Opinion
F084888
09-11-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVIE HERNANDEZ, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, 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 Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F22903338 F. Brian Alvarez, Judge.
Vanessa Place, under appointment by the Court of Appeal, 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 Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
INTRODUCTION
The underlying facts are neither in dispute nor relevant to this appeal, so we need not detail them here. Suffice it to say that in August 2022, a jury convicted appellant Davie Hernandez of committing eight offenses and found several enhancing allegations true, all of which arose out of a single February 2021 incident: attempted murder (Pen. Code, §§ 664 &187, subd. (a); count 1), with a finding he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); shooting at an occupied motor vehicle (§ 246; count 2); three counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3, 4, and 5), with three individual gun-use findings (§ 12022.5, subd. (a)); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 7); and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 8).
All undesignated statutory references are to the Penal Code.
A count 6, which alleged discharge of a firearm with gross negligence (§ 246.3, subd. (a)), and a deadly weapon use enhancement (§ 969f) were dismissed before the case went to the jury.
In a bifurcated trial, the jury also found that Hernandez had previously suffered a prior conviction for carjacking with gun-use and gang enhancements (§§ 215, subd. (a), 12022.53, subd. (b) &186.22(b)(1)(c)), and that this prior conviction was both a serious felony (§ 667, subd. (a)(1)), and a "strike" under the Three Strikes Law (§§ 667, subds. (b)-(i) &1170.12, subds. (a)-(d)). The trial court sentenced Hernandez to a determinate term of 31 years, eight months.
Hernandez appeals, claiming:
(1) The judgment must be reversed and remanded for resentencing because the prior conviction was not a strike or a serious felony.
(2) His felon-in-possession of a firearm conviction must be reversed because California's statutory prohibition violates the Second Amendment to the United States Constitution.
DISCUSSION
I. The Prior Conviction:
A. Setting the Stage:
Prior to sentencing, Hernandez brought a motion to strike the serious felony and prior strike allegations. Both were based on a prior conviction in Tulare County superior court number VCF304167A (the Tulare case) where, in 2015, Hernandez had entered a no contest plea and admitted two enhancing allegations. The motion was based on two grounds.
The first, which was never discussed beyond its appearance in an isolated heading in his moving papers, was that Hernandez's "lack of understanding of the proceedings [in the Tulare case] is good cause for the withdrawal of his no contest plea." (Capitalization omitted.)
Hernandez has not renewed this claim on appeal, so we deem it abandoned.
The second ground was that the conviction in the Tulare case did not constitute a valid prior because no Proposition 57 juvenile transfer hearing was ever held in Tulare County juvenile court despite the fact Hernandez was only 15 years old on the date of the offenses charged in that case. As such, he claimed the Tulare County adult court "did not have jurisdiction to sentence" him in that case in 2015.
However, Proposition 57 was not approved by the voters until November 2016, well after Hernandez's original October 2015 plea and sentence. Based on then-applicable pre-Proposition 57 law, the Tulare adult court had "jurisdiction" over both Hernandez and the direct-filed adult court case in 2015.
Other than relying on the People's trial exhibits that had been admitted to prove the prior conviction to the jury in the current case, Hernandez offered nothing additional to support his claim that no Proposition 57 transfer hearing was ever held in the Tulare case; trial counsel merely argued it at the motion hearing. Therefore, the only evidence Hernandez offered to the trial court in support of his motion to strike the Tulare case prior was People's Trial Exhibits 73, 74, 75, and 76.
Exhibit 73 contained four documents: (1) the original charging information in the Tulare case, dated June 11, 2015; (2) a November 20, 2015, minute order from the original sentencing hearing in the Tulare case; (3) the first abstract of judgment in the Tulare case, dated November 23, 2015; and (4) an October 22, 2015, minute order showing Hernandez's no contest plea, enhancement admissions, and waiver of rights in the Tulare case. Exhibit 74 contained two documents: (1) a September 28, 2020, minute order from Tulare County superior court, case number VHC373171, a subsequent Tulare County habeas corpus case more fully discussed below (the Tulare writ case), where, after the "People and Defense enter[ed] waivers as stated on the record," Hernandez's original 2015 sentence was recalled under then-section 1170, subdivision (d), and he was resentenced; and (2) an October 21, 2020, minute order from a later hearing in the original Tulare case where Hernandez's custody credits were updated and awarded. Exhibit 75 was an October 6, 2020, second abstract of judgment in the Tulare case, issued after the recall and resentencing on September 28, 2020, described in Exhibit 74. Exhibit 76 was the section 969b packet of records from the California Department of Corrections and Rehabilitation, which included Hernandez's photograph, fingerprints, chronological prison movement history, and another copy of the second abstract of judgment found in Exhibit 75.
The trial court denied Hernandez's motion, finding that based on the evidence that Hernandez presented, there was an insufficient showing that "there was a lack of a fitness [sic] hearing or that the Tulare County Superior Court was deprived of fundamental jurisdiction or subject matter jurisdiction over Mr. Hernandez or his conducts...."
On appeal, Hernandez again contends that the prior conviction in the Tulare case did not qualify as either a strike or a serious felony prior. Flipping the burden of proof - even though he was the moving party at the motion hearing and the trial court had found his evidence insufficient regarding whether there was a transfer hearing - he claims that the trial court erred because "there was no evidence that a juvenile fitness [sic] hearing was conducted" in the Tulare case. (Italics added.)
However, there is more to our inquiry. The resolution of the question of the prior conviction's validity depends not only on whether Hernandez presented sufficient evidence to the trial court to show that no Proposition 57 transfer hearing was ever conducted in Tulare County juvenile court, but also, even if no hearing was held, why not?
B. Standard of Review
The People correctly point out that a judgment challenged on appeal is presumed correct, that it is an appellant's burden to affirmatively demonstrate prejudicial error, and that any uncertainty in the record must be resolved against the appellant. Here, the trial court ruled that Hernandez's evidentiary showing at his motion to strike the prior was insufficient. From these two premises, the People conclude that Hernandez has not met his appellate burden to affirmatively provide a record showing the trial court's sufficiency ruling was error. (See People v. Coley (1997) 52 Cal.App.4th 964, 972 ["appellant bears the burden of perfecting the appeal and showing error and resulting prejudice"].)
Hernandez instead jumps from the trial court's sufficiency ruling to a legal conclusion that the prior conviction was "invalid as a matter of law." In essence, he sidesteps the standard of review question and instead collaterally attacks the prior conviction itself, never addressing the trial court's evidentiary ruling or, more importantly, fully discussing the underlying facts.
We find the People have the better argument.
The prosecution had the initial burden of proving all of the elements of the alleged prior conviction allegations beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082 (Miles).) That burden was met when the jury returned its true findings.
The defense then challenged those findings in the motion to strike, alleging the prior conviction was legally invalid because, factually, there was nothing in the People's trial exhibits to show that a Proposition 57 transfer hearing was ever held - despite the fact none was required when Hernandez was convicted in 2015.
As we discuss below, the subsequent history of the prior conviction is quite involved, and Proposition 57 does later become relevant. However, Hernandez did not offer any evidence of that later history to the trial court; he simply asserted it. As a result, the trial court denied the motion based on the evidence it had before it, and concluded that Hernandez had failed to show the invalidity of the Tulare County prior conviction.
On appeal, we examine the entire record in the light most favorable to the judgment - specifically, to the true findings on the sentencing enhancement allegations - to ascertain whether they are supported by substantial evidence. (Miles, supra, 43 Cal.4th at p. 1083) Because this is a direct appeal, when properly framed, the core inquiry is the trial court's sufficiency of the evidence ruling, which in turn is predicated on the evidentiary showing Hernandez made - or did not make - at the motion hearing. In other words, as the moving party, Hernandez had the burden to show that the prior conviction was legally unsound. To do so he was required to provide evidence to the trial court that proved that legal invalidity, not merely to declare it.
As we shall see below, it is what happened during the 2020 resentencing hearing in Tulare County adult court that ultimately defeats Hernandez's current challenge to the prior conviction. However, this is a factual determination, not a "pure question of law," as Hernandez contends. Moreover, the key piece of evidence proving the validity of the prior is actually found in one of the People's trial exhibits Hernandez offered in support of his motion in the trial court, although neither party seems to have realized it.
C. The Tulare County Prior Conviction: Background
To fully appreciate the issue, we must look to the long and tortured history of the Tulare County prior conviction in detail. Because neither party has provided us the full background of the Tulare prior, we endeavor at the outset to reconstruct it.
Hernandez has requested we take judicial notice of one isolated portion of the "Case Detail Page" taken from the web-based superior court records of the Tulare case, which includes two pages tabbed under the title "Events." (Req. for Jud. Notice., exhibit A, pp. 5-6.) The People have not objected, and we grant the request. For completeness, however, we also take judicial notice of the rest of the Tulare County superior court's web-based records, both from the Tulare case itself and from Hernandez's 2018 habeas corpus petition in Tulare Superior Court case number VHC373171 (the Tulare writ case). Similarly, we also take notice both of our own records from Hernandez's original direct appeal in the Tulare case, and our records and those of the California Supreme Court from the Tulare writ case: Hernandez v. Superior Court (Pfieffer) F079256, June 5, 2019 (Pfieffer I); and Hernandez v. Superior Court (Pfieffer) S256504, August 14, 2019 (Pfieffer II). (Evid. Code. §§ 452, subd. (d), 459.) Even so, we are mindful that with the exception of one minute order in the Tulare writ case records - from the September 28, 2020, recall and resentencing hearing in People's Exhibit 74 - none of these other judicially noticed court records was before the trial court at the motion hearing in 2022. In our view, Exhibit 74 is the key piece of evidence referred to above, and it was in evidence in the trial court.
Hernandez was 15 years old in March 2013 when he committed a personally-armed carjacking for the benefit of his criminal street gang. He was charged as an adult in Tulare County superior court under former Welfare and Institutions Code section 707, subdivision (d)(1), which at the time allowed prosecutors to directly file such cases in adult court, completely bypassing the juvenile court. No "fitness hearing" or "transfer hearing" from juvenile court to adult court was held because at that time none was necessary.
In October 2015, now 17-year-old Hernandez pled no contest to carjacking (§ 215, subd. (a)), and admitted two enhancing allegations; namely, that he committed the crime for the benefit a criminal street gang (§ 186.22, subd. (b)(1)(c)), and that he personally used a firearm during the commission of that crime (§ 12022.53, subd. (b)). In exchange for his plea and admissions, seven other substantive counts and their enhancing gang and gun-use allegations were dismissed. In November 2015, the court sentenced Hernandez to an aggregate determinate term of 29 years, comprising nine years for the carjacking plus 10 years each for the two enhancements.
In the 2015 plea colloquy, the court advised Hernandez that he was pleading to a strike: "THE COURT: And it is a strike. Do you understand that? [¶] [Hernandez]: Yes, sir."
We affirmed the judgment in People v. Hernandez (May 24, 2017, F073008) [nonpub. opn.], 2017 Cal.App. Unpub. LEXIS 3540 (Hernandez).) The remittitur issued on July 24, 2017, and Hernandez did not seek any further review.
Meanwhile, "[o]n November 8, 2016, the electorate passed Proposition 57, and it took effect the next day." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 (Lara).) Proposition 57" 'amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors ... c[ould] still be tried in criminal court, but only after a juvenile court judge conduct[ed] a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor c[ould] be rehabilitated.'" (Id. at p. 305.) Thus, "[o]nly if the juvenile court transfer[red] the matter to adult court c[ould] the juvenile be tried and sentenced as an adult." (Id. at p. 303.) Proposition 57's transfer hearing prerequisites retroactively applied to all non-final judgments where a minor had earlier been lawfully direct-filed in adult court, including Hernandez's Tulare case, the appeal from which was still pending in this court at the time. (Hernandez, supra, F073008; see Lara, supra, 4 Cal.5th at p. 309.)
After Proposition 57, "district attorneys could request to transfer only two categories of minors - (i) 16 and 17 year olds alleged to have committed a felony and (ii) 14 and 15 year olds alleged to have committed a specified serious or violent felony." (B.M. v. Superior Court (2019) 40 Cal.App.5th 742, 752; see Welf. & Inst. Code, former § 707, subd. (a)(1), as amended by Prop. 57, Gen. Elec. (Nov. 8, 2016) § 4.2, eff. Nov. 9, 2016; see also Welf. &Inst. Code, former § 707, subd. (b)(1)-(2).) Nonetheless, among these "specified" qualifying offenses were Hernandez's in the Tulare case: carjacking, with the personal use of a firearm, when committed for the benefit of a criminal street gang. (See Welf. & Inst. Code, former § 707, subd. (b)(17), (21) & (25).)
In 2018 the Legislature further amended the relevant statutes and, effective January 1, 2019, juvenile courts were prohibited from transferring almost all cases involving minors under the age of 16 to adult court; the only exception did not apply to Hernandez. (See Welf. &Inst. Code, § 707, subd. (a)(1)-(2), as amended by Stats. 2018, ch. 1012, § 1 (Senate Bill No. 1391); O.G. v. Superior Court (2021) 11 Cal.5th 82, 87 [Senate Bill No. 1391 was "a permissible amendment to Proposition 57"].))
In October 2018, Hernandez filed a petition for writ of habeas corpus in Tulare County superior court (the Tulare writ case), seeking relief in light of Proposition 57. Senate Bill No. 1391's amendments had not yet taken effect, and Hernandez did not mention the new legislation at that time. In April 2019, the superior court denied the writ on the ground that Proposition 57 only applied to defendants whose convictions were not final, and Hernandez's conviction was final in 2017.
In May 2019, Hernandez filed a petition for writ of mandate in this court challenging that denial, which we summarily denied. (Pfieffer I, supra, F079256, June 5, 2019.) Hernandez petitioned for review, and the Supreme Court granted review and transferred the matter back to us with directions to vacate our order denying writ relief and instead issue an alternative writ with respect to Hernandez's Proposition 57 claim, citing Lara, supra, 4 Cal.5th at p. 310. (Pfieffer II, supra, S256504, August 14, 2019; see also People v. Padilla (2022) 13 Cal.5th 152, 158 (Padilla) [Prop. 57 applies retroactively during resentencing of petitioner whose previously final sentence was vacated in habeas corpus proceeding].)
The cited passage from Lara outlines how a retroactive Proposition 57 transfer hearing should be conducted on remand: The" 'conviction and sentence are conditionally reversed and ... the juvenile court [is ordered] to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer [defendant's] cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [defendant] to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then [defendant's] convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred [defendant] to a court of criminal jurisdiction, then it shall treat [defendant's] convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.'" (Lara, supra, 4 Cal.5th at p. 310.)
On August 22, 2019, we vacated our denial of Hernandez's writ petition in Pfeiffer I and issued an alternative writ of mandate directing the Tulare County superior court to vacate its earlier ruling denying Hernandez writ relief or show cause why the requested relief should not be granted. (Pfieffer I, supra, F079256, Aug. 22, 2019.)
On August 26, 2019, Tulare County superior court Judge Kathryn Montejano vacated the superior court's April 15, 2019, ruling denying Hernandez's writ petition, and ordered the matter calendared for a transfer hearing in Department C of the Tulare County juvenile court on September 9, 2019. We received a copy of that order on August 27, 2019, and on September 11, 2019, we discharged the alternative writ and dismissed the petition. (Pfieffer I, supra, F079256, Aug. 27, 2019 &Sept. 11, 2019.) Notably, the lead case caption on Judge Montejano's August 19 order is under the Tulare writ case number, not the original Tulare case number.
The Tulare case records from September 9, 2019, show that in a hearing before juvenile court Judge Hugo Loza in Department C of that court, the "Transfer Hearing Setting (Prop 57/SB1391)" was taken "Off Calendar-B/F Court Date."
This is the first time any reference is made to Senate Bill 1391.
On September 17, 2019, the matter was back before Judge Montejano in adult court for a "Hearing: Other - Reconsideration ruling," where it was then "Continued (Orders Made)" to an unspecified date. Other than a later February 25, 2020, entry noting that the superior court had received a "Document Other Letter to Judge from [Hernandez] about SB1391," no further entries appear in the Tulare case records until September 28, 2020. We therefore must return to the Tulare writ case records to fill in the gap.
It turns out that back on September 6, 2019, the district attorney had filed a "Motion to Reconsider" in Judge Montejano's court, and on October 25, 2019, he filed a formal "Return to the Petition for a Writ of Habeas Corpus." Similarly, on August 5, 2020, Hernandez's attorney finally filed a "Denial and Exception (Traverse)" to the district attorney's Return.
From September 9, 2019, when the Proposition 57 transfer hearing was taken off-calendar in juvenile court, until September 18, 2020, the Tulare writ case records show the writ matter was continued 14 times on motions of the parties and of the superior court. Also, in June 2020, the matter was moved from Judge Montejano's court in Department 10 to Judge Nathan Leedy's court in Department 14 of the superior court. This not only explains the extended time gap in the Tulare case, but also why the originally-set transfer hearing in juvenile court was taken off-calendar on September 9, 2019. The habeas corpus proceeding had been reopened and was being formally litigated, most likely because of intervening Senate Bill 1391.
The Tulare writ case records then show that on August 10, 2020, Hernandez was ordered transported from state prison to Tulare County superior court. Finally, on September 28, 2020, a resentencing hearing was held before Judge Leedy in Department 14, where now 22-year-old Hernandez's original 29-year sentence from 2015 was recalled under then-section 1170, subdivision (d). (Exhibit 74.)
In September 2020, former section 1170, subdivision (d) addressed recall and resentencing procedures for state prison inmates. (Section 1172.1 is the current version of the statute.) A court could only recall a sentence on its own motion within 120 days of the date of commitment. (Former § 1170, subd. (d)(1).) Even so, a court could "at any time upon the recommendation of . _ the district attorney of the county in which the defendant was sentenced, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Ibid., italics added.)
Significantly, this recall and resentencing hearing was held in the Tulare writ case, not the Tulare case, and the minute order found in People's Exhibit 74 in the current case confirms it was a hearing regarding "Habeas Corpus [¶] Re-Sent PC1170d." Thus, the final disposition of Hernandez's 2018 petition for habeas corpus relief in the Tulare writ case was that the "Petition [was] Granted After Hearing ... on 9/28/2020," and the writ relief Hernandez received was the recall of his 2015 sentence, a resentencing, and a release from custody. (See Exhibit 74.)
To reiterate: the Tulare writ case originally involved a single issue: a Proposition 57 transfer hearing. Crucially, it was at this final hearing in the writ case that the "People and Defense enter[ed] waivers as stated on the record." (Exhibit 74, italics added.) Based on everything leading up to this September 2020 hearing, the only reasonable inference to be drawn is that what was waived at that hearing was Hernandez's right to juvenile court treatment.
Hernandez has never mentioned these "waivers," either in the trial court or here, what they entailed, or what was "stated on the record" at that hearing in the Tulare writ case. Even though he requested we take judicial notice of one isolated document from the Tulare case records, he did not request we consider any of the records from the Tulare writ case, even though it was in that case that the transfer hearing was originally ordered, that the crucial September 28, 2020, hearing was held, and where Hernandez entered his "waivers" and was resentenced.
Further supporting this inference, the record in the current case also shows that a new - undeniably favorable - resentencing agreement had been reached where Hernandez's original 29-year sentence was recalled, and he was resentenced to a three-year term for the carjacking with sentencing on both enhancements stricken. (Exhibits 74 and 75.) Because Hernandez had been in custody since 2013 on the Tulare case, this was a credit-for-time-served sentence, Hernandez was ordered immediately released from custody, and told to report to parole authorities within 24 hours. (Exhibit 74.)
The new three-year term in the Tulare case was to be served consecutive to a four-year sentence on an unrelated case from Kings County Superior Court, case number 17CM4067A. According to the probation officer's pre-sentencing report in the current case, the Kings County conviction involved a 2017 assault with a deadly weapon committed while Hernandez was in prison, an offense that mandates a term of two, four, or six years consecutive to any other sentence he was serving. (See § 4501, subd. (a).) However, at an October 21, 2020, supplemental hearing in the Tulare case, not the writ case, Hernandez was awarded 3,583 total days of custody credits, more than his seven-year aggregate sentence. The probation officer's report in the current case confirms that Hernandez was released from prison to a two-year parole term on October 13, 2020, and had already been assigned to a parole agent.
Furthermore, since the 2020 recall and resentencing hearing was held more than 120 days from Hernandez's original 2015 commitment, we infer that pursuant to then-applicable section 1170, subdivision (d), the recall was based on the recommendation of the district attorney. Thus, the new sentence was based on a new agreement between Hernandez and the Tulare County prosecutor to resolve the habeas corpus petition whereby Hernandez would waive his right to juvenile court treatment in exchange for recalling his 29-year sentence and being resentenced to the credit-time-served three-year term in adult court.
The record contains nothing to negate these inferences and Hernandez has studiously avoided any mention of his favorable resentencing deal, either here or in the trial court. Similarly, no appeal was taken from that 2020 resentencing judgment in the Tulare case and no collateral attack was made on the resolution of the habeas corpus petition in the Tulare writ case, Proposition 57/Senate Bill 1391-related or otherwise, until his motion to strike the prior in the current case.
Returning to the current case, Hernandez brought his motion to strike the jury's true findings on the serious felony and strike allegations based on his prior conviction in the Tulare case. Trial counsel argued the Tulare case prior was invalid because no valid Proposition 57 transfer hearing was ever held in Tulare County juvenile court despite the fact Hernandez was only 15 years old on the date of his 2013 offenses in that case. He argued the adult superior court in Tulare County did not have "jurisdiction" in 2015 to take a plea and sentence Hernandez in that case.
At the motion hearing Hernandez's counsel provided no court records, transcripts, or live witness testimony about the 2020 resentencing in the Tulare writ case to the trial court to show what happened - or what did not happen - in Tulare County. Instead, defense counsel simply asserted:
"[Defense Counsel]: [Hernandez] never went back to Juvenile Court at all and they never did a fitness hearing at all. And all they did was they went back to the adult Superior Court and said, okay, we 're gonna - we 're gonna release you ... if you basically re-enter the plea of guilty and then that will be the end of it, you're on parole." (Italics added.)
And again later:
"[Defense Counsel]: Mr. Hernandez went into a court that he was not really supposed to be in at all. He was not supposed to be in that Adult Court at all, and he never got to [the juvenile] court. That's a jurisdictional issue ... [that] can be brought up at any time ... [and] I think that all the evidence that's needed is in evidence here in front of this Court."
Counsel conflated the Tulare case and the Tulare writ case. Our order to show cause was not directed to the juvenile court; it involved a habeas corpus proceeding Hernandez had initiated in the superior court. Moreover, as we have seen, the transfer hearing date originally set in juvenile court had been vacated and the hearing was postponed so that additional habeas corpus proceedings could proceed in superior court to reconsider the People's opposition, and perhaps also explaining the two references to Senate Bill 1391, which by then was in effect.
Defense counsel did not refer to where in the People's trial exhibits support for these assertions could be found, let alone identify who "they" or "we" were, or what "basically re-enter[ing] the plea" meant. Indeed, there is nothing to suggest that Hernandez ever withdrew and "re-entered" his original plea in the Tulare case. Instead, as we have seen, it was his sentence that was recalled on the recommendation of the prosecutor, and he was resentenced. Moreover, the resentencing hearing occurred in the Tulare writ case, so Hernandez's initial plea and admissions in the original Tulare case were not before the superior court in 2020 or affected in any way.
In arguing against the motion to strike the prior, the prosecutor stated:
"[T]he People's initial burden [of establishing the validity of the prior conviction] has been satisfied by way of the trial and jury findings. The Defense bears the burden at this time by [a] preponderance.... I'm not certain that the exhibits that the Court has . accepted for purposes of this motion, at this time, are sufficient to demonstrate that [the Tulare adult court] lacked jurisdiction to hear the [Tulare case resentencing]. I'm . unfamiliar with the way in which that issue was handled in Tulare Court. There is no transcript that's been provided to the Court. The Defense attorney that represented Mr. Hernandez in that matter has not testified. I'm not certain that [the Tulare] Court - even in Adult Court sitting as a Juvenile Court potentially could not have disposed of these issues potentially. So, I just don't believe that the burden has been satisfied. In other words, what I'm saying is that there appears to be a lack of sufficient information for this Court to make that decision at this time."
Nor did Hernandez himself, who certainly had some idea of what had occurred. After all, he was present at the 2020 resentencing where he made those crucial "waivers as stated on the record."
He was correct. The only evidence Hernandez offered in support his motion to strike the prior consisted of the four People's Trial Exhibits. Hernandez pointed to nothing in those exhibits that supported his motion to strike the prior. He provided no evidence to the trial court to support his claim that no transfer hearing was ever held in Tulare County; his counsel merely alleged it orally. He did not mention or explain the "waivers" he entered in the Tulare writ case mentioned in Exhibit 74; indeed, he did not even tell the trial court there were two different Tulare cases.
D. Analysis
i. The Question of the Juvenile Transfer Hearing
To summarize: Hernandez contends the trial court erred because "there was no evidence that a juvenile transfer hearing was conducted" in the Tulare case. (Italics added.) The People respond that there "is no evidence in the appellate record that [Hernandez] was denied a (retroactive) juvenile transfer hearing." (Italics added.) Based on the terms they use, both claims are true: nothing in the record shows a transfer hearing was ever held, but at the same time nothing shows Hernandez was prevented from receiving a transfer hearing. However, if Hernandez waived his right to the transfer hearing in exchange for a recall and resentencing, with a guaranteed release from custody, both parties are still correct: a transfer hearing was never conducted, and neither was it denied, because Hernandez waived his right to juvenile court treatment at the September 28, 2020, resentencing hearing in the Tulare writ case.
On appeal Hernandez proffers no evidence to challenge the 2020 judgment; he myopically focuses instead on the original 2015 judgment, his age at the time, and Proposition 57. He vaguely refers to some of the intervening machinations in the Tulare writ case, but never addresses the ultimate outcomes in either it or the Tulare case itself. He loosely refers to "jurisdictional" defects that purportedly affect and negate the resentencing judgment, but does not ever analyze the issue or provide any authority to support his ephemeral "jurisdictional" claim.
He cites Padilla, supra, 13 Cal.5th at p. 168, but the passage cited does not address anything to do with "jurisdiction."
" 'Whether a case should proceed in juvenile or adult court "does not involve an issue of subject matter jurisdiction." [Citation.] There is but one superior court in a county, though it is divided into different departments. [Citation.] Because [appellant] was charged with a felony, the superior court had subject matter jurisdiction.'" (People v. Cardona (2009) 177 Cal.App.4th 416, 527 (Cardona).)
Hernandez does not claim he was "jurisdictionally" unable to waive his right to a juvenile court treatment and instead obtain a release from custody by means of a new adult court resentencing. (See People v. Johnson (2020) 45 Cal.App.5th 123, 131 ["an adult who is alleged to have committed an offense as a juvenile may waive the right to proceed in juvenile court"]; see also Cardona, supra, 177 Cal.App.4th at p. 527 [" '[T]he right to trial in the proper department of the superior court may be waived. "[I]t is well settled that a person who is eligible to have his or her case proceed in juvenile court may waive this right . . .."' "].) Furthermore, "[w]here one now an adult wishes to waive the benefits of juvenile court law and answer charges as an adult in a criminal court, we think such waiver should be honored almost automatically . . .." (Rucker v. Superior Court (1977) 75 Cal.App.3d 197, 201-202; cf. Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 279 ["What were contrived as protections for the accused should not be turned into fetters."].)
Nothing in our mandate in Pfeiffer I, supra, F079256, or the Supreme Court's grant and transfer order in Pfeiffer II, supra, S256504, was based on "jurisdictional" concerns; instead, both involved retroactive statutory changes made by Proposition 57. Following the Supreme's Court order, our mandate directed that Hernandez's original 2015 judgment was conditionally reversed, and Hernandez was entitled to a transfer hearing as outlined in Lara, supra, 4 Cal.5th at p. 310. Neither we nor the Supreme Court expressed anything to suggest Hernandez could not waive such a hearing and negotiate a better deal; indeed, Lara's guidance is just that: a conditional reversal.
Hernandez does not contest that he was the person who previously pled no contest in adult court to a felony with two enhancements in the Tulare case, or that the jury in the current case incorrectly found he was. He does not claim his October 2020 "waivers" at the resentencing hearing in the Tulare writ case were not knowing and voluntary, or that he was denied his right to counsel at that hearing. Neither in the trial court nor on appeal has Hernandez ever said anything about why the transfer hearing was not conducted, why he did not object at the 2020 resentencing hearing about not having had a transfer hearing, or why he never appealed the 2020 judgment or collaterally attacked it.
Rather, as he did in the trial court, he attempts to go around the 2020 judgment and make a retrospective collateral attack on the validity of the 2015 conviction by contesting the trial court's denial of his motion to vacate the jury's true findings on direct appeal, while providing no evidentiary support. This doubly-indirect collateral attack fails because he has not shown that, based on the evidence he presented - or did not present - to the trial court at the motion hearing, there were grounds to overturn the jury's true findings or the court's post-trial denial of his motion to strike the Tulare case prior on the grounds he asserted.
Put differently, although the evidence presented to the trial court did not show that a Proposition 57 transfer hearing was ever held, what Hernandez's arguments avoid is the fact that the key piece of evidence - Exhibit 74 - actually shows that no transfer hearing was held because Hernandez waived his right to that hearing in exchange for a new, very favorable, recall and resentencing in adult court. Moreover, the fact he previously raised exactly such a collateral attack in his 2018 writ petition shows his knowledge, ability, and motivation to have re-raised the issue after his 2020 resentencing. Similarly, during the 2020 resentencing hearing itself, nothing in Exhibit 74 suggests Hernandez objected to his new sentencing deal because he never received his Proposition 57 transfer hearing which, or course, was the only reason the matter was back in the Tulare County courts in the first place.
Therefore, based on the appellate record in the current case, we conclude that among the waivers made at the September 28, 2020, resentencing hearing, Hernandez waived his statutory right to juvenile court treatment in exchange for a favorable new adult court sentence. Hernandez provided nothing below - nor now on appeal - to show otherwise. We find that Hernandez failed to carry his burden to present sufficient evidence to undermine the prior conviction in the Tulare case in the trial court and has again failed now on appeal.
ii. Hernandez's New Challenges to the Strike/Serious Felony Findings
In three peripheral arguments made for the first time on appeal, Hernandez first argues that the trial court also erred in denying his motion to strike because after the sentences on the enhancements were stricken at the resentencing hearing in 2020, "[c]arjacking alone, when committed by a juvenile, did not qualify either for transfer to criminal court or qualify as a strike or as a serious prior felony conviction." In support, he cites sections 667, subdivision (d)(3)(A) &(B) and 1170.12, subdivision (b)(3)(A) &(B)(i). However, by their very terms, these sections apply only to "juvenile adjudications," not criminal convictions, and Hernandez's prior in the Tulare case was an adult criminal conviction both in 2015 and 2020. They are therefore irrelevant.
The People insist these new contentions, raised for the first time on appeal, were forfeited because they were not brought in the trial court. We need not resolve the forfeiture question because the new claims fail on the merits.
Hernandez suggests we should assume, "for purposes of this argument, that [his] 2020 resentencing [judgment] was the functional equivalent of a juvenile adjudication . . .." (Italics added.) Why or how we should make such an assumption is not supported by any authority.
In any event, the argument is circular because a conviction is not a juvenile adjudication, the statutes he cites do not apply to "functional equivalents," and the only "function" his assumption serves is to support the original assumption itself. There is no need, let alone authority, to "assume" those sections apply to anything other than what they unambiguously say they do. The argument also proves too much. Equivalence is symmetric. If we could somehow "assume" that Hernandez's Tulare County adult court prior conviction is the "functional equivalent" of a juvenile adjudication, so too we could assume that a similar juvenile court adjudication is the "functional equivalent" of an adult conviction, thereby "functionally" eliminating any difference between the two.
In a similar vein, Hernandez claims that because the gang and gun-use enhancements were stricken at the 2020 resentencing hearing, only his carjacking conviction remained, which means he would not have been eligible to be transferred to criminal court even under then-existing Welfare and Institutions Code section 707, subdivision (b)(17) &(25). He misreads the record.
When Hernandez's 2015 sentence was recalled and he was resentenced in the writ case in 2020, the "[p]unishments as to special allegations PC12022.53(b) and PC186.22(b)(1)(c) [were] stricken." (Italics added.) In other words, his original sentence was recalled, but his original no contest plea and admissions to both the enhancing allegations in the Tulare case remained. Rather, only the imposition of the sentences on the two enhancements were stricken. Indeed, nothing in former section 1170, subdivision (d)'s recall and resentencing procedures provided for anything other than sentencing modifications.
Hernandez claims that "while there is authority to strike the enhancement, there is no independent authority to strike only its penalty." Not so. "The determination of whether a prior conviction is a prior felony conviction [for a serious or violent felony] ... shall be made upon the date of that prior conviction and is not affected by the sentence imposed . . .." (§ 667, subd. (d)(1), italics added.) If a trial court was unable to strike the sentence on an enhancing allegation without also striking the true finding on the allegation itself, section 667, subdivision (d)(1) would be meaningless. (Cf. Williams v. Superior Court (1993) 5 Cal.4th 337, 357 ["An interpretation that renders statutory language a nullity is obviously to be avoided."].)
Finally, Hernandez claims that, as to the gun-use enhancement in the Tulare case, "section 12022.53 provides that its penalties 'shall be' imposed," so in the 2020 resentencing hearing, the court's "striking the punishment struck the enhancement." We disagree. When construing section 12022.53 the term "impose" "can mean impose and execute or impose and stay." (People v. Jones (2015) 236 Cal.App.4th 1411, 1417, fn. 6, italics added, citing People v. Gonzalez (2008) 43 Cal.4th 1118, 1124-1130; see People v. Alford (2010) 180 Cal.App.4th 1463, 1471 [the term" 'impose'" is "used loosely" in § 12022.53].)
Thus, forfeiture notwithstanding, Hernandez's newly minted appellate challenges to the Tulare prior conviction also fail.
II. The Constitutionality of Section 29800, subdivision (a)(1)
Hernandez next challenges his conviction for possessing a firearm by a convicted felon. He contends that California's felon-in-possession of a firearm proscription, currently embodied in section 29800, subdivision (a)(1) (29800(a)(1)), facially violates the Second Amendment to the United States Constitution. In support, he relies on New York State Rifle &Pistol Association Inc. v. Bruen (2022) 597 U.S. __ (Bruen).
A. Standard of Review
Hernandez did not raise a Second Amendment challenge in the trial court, but his claim is not forfeited because facial constitutional challenges may generally be raised for the first time on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 888-889.)
"A facial challenge to the constitutional validity of a statute .. considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.]' "To support a determination of facial unconstitutionality, voiding the statute as a whole, [Hernandez] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, [he] must demonstrate that the [statute's] provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." '" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, italics added; see Bucklew v. Precythe (2019) 587 U.S.__ [139 S.Ct. 1112, 1127] (plur. opn. of Gorsuch, J.) ["A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications."]; see United States v. Salerno (1987) 481 U.S. 739, 745 ["A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."].)
Thus," '[a] defendant challenging the constitutionality of a statute carries a heavy burden: "The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity."' [Citations.] In other words, "[c]ourts should exercise judicial restraint in passing upon the acts of coordinate branches of government; the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional.'" (People v. Bocanegra (2023) 90 Cal.App.5th 1236, 1250 (Bocanegra) [rejecting a facial Second Amendment challenge to California's assault weapon ban (§ 30605)]; see also People v. Alexander (2023) 91 Cal.App.5th 469, 480, review and depub. den. Jul. 26, 2023, S280468 (Alexander) [§§ 29800(a)(1) & 30305, subd. (a)(1), prohibiting felons from possessing firearms and ammunition, are facially valid]; In re D.L. (2023) 93 Cal.App.5th 144, 156-157, petn. for review filed Aug. 14, 2023, S281412 (D.L.) [rejecting facial challenge to § 25850 (carrying a loaded firearm on the person or in a vehicle)].)
Simply put, for Hernandez's facial challenge to the constitutionality of 29800(a)(1) to be successful, he must show that in no possible factual scenario could the statute be constitutionally applied to a previously convicted felon's firearm possession, regardless of the facts or circumstances of his or her possession, let alone merely as applied to the facts of Hernandez's current case.
In his briefing, Hernandez repeatedly - and incorrectly - labels himself as an "ex-felon," as if he were not, as the statute puts it, a "person who has been convicted of a felony." (29800(a)(1).) Whether or not 29800(a)(1)'s proscription covers "ex-felons," whatever that may mean (subsequent exonerations, full appellate reversals, pardons and commutations, or simply a person who has earnestly and successfully stopped committing any more felonies), it is clear that Hernandez was charged and convicted in count 8 as a felon, not an "ex-felon." (Contrast "ex-husband/ex-wife," or "ex-President," connoting "former" or "no longer".) The semantics do matter. There is nothing to suggest Hernandez was, after the judgments in the Tulare case and the Kings County prison-assault case, an "ordinary, law-abiding, adult citizen[]" when, in 2021, he committed the offenses for which he was convicted in the current case. (Bruen, supra, 597 U.S. at p. __ .) Nor is he an "ex-" non-law-abiding citizen. Quite the contrary. As a twice-convicted felon at the time of the multiple felony offenses he committed in the current case, Hernandez has continued to be "a non-law abiding citizen." The constitutional analysis is not affected by Hernandez's euphemistic attempt to soften that fact by characterizing himself as an "ex-felon."
B. Analysis
"Any person who has been convicted of a felony under the laws of ... the State of California ... and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." (29800(a)(1).) The Second Amendment to the United States Constitution states: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (U.S. Const., 2nd Amend.)
In 2008, the United States Supreme Court identified a constitutionally protected right to possession of handguns in one's home in District of Columbia v. Heller (2008) 554 U.S. 570, 635 (Heller). In an opinion by Scalia, J., the high court found that "a District of Columbia prohibition on the possession of usable handguns in the home violate[d] the Second Amendment to the Constitution." (Id. at pp. 573, 635.) In McDonald v. City of Chicago (2010) 561 U.S. 742 (McDonald), in an opinion by Alito, J., the court further held that "the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller," and therefore the Second Amendment "is fully applicable to the States." (McDonald, supra, 561 U.S. at pp. 791, 750.)
In Heller, the Supreme Court identified the "core" of the Second Amendment as "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (Id., 554 U.S. at pp. 634-635, italics added.) Nevertheless, the Heller Court also made clear that "the right secured by the Second Amendment is not unlimited." (Id. at p. 626.) "From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Ibid.) Thus, "[w]hile striking down [a particular District of Columbia gun-possession restriction], the Heller court [acknowledged and] reaffirmed the constitutionality of limitations on the [Second Amendment] right to keep and bear arms." (D.L., supra, 93 Cal.App.5th at p. 151.) Specifically, the Court cautioned that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession offirearms by felons . . .." (Heller, supra, 554 U.S. at p. 626, italics added.) Two years later, in McDonald, supra, the Court reiterated that Heller "did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession offirearms by felons ....'" (McDonald, supra, 561 U.S. at 768, italics added.)
In 2022, the Second Amendment's scope and limits were further defined with Thomas, J.'s opinion in Bruen, supra. The plaintiffs in Bruen had applied for unrestricted licenses to carry a handgun in public for self-defense, which were denied. (Bruen, supra, 597 U.S. at p.__ .) Under then-New York law, a person was guilty of criminal possession of a firearm while possessing" 'any firearm'" without a license, whether inside or outside the home. (Id. at p. 2122, quoting N.Y. Penal Law § 265.01-b.) Thus, a person was guilty of criminal possession of a weapon by merely possessing a loaded firearm outside their home or place of business without a license. (Bruen, supra, 597 U.S. at p. __ .) Instead, a person was required to have first obtained an unrestricted license to" 'have and carry'" a concealed" 'pistol or revolver'" in order to carry a firearm outside his or her home or place of business. (Id. at p.__ .) To get such a license, an applicant had to "demonstrate[] a special need for self-defense." (Id. at p. __ , italics added.)
The Court held that because the Second Amendment protects an individual's right to carry a handgun for self-defense both in the home and outside of the home, New York's "special need" limitation in its "licensing regime violate[d] the Constitution." (Bruen, supra, 597 U.S. at p.__ .) Notably, Bruen did not address the "longstanding prohibitions on the possession of firearms by felons," which the Heller Court had previously characterized as "presumptively lawful." (Heller, supra, 554 U.S. at pp. 626, 627, fn. 26, italics added.)
The Bruen Court concluded that New York's concealed-carry licensing regulations were unconstitutional because they "prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." (Bruen, supra, 597 U.S. at p.__ , italics added.) This initial prerequisite to the analysis is decisive: when addressing constitutionality under the Second Amendment, courts should focus on how and why historically relevant regulations might "burden a law-abiding citizen's right to armed self-defense." (Id. at p.__ , italics added.) Thus, Bruen reaffirmed Heller and McDonald and "recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense." (Bruen, supra, 597 U.S. at p.__ , italics added.) The decision did nothing to expand the scope of the Second Amendment to non-law-abiding citizens, i.e., previously convicted felons.
Thus, in Alexander, supra, Division Two of the Fourth District found that 29800(a)(1) is "facially valid because the possession of firearms ... by convicted felons is not conduct covered by the Second Amendment" for the simple reason that, as set forth in Heller, it only confers" 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'" (Alexander, supra, 91 Cal.App.5th at pp. 480, 475, original italics.) Because a felon is, by definition, "someone who has committed a crime and as such is not law-abiding," felons "are not included among the class of people afforded rights under the Second Amendment." (Id. at p. 478.)
The Alexander court also found that Bruen did not affect Heller's description of "the people" who are afforded Second Amendment rights, but "instead reaffirmed that the Second Amendment right' "to use arms" for self-defense' belongs to' "law-abiding, responsible citizens." '" (Alexander, supra, 91 Cal.App.5th at p. 478, citing Bruen, supra, 597 U.S. at p. __ .)
In People v. Odell (2023) 92 Cal.App.5th 307, 317, review den. Aug. 9, 2023, S280841 (Odell), Division Eight of the Second District also considered 29800(a)(1) and agreed with Alexander, noting: "It was no accident the Bruen majority repeated the qualifier 'law-abiding' some 13 times," because "[p]eople who have been convicted of a felony are not 'law-abiding.'" (Odell, supra, 92 Cal.App.5th at p. 317; see also Bruen, supra, 597 U.S. at p.__ [the 2nd Amendment right "has traditionally been subject to well-defined restrictions"].) Thus, the Odell court "agree[d] with [Alexander [citation]]," and similarly held that 29800(a)(1) "is constitutional." (Odell, supra, 92 Cal.App.5th at p. 317.)
In D.L., Division Two of the First District "agree[d] with Alexander and Odell that Bruen did not expand 'the categories of people who may lawfully possess a gun,' and that those convicted of a felony are squarely in a category where gun possession is off-limits due to their prior criminal conduct." (D.L., supra, 93 Cal.App.5th at p. 166, citing Bruen, supra, 597 U.S. at p.__[142 S.Ct. at pp. 2157-2158] (conc. opn. of Alito, J.).])
Most recently, Division Three of the Fourth District joined with Alexander's analysis and rejected a similar Second Amendment-based challenge to the felon in possession of ammunition statute (§ 30305, subd. (a)(1).) (People v. Ceja (Aug. 30, 2023, G061609)__ Cal.App.5th__, __[p. 1].)
Hernandez first argues that the United States Supreme Court's repeated references to firearm prohibitions for convicted felons in all three of their Second Amendment decisions were merely dicta because none addressed that specific issue and they therefore are not binding authority. However, dicta in opinions of the United States Supreme Court on issues directly involving the federal constitution are not only persuasive, they are especially so; particularly when such dicta are unambiguously restated in all three majority opinions, authored by three different high court Justices. (See Odell, supra, 92 Cal.App.5th at p. 317 ["These statements are dicta. But they are sensible and persuasive dicta. People convicted of a felony have demonstrated a capacity for poor judgment that endangers others."].)
More importantly, the holdings in Alexander and Odell are not dicta and Hernandez has not provided any precedential or even persuasive contrary authority.
Hernandez repeatedly cites then-7th Circuit judge Barrett's dissent in Kanter v. Barr (7th Cir. 2019) 919 F.3d 437, 451 (Kanter) (Barrett, J. diss. opn.), overruled on other grounds in Bruen, supra, 567 U.S. at p.__[142 S.Ct. at pp. 2126-2127]. Without even mentioning the inherent problems posed by relying on a dissent in an overruled and non-binding federal circuit court of appeals' opinion, Kanter is signally inapt because it was an as-applied challenge. (Kanter, supra, 919 F.3d at p. 438.) As a result, then-judge Barrett's discussion of supposed historical distinctions between violent and non-violent felons (Kanter was convicted of mail fraud) are irrelevant in a facial challenge. Moreover, then-judge Barrett conceded that the Second Amendment would not be violated if a dispossession statute were limited only to violent felons. (Id. at p. 438; id. at pp. 451, 467 (Barrett, J. diss. opn.) ["[D]ispossession of all felons - both violent and nonviolent - is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company's therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly," but "because the characteristic common to all violent felons is a demonstrated propensity for violence, the ban on possessing firearms is constitutional as applied to all members of that class." (Italics added.)].) Here, Hernandez's prior criminal history would certainly obviate an as-applied constitutional challenge, even if then-judge Barrett's dissent in Kanter were to be considered. In his reply brief, Hernandez offers a host of "authorities" and arguments, including parts of the dissenting and concurring opinions from the same high court cases he criticizes as mere dicta, assorted lower federal court opinions, unpublished federal district court opinions, law review articles, amicus briefs, re-hoisting judge Barrett's as-applied dissent in Kanter, and even quoting Gertrude Stein. We are not persuaded. (Cf. Bocanegra, supra, 90 Cal.App.5th at p. 1254, fn. 6 ["In his reply brief, defendant also relies on a number of advocacy-based law review articles we give little weight to."].) Closer to home, even though the decisions in Alexander, Odell, and D.L., supra, were issued after briefing was completed in this case, Hernandez has not requested to supplement his briefing to address these decisions. His silence in this regard is telling.
We observed at the outset that Hernandez's burden on a facial constitutional challenge is circumscribed by a very high standard of review. It is one he has not met here. Hernandez may raise his constitutional claim in other fora, but unless or until a higher court determines otherwise, we join our fellow courts of appeal and find 29800(a)(1) is constitutional and Bruen does not affect our conclusion.
DISPOSITION
Hernandez's request for judicial notice is granted. The judgment is affirmed.
WE CONCUR: LEVY, Acting P. J. POOCHIGIAN, J.