the
jury necessarily made factual findings covering the elements of
murder” as to Alvino. The People offer no such concession as to
Lino, who they maintain “was convicted of the murder and
attempted murders as the direct perpetrator who acted with
malice aforethought.” We address the denial of their petitions
separately for this reason and others, as explained next.
Prima Facie Denial of Alvino’s Petition
The People appropriately concede Alvino is entitled to an
evidentiary hearing on his petition. The verdict forms and jury
10
instructions provide no insight into the bases of the jury’s finding
of guilt. It heard diverse and often conflicting accounts of each
defendant’s role in the shooting. The verdict forms, however, did
not require them to identify the theory used to convict each
defendant, to determine who inflicted Octavio’s fatal wounds, or,
crucially, to find Alvino aided and abetted the killing rather than
the target offense of conspiracy to commit battery. Whether the
jury took the path of least resistance to guilt—the natural and
probable consequences doctrine—or reached their verdicts using
still-valid theories of liability cannot be conclusively established
from the record of conviction. The trial court thus erred when it
denied his petition at the prima facie stage of proceedings
regardless of its reasoning.
The minute order denying the petition reveals more
problems with the decision. Alvino’s failure to check the two
boxes under item 5 was of no consequence. He was not charged
with or convicted of felony murder. The trial court’s related
finding that Alvino was indeed “a major participant in the
underlying felony and acted with reckless indifference to human
life” under section 189, subdivision (e)(3) is problematic for the
same reason. Prosecutors did not allege and did not need to
allege he participated in an “underlying felony” because they did
not charge him with felony murder. They sought his conviction
on the theory that murder was the natural and probable
consequences of conspiracy to commit battery. In addition, the
trial court cited the jury’s gang special circumstance findings
under section 190.2, subdivision (a)(22) as precluding relief under
section 1172.6. Curiel has since held otherwise.
Alvino requests we direct the trial court to issue an order to
show cause as to all counts even though his petition did not seek
11
resentencing on the attempted murder convictions. We decline.
Sen. Bill No. 775 went into effect nearly six months before the
prima facie hearing. The transcript of proceedings reveals he did
not seek to amend his petition or even mention the attempted
murder convictions at the time. The trial court did not address
them in its denial order. As such, the issue is not properly before
us. We leave the trial court to decide on remand whether Alvino
may amend his petition to include these additional allegations
before the evidentiary hearing.
Prima Facie Denial of Lino’s Petition
The People contend Lino is ineligible for relief as a matter
of law because he “was prosecuted on the theory that he was the
direct perpetrator” and did not dispute evidence that he fired the
TEC-9. Regardless of how prosecutors described Lino’s role in
the shooting, or the quantity of evidence pointing to him as
Octavio’s actual killer, the jury did not make factual findings on
this issue. They received identical verdict forms for each
defendant on the murder count. We are again left to speculate
whether they based Lino’s conviction on a theory of direct
liability, direct aiding and abetting, or the natural and probable
consequences doctrine based on a conspiracy to commit battery.
The trial court’s order denying Lino’s petition simply assumes his
conviction was based on the first two theories while ignoring the
prominence of the third in closing argument (and verdict forms).
The decision appears grounded not on the record of conviction,
but on the trial court’s view that the evidence weighs heavily in
favor of Lino’s conviction on still-valid theories. The strength of
Lino’s request for resentencing should not bear on the court’s
analysis at this early stage. Our Legislature, the Supreme Court
12
reminds us, set the prima facie bar “‘intentionally and correctly
. . . very low.’” (Lewis, 11 Cal.5th at p. 972.)
The People contend Lino was also ineligible for relief
because jurors found true allegations that he personally inflicted
great bodily injury (GBI) on the three attempted murder victims.
(§ 12022.7, subd. (a).) This causal link to the victims’ physical
injuries may have justified a prima facie denial if the instructions
and verdict forms established the jury used a theory of direct
liability to convict him. (See, e.g., People v. Harden (2022) 81
Cal.App.5th 45, 55-56 [great bodily injury finding meant jury
determined petitioner, the sole defendant, strangled the victim;
jurors instructed on no alternative theories of murder].) They do
not. The GBI finding means Lino performed the criminal act but
does not prove he harbored the required mental state. “Section
12022.7 does not require that the defendant intend to inflict
GBI.” (People v. Elder (2014) 227 Cal.App.4th 411, 424.)
DISPOSITION
The judgment is reversed. On remand, we direct the trial
court to issue orders to show cause and to conduct evidentiary
hearings for appellants as provided in section 1172.6, subdivision
(d). We express no opinion on their entitlement to relief.
NOT TO BE PUBLISHED.
CODY, J.
I concur:
GILBERT, P. J.
13
YEGAN, J., Dissenting:
I respectfully dissent. The result reached by the majority
opinion is at variance with common sense. In the last several
months, I have been concurring in the result reached by our
opinions requiring that the superior court conduct evidentiary
hearings under compulsion of the strict letter of California
Supreme Court authority. I have even authored opinions
requiring an evidentiary hearing where appropriate. Our
Supreme Court has never spoken to the California Constitution’s
mandate not to reverse unless there has been a miscarriage of
justice. Another district of the Court of Appeal has now held that
resentencing errors are reversible only if there is a miscarriage of
justice pursuant to the California Constitutional mandate. I once
again implore the Supreme Court to grant review and hold that
resentencing errors are subject to the California Constitutional
mandate. (See People v. Arreguin (2023) 89 Cal.App.5th 58, 63-
64 (conc. opn. of Yegan, J.) and discussion, infra.) I am familiar
with the authorities relied upon by the majority opinion. But the
application of these rules leading to reversal, in the presenting
situation, borders on being ridiculous. There is no miscarriage of
justice here. Reversal is an exaltation of form over substance.
The objective reader will make up his or her own mind.
Two rival criminal street gangs agreed to fight at a given
time and place. Appellants armed themselves with a 9mm Tec-9
machine gun and a 9mm Makarov pistol. Rival gang members
also brought firearms to the fight. For extra firepower, one of the
appellants used an extended large capacity magazine on the Tec-
9. These gang confrontations are not conducted under the
Queensberry rules of fighting. Based upon experience, logic, and
the behavior of criminal street gangs in general, this was a recipe
for death and that is exactly what happened. A rival gang
member was murdered by appellants. Two other rival gang
members were wounded in the gun battle. The apparent reason
that there was no further body count at the morgue is that the
Makarov jammed after one shot. That there were not more
deaths is not attributable to a lack of effort. These are the
historical facts which cannot be changed by any evidentiary
hearing or any type of legal legerdemain. This can only be
described as murder both before and after the legislative changes
to the murder rules. Notwithstanding the murder instructions
given at the jury trial, I am waiting for an explanation how these
appellants did not commit murder under present statutes.1
Appellants falsely checked the box that they cannot be
presently convicted under existing California murder law. This
would be laughable except that the majority opinion excuses this
major flaw without discussion. It orders a meaningless
evidentiary hearing for appellants to attempt to whittle down
their sentences. Does the Legislature intend that the changes to
the murder statutes allow armed gang members who use and
discharge firearms in a gun battle, to escape punishment for
murder? To ask the question is to answer it.
The trial court’s decision to deny an evidentiary hearing
is, at best, harmless error. It is not reasonably probable that
they will prevail at an evidentiary hearing. (People v. Watson
(1956) 46 Cal.2d 818, 836; People v. Beaudreaux (2024) 100
Cal.App.5th 1227, opn. by Streeter, J., holding that errors with
1 The jury was instructed on the now jettisoned “natural
and probable consequences doctrine.” But, it was also instructed
on other valid theories of murder, i.e., “direct perpetrator” and
“direct aiding and abetting.”
2
respect to resentencing are to be judged by the familiar California
“miscarriage of justice” rule.) It is a virtual certainty that the
motions for reduction of sentences will be denied after an
evidentiary hearing. I am waiting to see the majority opinion
explain away our constitutional obligation not to reverse unless
there is a “miscarriage of justice.” Our constitutional obligation,
our oath of office, runs to the California Constitution, not a
legislative resentencing act. The judgments (orders denying
resentencing) should be affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
3
Patricia M. Murphy, Judge
David R. Worley, Judge
Superior Court County of Ventura
______________________________
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant Alvino Hernandez.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant Lino Hernandez.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Scott A. Taryle,
Supervising Deputy Attorneys General, Marc A. Kohm and
Chung L. Mar, Deputy Attorneys General, for Plaintiff and
Respondent.