People v. Hernandez CA4/2

Filed 3/4/22 P. v. Hernandez CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075834
v. (Super.Ct.No. RIF132924)
RUBEN JULIO HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
General, Arlene A. Sevidal, Lynne G. McGinnis, and Elizabeth M. Kuchar, Deputy
Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
In 2012, pursuant to a plea agreement, defendant and appellant Ruben Julio
Hernandez pleaded guilty to second degree attempted murder (Pen. Code, 1 §§ 664/187,
subd. (a); count 5), which was based on the natural and probable consequences theory.
He also admitted sentencing enhancements pursuant to sections 186.22,
subdivision (b)(1), and 12022, subdivision (a)(1). In exchange, the remaining charges
and enhancement allegations were dismissed, and defendant was sentenced to 20 years in
state prison––nine years for the attempted murder, one year for the firearm enhancement,
and 10 years for the gang enhancement.
About eight years later, in 2020, defendant filed a petition for resentencing
pursuant to section 1170.95. The trial court summarily denied the petition finding
section 1170.95 did not apply to attempted murder, which was the correct result at the
time. In a prior nonpublished opinion, People v. Hernandez (June 23, 2021, E075834),
we affirmed the trial court’s order. But the Legislature since has passed and the
Governor has signed Senate Bill No. 775 (2020-2021 Reg. Sess.), which makes clear that
persons convicted of attempted murder could be eligible for resentencing relief.
1 All future statutory references are to the Penal Code.
2
Following the issuance of our prior opinion affirming the trial court’s order,
defendant filed a petition for review in the California Supreme Court (S270019). The
Supreme Court granted review, and on December 29, 2021, transferred the matter to us
with directions to vacate our prior decision and reconsider the cause in light of Senate
Bill No. 775. We vacated our decision on January 7, 2022, and allowed the parties to file
supplemental briefs.
In supplemental briefing, defendant contends, and the People correctly concede,
he is eligible for resentencing under section 1170.95, as amended by Senate Bill No. 775,
and this matter should be remanded for the superior court to reconsider his petition. We
agree. Because section 1170.95, as amended by Senate Bill No. 775, will provide
resentencing relief for individuals charged with attempted murder under certain
circumstances, we will reverse the trial court’s order and remand the matter for the court
to reconsider defendant’s petition.
II
DISCUSSION2
Before the enactment of Senate Bill No. 775, the California Courts of Appeal were
uniform in concluding that resentencing relief under section 1170.95 was limited to
murder convictions and did not extend to persons convicted of voluntary manslaughter or
attempted murder. (See, e.g., People v. Turner (2020) 45 Cal.App.5th 428, 435-436;
People v. Paige (2020) 51 Cal.App.5th 194, 201-204.) Since then, however, the
2 The factual and procedural background is not relevant to this appeal, and we
will not recount those details.
3
Legislature enacted Senate Bill No. 775, which took effect on January 1, 2022. This bill
amends section 1170.95 in various ways, and the most significant for our purposes is an
amendment that expressly permits defendants convicted of attempted murder to seek
relief. (Stats. 2021, ch. 551, § 2; see Stats. 2021, ch. 551, § 1, subd. (a) [“[T]his
legislation . . . ¶ (a) [c]larifies that persons who were convicted of attempted murder or
manslaughter under a theory of felony murder and the natural [and] probable
consequences doctrine are permitted the same relief as those persons convicted of murder
under the same theories”].)
Defendant contends and the People agree that the trial court’s summary denial of
the resentencing petition must be reversed, and the matter remanded. Having reviewed
the record on appeal, we also agree. On remand, the trial court must determine whether
defendant has stated a prima facie case for relief under section 1170.95 as to his
attempted murder conviction. (§ 1170.95, subd. (c).) If the court finds a prima facie case
is stated, it shall issue an order to show cause and hold a hearing “to determine whether to
vacate the . . . attempted murder . . . conviction and to recall the sentence and resentence
[defendant] on any remaining counts in the same manner as if [he] had not previously
been sentenced, provided that the new sentence, if any, is not greater than the initial
sentence.” (§ 1170.95 subd. (d)(1).)
4
III
DISPOSITION
The order denying defendant’s petition for resentencing under section 1170.95 is
reversed, and the matter is remanded to the superior court. Upon remand, the superior
court shall conduct further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
SLOUGH
J.
FIELDS
J.
5