People v. Hernandez CA5

Filed 4/17/23 P. v. Hernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084020
Plaintiff and Respondent,
(Merced Super. Ct.
v. No. 15CR-00084A)
VICTOR ALFONSO HERNANDEZ,
OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Merced County. Ronald W.
Hansen, Judge. (Retired Judge of the Merced Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Law Offices of Beles & Beles, Robert J. Beles, and Micah Reyner for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench, and
Cameron Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant and appellant Victor Alfonso Hernandez challenges the denial of his
petition to vacate a conviction pursuant to former Penal Code section 1170.95.1 We
reject his claim and affirm the order.
BACKGROUND
On April 26, 2016, the Merced County District Attorney filed an information
charging defendant Victor Alfonso Hernandez (defendant) and his codefendant, William
White, with several crimes. The information charged defendant with murder (count 1;
§ 187, subd. (a)) with a personal firearm use enhancement (§§ 12022.53, subd. (b) &
12022.5, subd. (a)); and two counts of home invasion robbery (counts 2–3; §§ 211, 213)
with personal firearm use enhancements (§ 12022.53, subd. (b)). The information further
alleged defendant had suffered a prior strike adjudication when he was at least 16 years
of age (§§ 667, subd. (d) & 1170.12, subd. (b)).
A jury convicted defendant on all counts and found true each of the weapon
enhancements. In a bifurcated proceeding, the trial court found the prior juvenile
adjudication/strike allegation true.
The court sentenced defendant to 35 years four months, plus 60 years to life in
prison. The determinate sentence was comprised of the following: the upper term of
nine years on count two, doubled to 18 years due to the prior strike, plus 10 years for the
gun enhancement (§ 12022.53, subd. (b)); two years on count 3, doubled to four years
due to the prior strike, plus three years four months for the gun enhancement (§ 12022.53,
subd. (b)). The indeterminate sentence was comprised of 25 years for count 1, doubled to
50 years for the prior strike, plus 10 years for the gun enhancement (§ 12022.53,
subd. (b).)
1
All further statutory references are to the Penal Code unless otherwise stated.
Appellant filed his petition under former section 1170.95, which was subsequently
amended by Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate Bill 775) and thereafter
renumbered to section 1172.6, without substantive change on June 30, 2022.
2.
On direct appeal from the judgment, this court remanded for the trial court to
determine whether to exercise its discretion under Senate Bill No. 620 (2017–2018 Reg.
Sess.) and otherwise affirmed the judgment. (People v. Hernandez (Nov. 17, 2020,
F076542) [nonpub opn.].)
On April 13, 2021, defendant filed a petition to vacate his conviction pursuant to
former section 1170.95. The court denied the petition on March 3, 2022. Defendant
appeals the denial of his petition.
FACTS
The facts, as found by the superior court, are as follows2:
“… Orlando Yepez proposed and formulated the plan for a home invasion robbery
of Juan’s home. Petitioner was a major participant in the planning. He had his two
brothers, Jose and Hugo, enlisted to carry out the robbery. Petitioner was armed with a
firearm and entered and used it in committing the robbery. Orlando began to hit Juan,
however Juan fought back and appeared to be overcoming Orlando’s attack. During the
fight between Juan and Orlando, defendant intervened and tried to hit and/or shoot Juan
with defendant’s gun. Juan and defendant then wrestled for defendant’s gun. Petitioner
then instructed Jose to stab Juan with a screwdriver. Jose attempted to do so but was
unsuccessful. During the struggle between Juan and Petitioner for defendant’s firearm,
Juan successfully pulled the trigger multiple times to empty the gun. During that process,
Petitioner was shot in the leg and Orlando was shot twice and died.
“Petitioner, his brothers, and Orlando were all known to be prone to be violent.
They had a violent history. Orlando, Juan, and Petitioner had engaged in robberies of
drug dealers who were known to have large amounts of cash. Drug dealers with large
amounts of cash are reasonably known to protect themselves, their money, and their
2 The relevant facts are those found by the superior court in the present
proceedings on the petition. However, we do note they are consistent with our summary
of the facts on direct appeal.
3.
drugs with firearms. Juan was known to have a particularly violent history. Juan and
Petitioner had been friends for many years. There were at least three firearms used
during the home invasion. White was armed with a rifle, Petitioner with a pistol, and
Orlando had a pistol. Four co-conspirators entered the home to rob Juan. The only
people in the residence were Juan and his girlfriend. Although Orlando started the fist
fight with Juan, Petitioner escalated the violence by intervening and instructing his
brother Jose to stab Juan with a screwdriver. During the fight, numerous shots were fired
from at least two different firearms. Six 45-caliber shell casings and eight 9-millimeter
shell casings were found. Petitioner was found guilty of First-Degree Murder under the
Provocative Act Doctrine. The evidence proved beyond a reasonable doubt that
defendant committed all of the following provocative acts that led to Juan shooting and
killing Orlando: Entering Juan’s home with three other armed men to rob Juan; While
Orlando was fighting Juan, defendant tried to hit and/or shoot Juan with his gun to
subdue Juan; When Juan began to wrestle defendant for defendant’s gun, defendant told
his brother to stab Juan with a screw driver.”
DISCUSSION
I. Defendant is not Entitled to a Second Evidentiary Hearing
Defendant contends he is entitled to a second evidentiary hearing because not all
provocative-act murders are ineligible for section 1176.2 relief.
Law
In 2018, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) was
signed into law. “The new law was designed ‘to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.’ ” (People v. Johns (2020) 50 Cal.App.5th 46, 58.)
“In effect, Senate Bill 1437 is a change to the substantive offense[s] of first and
second degree murder, removing the exceptions that had allowed such convictions
4.
despite the absence of malice. Effective January 1, 2019, Senate Bill 1437 made that
change by amending … sections 188 and 189 to restrict the scope of first degree felony
murder and eliminate second degree murder based on the natural and probable
consequences doctrine. (Sen. Bill 1437, §§ 2–3.) As amended, … section 188 directs
malice may not ‘be imputed to a person based solely on his or her participation in a
crime.’ (… § 188, subd. (a)(3).) Instead, ‘to be convicted of murder, a principal in a
crime shall act with malice,’ except for cases applying the narrowed felony-murder rule
in new subdivision (e) of … section 189, under which ‘[a] participant in the perpetration
or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is
liable for murder only if one of the following is proven: [¶] (1) The person was the
actual killer[;] [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree[;] [¶] [or] (3) The person
was a major participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of … section 190.2.’ (§ 189, subd. (e).)”
(People v. Johns, supra, 50 Cal.App.5th at pp. 58–59, fn. omitted, italics added in
original.)
Senate Bill 1437 also created section 1170.95, which was subsequently amended
by Senate Bill 775 and thereafter renumbered to section 1172.6. Currently,
section 1172.6, subdivision (a) provides that “[a] person convicted of felony murder or
murder under the natural and probable consequences doctrine or other theory under
which malice is imputed to a person based solely on that person’s participation in a
crime, attempted murder under the natural and probable consequences doctrine, or
manslaughter may file a petition with the court that sentenced the petitioner to have the
petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts” when certain conditions apply. (§ 1172.6,
5.
subd. (a).)3 Among the conditions is a requirement that Senate Bill 1437’s changes to
sections 188 and 189 must now preclude the petitioner’s conviction for first or second
degree murder. (§ 1172.6, subd. (a)(3).)
At the hearing on the petition, the prosecution bears the burden of proving, beyond
a reasonable doubt, that the petitioner is “guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189 made effective January
1, 2019.” (§ 1172.6, subd. (d)(3).) If the prosecution fails to carry its burden of proof,
the court shall vacate the conviction and resentence the petitioner on remaining charges.
(Ibid.)
Provocative Act Murder
“Under the provocative act doctrine, when the perpetrator of a crime maliciously
commits an act that is likely to result in death, and the victim kills in reasonable response
to that act, the perpetrator is guilty of murder.” (People v. Gonzalez (2012) 54 Cal.4th
643, 655.) Thus, “[t]he provocative act doctrine does not define a crime. [Citation.]
Rather, ‘provocative act murder’ is a descriptive term referring to a subset of intervening-
act homicides in which the defendant’s conduct provokes an intermediary’s violent
response that causes someone’s death.” (Id. at p. 649, fn. 2.)
The doctrine has two elements: “that the defendant personally harbored the
mental state of malice, and either the defendant or an accomplice intentionally committed
a provocative act that proximately caused an unlawful killing.” (People v. Gonzalez,
supra, 54 Cal.4th at p. 655, italics added.)
3
As originally enacted by Senate Bill 1437, this sentence from former section
1170.95, read: “A person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions apply:” (Former § 1170.95,
subd. (a).)
6.
Analysis
Defendant contends he is entitled to a second hearing because some provocative
act murders could be eligible for relief under section 1172.6. We disagree.
Once a valid petition has been filed, determining eligibility for relief hinges on a
single issue: whether the prosecution proved “beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (d)(3).) Those changes include the mandate that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
However, provocative act murder is not implicated by “the changes to sections
188 or 189 effective January 1, 2019.” While the provocative act murder doctrine gets its
name from its actus reus element requiring that a defendant or accomplice must have
intentionally committed a “provocative act” that proximately caused an unlawful killing,
that is not the only element of the doctrine. A murder conviction under the provocative
act doctrine also requires proof “that the defendant personally harbored the mental state
of malice.” (People v. Gonzalez, supra, 54 Cal.4th at p. 655, italics added.) Thus, the
doctrine does not “impute” malice at all, and certainly does not impute it “based solely on
[defendant’s] participation in a crime.” (§ 188, subd. (a)(3); see People v. Mancilla
(2021) 67 Cal.App.5th 854, 867–868.)
Defendant insists that Senate Bill 775 changed this analysis because it expanded
eligible petitioners to include those who were convicted of murder under any “other
theory under which malice is imputed to a person based solely on that person’s
participation in a crime.” (§ 1172.6, subd. (a).) But, as explained above, the provocative
act murder doctrine is not such an “other theory” because it does not “impute” malice at
all. It requires the defendant personally harbor malice, the opposite of imputing malice.
Defendant argues otherwise, but in doing so mischaracterizes provocative act
murder. He contends that a provocateur-accomplice’s mental state of malice can be
7.
imputed to the nonprovocateur defendant based on the latter’s mere participation in the
underlying felony during which the provocative act occurred. This is incorrect. That
scenario would run afoul of the requirement “that the defendant personally harbor[] the
mental state of malice.” (People v. Gonzalez, supra, 54 Cal.4th at p. 655.)
Defendant characterizes People v. Mejia (2012) 211 Cal.App.4th 586, as holding
that the provocative act doctrine imposes liability vicariously through the act of the
accomplice. It is true that the actus reus element of provocative act murder could be
satisfied vicariously, in that the act could be performed by an accomplice rather than the
defendant. But, for present purposes, we are concerned not with the actus reus element
but with the mental state element: malice. That element is decidedly not vicarious or
imputed. Indeed, Mejia itself makes this crystal clear, holding that as to the mental state
aspect of provocative act murder, “a defendant cannot be vicariously liable; he must
personally possess the requisite mental state of malice aforethought when he either
causes the death through his provocative act or aids and abets in the underlying crime the
provocateur who causes the death.” (Id. at p. 603, italics added.)
Consequently, we reject defendant’s premise that a nonprovocateur’s culpability
under the provocative act murder doctrine does not turn on his own mental state.
Defendant briefly asserts that the court should have made findings “with a higher
degree of particularity,” but does not cite any authority to that effect. Moreover, the only
conclusion required to deny relief was that petitioner is guilty of murder or attempted
murder beyond a reasonable doubt under California law as amended by the changes to
section 188 or 189 made effective January 1, 2019. (§ 1172.6, subd. (d)(3).) No
additional particularity is required.
DISPOSITION
The order is affirmed.
8.
POOCHIGIAN, Acting P. J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
9.