People v. Hernandez CA2/7

Filed 2/14/22 P. v. Hernandez CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 and Rob Bonta, Attorneys 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 appealed from the superior court’s
order denying his petition for resentencing under Penal Code
section 1170.95.1 He contended 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 argued 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 argued 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 conceded (as the record shows) the superior court
applied a substantial evidence standard, but the People argued
that is the correct standard.
In a prior opinion, we held the superior court applied the
wrong standard. We stated section 1170.95 required 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. We
explained that, in evaluating whether the prosecutor has met this
burden, the court must act as an independent factfinder and
determine whether the evidence establishes the petitioner would
be guilty of murder under the law as amended by Senate Bill
No. 1437. Therefore, we reversed the superior court’s order
denying Hernandez’s petition and directed the superior court to
1 Statutory references are to the Penal Code.
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make a determination under section 1170.95, subdivision (d)(3),
applying the correct, beyond-a-reasonable-doubt standard.
The People filed a petition for review. The Supreme Court
granted review and transferred the case to us with directions to
vacate our decision and reconsider the matter in light of
amendments to section 1170.95 by Senate Bill No. 775
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2), which, among
other things, confirmed that the standard of proof at the hearing
on an order to show cause under section 1170.95 is proof beyond a
reasonable doubt. The People filed a supplemental brief stating
that the superior court applied an erroneous standard, that “[i]t
is unclear based on the record here that the error was harmless,”
and that “reversal and remand for a new hearing under the
correct standard is appropriate”
The Supreme Court directed us to reconsider the appeal in
light of Senate Bill No. 775. That law, like our prior opinion,
provides that the standard of proof at the hearing on the order to
show cause is proof beyond a reasonable doubt and that a
“finding that there is substantial evidence to support a conviction
for murder, attempted murder, or manslaughter is insufficient to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.” (§ 1170.95, subd. (d)(3).) We agree with the
People that the superior court erred in not applying this standard
and that the error was not harmless.
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Disposition: The superior court’s order denying
Hernandez’s petition is reversed, and the superior 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.
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