Opinion
B300071
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. VICTOR HERNANDEZ, Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA067498) APPEAL from a judgment of the Superior Court of Los Angeles County, Alan B. Honeycutt. Affirmed. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
____________________
We review this appeal of a conviction for first degree murder pursuant to People v. Wende (1979) 25 Cal.3d 436.
On February 18, 2007, defendant and appellant Victor Hernandez got into an argument with the victim. A few hours later, Hernandez and his cousin purchased bullets for the cousin's handgun. Hernandez and the cousin returned to the restaurant where the victim was working. Hernandez entered the restaurant, walked up to the victim, and tapped him on the shoulder. When the victim turned around, Hernandez shot him nine times in the chest and neck area. Video surveillance at the restaurant captured the murder and Hernandez admitted to police he had shot the victim. In June 2007, Hernandez was charged via information with murder (Pen. Code, § 187, subd. (a)). It was further alleged that Hernandez personally and intentionally discharged a firearm, which proximately caused great bodily injury and death to the victim within the meaning of Penal Code section 12022.53, subdivision (d).
It was also alleged Hernandez personally and intentionally discharged a firearm and personally used a firearm within the meaning of Penal Code section 12022.53, subdivisions (c) and (b), respectively. --------
In October 2008, Hernandez pleaded guilty to first degree murder and the firearm enhancements were stricken. Hernandez was sentenced to 25 years to life.
In May 2019, Hernandez filed a petition for resentencing under Penal Code section 1170.95. Hernandez alleged a complaint, information, or indictment was filed against him allowing the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; and he was convicted at trial of first degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine. Hernandez did not allege he could not now be convicted of first or second degree murder because of changes made to Penal Code sections 188 and 189, effective January 1, 2019. Hernandez requested the court appoint counsel for him during the re-sentencing process.
On June 11, 2019, the court issued a tentative ruling summarily denying the petition because Hernandez failed to make a prima facie showing he was entitled to relief. The court noted Hernandez's counsel in the underlying matter was on inactive status with the state bar. Accordingly, the court sent copies of the tentative ruling to the District Attorney and Public Defender offices stating the court would adopt its tentative ruling on July 1, 2019 absent a request by counsel to continue the matter.
On July 1, 2019, the court adopted its tentative ruling, noting there were no requests for a continuance.
On August 2, 2019, Hernandez filed a timely notice of appeal.
We appointed counsel to represent Hernandez on appeal. After examining the record, counsel filed an opening brief raising no issues and asking this court to review the record independently as required by People v. Wende, supra, 25 Cal.3d 436. On January 2, 2020, we advised Hernandez he had 30 days within which to personally submit any contentions or issues he wished us to consider. To date, we have received no response.
A person is liable for felony murder when a death occurs during the commission or attempted commission of another felony enumerated in Penal Code section 189, subdivision (a). (Pen. Code, § 189, subd. (e).) Under the natural and probable consequences doctrine, a person guilty of a non-homicide crime can be liable for murder if, during the commission of the non-homicide crime, a co-participant committed murder and, under the circumstances, a reasonable person would have known that murder was a natural and probable consequence of the commission of the non-homicide crime. (CALCRIM No. 402.) The felony murder rule and natural and probable consequences doctrine do not apply to cases where the defendant is the actual killer.
Senate Bill No. 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, "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." (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) § 1.) In pertinent part, Senate Bill No. 1437 created a process by which those convicted of murder under a felony murder or natural and probable consequences doctrine may petition the court for resentencing. (Ibid.) That process is codified in Penal Code section 1170.95.
In order to establish a prima facie showing for relief under Penal Code section 1170.95, a person convicted of murder under a felony murder or natural and probable consequences theory must allege he or she could not be convicted of first or second degree murder today because of the changes made to Penal Code sections 188 or 189. (Pen. Code, § 1170.95, subd. (a)(3). Here, Hernandez did not allege in his petition that he could not be convicted of first or second degree murder today. Additionally, Hernandez is not eligible for relief because he was the actual shooter. The felony murder rule and the natural and probable consequences doctrine are irrelevant to Hernandez's conviction.
We have examined the entire record and are satisfied that Hernandez's counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
WILEY, J.