Opinion
B300765
03-26-2021
THE PEOPLE, Plaintiff and Respondent, v. JORGE HERNANDEZ, Defendant and Appellant.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Nancy Lii Ladner, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA070312) APPEAL from an order of the Superior Court of Los Angeles County, David C. Brougham, Judge. Affirmed. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant Jorge Hernandez appeals from the trial court's denial of his petition for resentencing pursuant to Penal Code section 1170.95. We affirm.
Further statutory references are to the Penal Code.
II. BACKGROUND
A. Second Amended Information
On September 15, 2006, the Los Angeles County District Attorney (District Attorney) charged defendant and David Galvez by second amended information with two counts of murder. (§ 187, subd. (a).) B. July 13, 2005, Preliminary Hearing
Three police officers testified at the preliminary hearing on July 13, 2005. Much of their testimony was admitted pursuant to section 872, subdivision (b), which permits the admission of hearsay testimony by qualified law enforcement officers. The testimony at the preliminary hearing demonstrated that defendant, Galvez, and Daniel Gomez were involved in the gang-related shootings of two victims.
Defendant, also known as "Sleepy," and Galvez, also known as "Dopey," were members of the Pomona Sur Olive Street gang (Olive Street gang). Gomez, also known as "Blackie," was either an associate or member of the Olive Street gang.
The 12th Street Sharkies gang (12th Street gang) was a rival of the Olive Street gang. At the time of the murders, the two gangs were engaged in a gang war.
On the morning of March 20, 2005, defendant and Galvez approached Gomez and asked him for a ride to Washington Park, which was located in 12th Street gang territory. Gomez agreed and drove his two passengers to Washington Park. When the three arrived, they saw two individuals, C.L. and Neftali Flores, in front of graffiti that was affiliated with the 12th Street gang. C.L. and Flores flashed gang signs at defendant, Galvez, and Gomez. Galvez responded by getting out of the front passenger seat carrying a rifle. As he approached the two individuals, the other two occupants of the car yelled, "'shoot him'" and "'fuck 12th Street.'" Galvez asked C.L. and Flores where they were from and the two responded, "Nowhere." Galvez then shot Flores, killing him. Galvez got back into the car and Gomez drove away.
About four minutes later, while still in 12th Street gang territory, defendant, Gomez, and Galvez came across the second murder victim, Anthony Lopez, who was riding a bike and throwing a gang sign. Galvez and defendant directed Gomez to stop the car and Gomez complied. Galvez again got out of the car, looked at Lopez, threw up his hands, and asked, "'What's up?'" A gang expert testified that calling out "What's up?" under the circumstances of this case was consistent with issuing a gang challenge. Lopez answered, "'I don't know.'" Galvez then reached into the car, retrieved the rifle, and shot and killed Lopez as Lopez ran for cover. Galvez got back into the car and Gomez drove away from the scene.
Defendant was interviewed by the police. He admitted to being in the backseat of Gomez's car during the shootings and to seeing C.L. and Flores standing in front of graffiti associated with the 12th Street gang before the shooting. He also admitted that he saw Lopez flash a gang sign before the second shooting.
According to the testimony of a gang expert, the fact that Olive Street gang members drove into rival-gang territory and yelled "'shoot him'" and "'fuck 12th street'" indicated that the gang members were in the neighborhood with "a purpose." The expert also opined that the murders were conducted for the benefit of the Olive Street gang. C. Plea
On September 14, 2006, defendant entered a plea of no contest to both counts of murder. Defendant admitted that the murders were "committed with premeditation and deliberation." Defendant also signed a plea form in which he admitted there was a factual basis for his plea. Defense counsel stipulated that the factual basis for defendant's plea was "based upon police reports and transcripts." The court accepted the plea and sentenced defendant to 25 years to life for both counts, to run concurrently. D. Petition for Resentencing
The police reports are not part of the record on appeal and the trial court did not rely on them in denying defendant's petition.
On February 6, 2019, defendant filed a form petition for resentencing pursuant to section 1170.95. Defendant asserted, among other things, that a "complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine"; that he "pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because [he] believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine"; and he "could not now be convicted of 1st or 2nd degree murder because of changes made to . . . [sections] 188 and 189, effective January 1, 2019." Defendant requested the appointment of counsel and contended that he could not now be convicted of his crimes because: he was not the actual killer; he "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree"; and he "was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime or felony."
On February 8, 2019, the court appointed counsel to represent defendant. On May 30, 2019, the District Attorney filed an opposition to the petition, contending that Senate Bill No. 1437 (Senate Bill 1437) was unconstitutional and defendant was not entitled to resentencing because he was not prosecuted under either a felony murder or a natural and probable consequences theory of liability.
On August 16, 2019, the trial court held a hearing on defendant's petition. As an initial matter, the court found that defendant had made a prima facie showing he fell within the provisions of section 1170.95. The court then ordered the District Attorney to show cause why defendant was ineligible for relief. The District Attorney asked the court to consider the preliminary hearing transcript, defendant's plea transcript, trial transcripts from codefendant Galvez's trial, and this court's opinion affirming Galvez's conviction. (See People v. Galvez (Aug. 22, 2007, B194868) [nonpub. opn.].) The District Attorney argued that these records demonstrated, beyond a reasonable doubt, that defendant was a direct aider and abettor to the two murders and acted with an intent to kill.
Defendant did not offer any new evidence at the hearing. Instead, he objected to the admission of the record from codefendant Galvez's trial. He also objected to the admission of his preliminary hearing transcript, arguing that: (1) it contained hearsay; (2) there was no showing of unavailability of the witnesses who testified at that hearing; and (3) a different standard of proof applied at the preliminary hearing than at the resentencing hearing.
The trial court found that testimony from Galvez's trial and this court's opinion affirming Galvez's conviction were part of the record of conviction for purposes of the section 1170.95 hearing. In the event, however, that a reviewing court should disagree with the court's finding, the court made two alternative rulings: one that relied only upon the preliminary hearing transcript and defendant's plea, and one that also relied on the trial transcripts and appellate opinion in Galvez's trial. In both rulings, the court found that defendant acted with intent to kill as an accomplice and was thus ineligible for resentencing under section 1170.95.
"'[A]ccomplice' is not synonymous with aider and abettor; a perpetrator can be an accomplice." (People v. Felton (2004) 122 Cal.App.4th 260, 269; see § 1111.) We presume the trial court meant aider and abettor as it is undisputed Galvez was the actual killer.
III. DISCUSSION
A. Section 1170.95
"Senate Bill 1437 was enacted to 'amend 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.' (Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds the aforementioned section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequences theory . . . [to] 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 . . . .' (§ 1170.95, subd. (a).)
"An offender may file a petition under section 1170.95 where all three of the following conditions are met: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection[s] 188 or 189 made effective January 1, 2019.' (§ 1170.95, subd. (a)(1)-(3).)
"Pursuant to section 1170.95, subdivision (c), the petition shall include, among other things, a declaration by the petitioner stating he or she is eligible for relief based on all three aforementioned requirements of subdivision (a). A trial court that receives a petition under section 1170.95 'shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section.' (§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial court 'shall issue an order to show cause.' (§ 1170.95, subd. (c).)
"The trial court must then hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' (§ 1170.95, subd. (d)(1).) . . . . Significantly, if a hearing is held, '[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' (§ 1170.95, subd. (d)(3).) '[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' (§ 1170.95, subd. (d)(3).) 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.' (§ 1170.95, subd. (d)(3).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723-724.) B. Preliminary Hearing Transcript
Defendant contends that the trial court erred in considering the preliminary hearing at his resentencing hearing because it was not part of defendant's record of conviction and should have been excluded as unreliable hearsay under the rules of evidence. We disagree.
The Attorney General argues that the preliminary hearing transcript and plea hearing transcript demonstrate that defendant was ineligible for relief under section 1170.95 as a matter of law and defendant therefore was not entitled to a resentencing hearing. We need not consider the merits of this argument as we affirm the trial court's ruling that the prosecution met its burden of proving that defendant was not entitled to resentencing following the issuance of an order to show cause and a hearing.
The transcript of the preliminary hearing is part of the record of conviction. (See People v. Reed (1996) 13 Cal.4th 217, 223 [preliminary hearing transcript was part of defendant's record of conviction and court could rely on it to determine whether defendant's prior conviction was a "serious felony" within meaning of §§ 667, subd. (a) and 1192.7, subd. (c)].) Because section 1170.95, subdivision (c) expressly allows the prosecution to rely on the record of conviction to meet its burden of proof, defendant's contention that the court could not consider the preliminary hearing transcript at the resentencing hearing is meritless. (See People v. Perez (2020) 54 Cal.App.5th 896, 905, review granted Dec. 9, 2020, S265254 [finding that court could consider the preliminary hearing transcript as part of its second stage prima facie review under § 1170.95, subd. (c), to determine whether defendant had made prima facie showing that he was entitled to relief and order to show cause should issue].)
We also reject defendant's argument that the preliminary hearing transcript should have been excluded as unreliable hearsay. Defendant, through counsel, stipulated that the "police reports and transcripts" in this matter formed the factual basis for defendant's no contest plea. The only transcript that was part of defendant's trial court record was the preliminary hearing transcript. "[S]tipulation to a factual basis for a plea is akin to an evidentiary stipulation . . . which is conclusive without reference to additional evidentiary support." (People v. Palmer (2013) 58 Cal.4th 110, 117.) Having stipulated that the preliminary hearing transcript supplied, in part, the factual basis for the plea, defendant cannot now challenge the admissibility of that transcript at the resentencing hearing. (Ibid.)
Defendant cites People v. Gallardo (2017) 4 Cal.5th 120 to argue that a preliminary hearing transcript should not be used to demonstrate the underlying facts that give rise to defendant's conviction. People v. Gallardo involved a direct appeal rather than an appeal from a postconviction order and our Supreme Court reached its holding, in part, because the defendant did not stipulate to the preliminary hearing transcript as forming the factual basis for her plea. (Id. at pp. 123, 136.) It is therefore inapposite.
Defendant additionally contends that the trial court, by considering the preliminary hearing transcript, violated defendant's due process and confrontation rights. Specifically, defendant contends that he "had a due process right that the court would follow the mandates of the section 1170.95, subdivision (d)(3) hearing," which right was violated by the court's use of the preliminary hearing transcript. But, as we discussed above, section 1170.95, subdivision (c) expressly permits the court at a resentencing hearing to consider the record of conviction, which includes the preliminary hearing transcript. We similarly reject defendant's confrontation rights argument. First, we note that defendant had the opportunity to and did cross-examine the witnesses who testified at the preliminary hearing. In any event, "the retroactive relief . . . afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis." (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156; see also Dillon v. United States (2010) 560 U.S. 817, 828-829 [holding Sixth Amendment inapplicable to sentence modification proceedings].) C. Sufficiency of Evidence
Defendant next contends that even if the trial court properly considered the preliminary hearing transcript, substantial evidence does not support the court's denial of defendant's petition. (People v. Lopez (2020) 56 Cal.App.5th 936, 953 [applying substantial evidence standard of review to trial court's findings during § 1170.95 hearing].)
The preliminary hearing transcript, together with defendant's stipulation that the factual basis for his plea was based, in part, on the preliminary hearing, supports the trial court's finding that defendant was a direct aider and abettor in the premeditated murders and that he acted with the intent to kill. (See People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166 [finding that the transcripts from the preliminary and plea hearings "demonstrate [defendant] was convicted of second degree murder as a direct aider and abettor"]; People v. Perez, supra, 54 Cal.App.5th at pp. 905-906 ["We recognize that unless a defendant or his or her counsel stipulates to a factual basis for a plea based on the preliminary hearing transcript, . . . the magistrate's finding of probable cause at the preliminary hearing does not have the evidentiary weight of a jury's finding of guilt at trial" (emphasis added)].)
The testimony presented at the preliminary hearing demonstrated that defendant, a member of the Olive Street gang, got into a car with a fellow gang member and directed an associate of the gang to drive to rival gang territory. Galvez was armed with a rifle, which, given its size, defendant must have seen before getting into the car. Further, defendant and Gomez directed Galvez to "'shoot him'" and "'fuck 12th Street.'" This evidence supports a finding that defendant acted as an aider and abettor and with the intent to kill Flores. (See People v. Chiu (2014) 59 Cal.4th 155, 167 ["Under [direct aider and abettor] principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission"].)
Immediately following Flores's murder, defendant, Gomez, and Galvez drove away from the park but stayed in rival gang territory. By this point, defendant not only knew that Galvez was armed with a rifle but that he had used it to murder a person who appeared to be associated with a rival gang. And, when defendant saw Lopez flash gang signs, he directed Gomez to stop the car. Galvez then got out of the car and shot Lopez. The fact that this killing occurred within four minutes of the first murder, in rival gang territory, during a gang war, supports the court's finding that defendant acted as a direct aider and abettor with the intent to kill Lopez. (See, e.g., People v. Castillo (1997) 16 Cal.4th 1009, 1018 [evidence supported conviction for premeditated murder of a second victim where defendant suddenly shot first victim and then chased and fatally shot the second victim]; People v. Nguyen (2015) 61 Cal.4th 1015, 1055 [sufficient evidence to support conviction for aiding and abetting attempted murder when, during a gang war, defendant, a gang member, sat in a car behind the shooter and stared at occupants of rival-gang victim's car].)
The trial court's denial of defendant's petition, following a resentencing hearing, was supported by substantial evidence. We decline to address defendant's remaining arguments.
Having affirmed one of the court's two alternative rulings, we need not consider defendant's argument that the court erred by relying upon Galvez's trial and appellate record in issuing its other ruling.
IV. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.