People v. Hernandez CA4/3

Filed 8/8/23 P. v. Hernandez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G061921
v. (Super. Ct. No. 15CF1719)
JOSE ARTURO HERNANDEZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Lance P. Jensen, Judge. Affirmed.
David L. Polsky, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Jose Arturo Hernandez appeals the summary denial of his petition for
resentencing under Penal Code section 1172.6.1 His court-appointed counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, Anders v. California (1967) 386 U.S.
738, and People v. Delgadillo (2022) 14 Cal.5th 216, 221–222 (Delgadillo). This court
notified Hernandez that he had 30 days to file any supplemental brief deemed necessary,
or the matter may be dismissed as abandoned. (Delgadillo, at pp. 221–222.) He filed a
two-page handwritten brief arguing his convictions for attempted premeditated murder
could not stand because malice had not been proven at trial. We have examined the
record on appeal, considered the supplemental brief, and find no arguable error that could
result in a disposition more favorable to Hernandez. (Id. at p. 232.) We thus affirm.
FACTS
A summary of the underlying facts is taken from this court’s unpublished
opinion, People v. Hernandez and Pala (G054544, Nov. 28, 2018) [nonpub. opn.] (first
appeal), for background purposes. One night in 2015, Martin F. and two other
pedestrians were walking down the street in Santa Ana. A sedan pulled out from a
nearby side street, and as it passed Martin, its lights turned off. The sedan stopped and
two or three men exited the car. Seconds later, the two pedestrians ran past Martin.
Martin heard “firecrackers,” but someone else heard gunshots. Martin fell to the ground;
he had been shot once in the buttock. Shortly afterwards, law enforcement found the
sedan, with Uriel Pala alone inside. It was parked at an apartment complex where
Hernandez lived and was found. Hernandez, who owned the sedan, was later identified
as the driver.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
Hernandez was charged with attempted premediated murder (§ 187,
subd. (a), 664, subd. (a); counts 1–3 [John Doe 1, John Doe 2, and Martin, respectively]),
assault with a firearm (§ 245, subd. (a)(2); counts 4–6 [same victims, respectively]), and
battery with serious bodily injury (§ 243, subd. (d); count 7 [Martin]). The information
also alleged several enhancements: criminal street gang activity for all counts (§ 186.22,
subd. (b)); gang member vicarious discharge of firearm for counts 1–3 (§ 12022.53,
subds. (c), (e)(1)); gang member vicarious discharge of firearm causing great bodily
injury for count 3 (§ 12022.53, subds. (d), (e)(1)); and great bodily injury for counts 3
and 6 (§ 12022.7, subd. (a)).
A jury convicted Hernandez on all counts except count 3 (attempted murder
of Martin). As to counts 1–2, the jury found the attempted murders were committed
willfully, deliberately, and with premeditation (§ 664, subd. (a)). As to all convicted
counts, the jury found all enhancements true except the great bodily enhancement, which
was dismissed before closing argument. The trial court sentenced Hernandez on count 1
to state prison for a total determinate term of 29 years plus a consecutive indeterminate
term of 7 years to life. The same sentence was imposed for count 2 and was to run
concurrently with count 1. 2
In his first appeal, this court remanded for resentencing for the trial court to
exercise its discretion whether to strike the firearm enhancements, ordered the sentences
for counts 1–2 modified to reflect life terms “with the possibility of parole,” and directed
the superior court clerk to correct the abstract of judgment. In all other respects, the
judgment was affirmed. The same aggregate term was imposed at the resentencing
hearing, and the abstract of judgment was amended as directed.
2 Codefendant Pala was charged with the same counts and enhancements,
and received the same verdicts, as Hernandez. Pala also unsuccessfully petitioned for
resentencing under section 1172.6 and has filed a separate appeal (case no. G062058).
3
In 2022, Hernandez petitioned for resentencing under section 1170.95, and
counsel was appointed for him. The People filed a response, arguing the petition should
be denied. By the time the trial court ruled on the petition, section 1170.95 had been
renumbered to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) At
the prima facie hearing, the court summarily denied the petition on the ground Hernandez
was convicted of attempted murder under a direct aiding-and-abetting theory, which
required findings that he, like the shooter, acted with the intent to kill.
DISCUSSION
Because no death occurred here, we limit our discussion of section 1172.6
to attempted murder. To obtain relief under section 1172.6, Hernandez had to show he
was prosecuted for and convicted of “attempted murder under the natural and probable
consequences doctrine.” (§ 1172.6, subd. (a); People v. Saibu (2022) 81 Cal.App.5th
709, 747.) But if the record of conviction demonstrates a petitioner is ineligible for relief
as a matter of law, a court may summarily deny the petition. (People v. Lewis (2021)
11 Cal.5th 952, 970–972.)
Here, the charging document, jury instructions, and verdicts show
Hernandez was not prosecuted or convicted of attempted murder under the natural and
probable consequences doctrine. The first amended information alleges Hernandez “did
unlawfully, and with the specific intent to kill, attempt to murder” the victims. It also
alleges he did so “willfully, deliberately and with premeditation[.]” There is no mention
of “natural and probable consequences.” The jury was instructed on the general
principles of aiding and abetting (CALCRIM No. 400), direct aiding and abetting
intended crimes (CALCRIM No. 401), the elements of attempted murder (CALCRIM
No. 600), and the additional allegation that the attempted murders were committed with
deliberation and premeditation (CALCRIM No. 401). The trial court did not instruct on
aiding and abetting based upon natural and probable consequences (CALCRIM Nos.
402–403). And as reflected in the verdict forms for counts 1–2, the jury found that
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Hernandez was guilty of attempted premeditated murder and that he—while not the
shooter—was a “principal” of the crime. “‘[T]o be guilty of attempted murder as an aider
and abettor, a person must give aid or encouragement with knowledge of the direct
perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s
accomplishment of the intended killing—which means that the person guilty of attempted
murder as an aider and abettor must intend to kill.’” (People v. Nguyen (2015) 61 Cal.4th
1015, 1054.) The jury thus necessarily found that Hernandez shared the shooter’s
criminal purpose: to kill the two unidentified victims. This finding is further bolstered by
the jury’s not-guilty finding on count 3, the attempted murder of Martin. Despite the fact
Martin had been shot, the jury was able to distinguish between the intended victims and
the innocent bystander.
In his supplemental brief, Hernandez argues the attempted murder
convictions must be reversed because his “intentions were never proven” at trial. He asks
us to review his case “but to look at it from a different point of view and ask . . . why
wasn’t this proven or that piece of evidence presented[.]” That is not, however, an
argument or request he can make under section 1172.6 at the prima facie stage. (See
People v. Farfan (2021) 71 Cal.App.5th 942, 947 [“The mere filing of a section [1172.6]
petition does not afford the petitioner a new opportunity to raise claims of trial error or
attack the sufficiency of the evidence supporting the jury’s findings.].)
Because the record of conviction establishes Hernandez was convicted of
attempted murder as a direct aider and abettor, he is ineligible for section 1172.6 relief as
a matter of law. (See People v. Estrada (2022) 77 Cal.App.5th 941, 945 [petitioner
convicted of first-degree murder as aider and abettor with intent to kill ineligible for
section 1172.6 relief].) We therefore affirm the trial court’s order denying him
postjudgment relief.
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DISPOSITION
The postjudgment order is affirmed.
DELANEY, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
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