Opinion
E083291
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. HERNAN HERNANDEZ, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INF063117 John D. Molloy, Judge. Affirmed.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Defendant and appellant Hernan Hernandez appeals the trial court's postjudgment order denying his petition for resentencing of his first degree attempted murder conviction (Pen. Code, §§ 664, 187, subd. (a)) under section 1172.6 (formerly § 1170.95). Appointed counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has not done so. Because defendant's counsel filed a brief raising no issues and defendant was notified by this court and his counsel that failure to timely file a supplemental brief may result in the dismissal of the appeal as abandoned and was given an opportunity to file a personal supplemental brief but failed to do so, we may dismiss the appeal as abandoned. (Delgadillo, supra, at pp. 231-232.) However, having exercised our discretion to conduct an independent review of the record, we affirm the judgment. (Ibid.)
Unless otherwise indicated, all future statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background and part of the procedural background is taken from this court's prior nonpublished opinion in defendant's direct appeal, case No. E050184. (People v. Hernandez (Nov. 30, 2010, E050184) [nonpub. opn.] (Hernandez I).)
Around 1:00 a.m. on September 20, 2008, the victim and his friend stopped for food while driving back to the victim's home after visiting friends late into the night. After getting his food, the victim encountered three men, including defendant, in the parking lot. A clash ended with defendant shooting the victim; the bullet entered the back of the victim's neck and came out near the victim's chin. Defendant drove away with his friends in his car, but was stopped a few blocks away; his car contained cocaine and the loaded and operable firearm used in the shooting. (Hernandez I, supra, E050184.)
The victim confirmed defendant had pointed a gun at him and shot him, while his acquaintance's pleaded for defendant to not shoot the victim . Defendant was only two or three feet away from the victim when defendant shot him. Defendant admitted shooting the victim, but claimed to do so because he believed the victim was going to kill him. Defendant also admitted that the cocaine later found in his car was his own. (Hernandez I, supra, E050184.)
A jury convicted defendant of attempted murder (§§ 187, 664; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), possessing cocaine while armed with a loaded, operable firearm (Health &Saf. Code, § 11370.1; count 3), and transporting cocaine (Health &Saf. Code, § 11352, subd. (a); count 4). As to the attempted murder, the jury found the attempt was willful, deliberate, and premeditated (§ 664, subd. (a)), defendant personally used a deadly weapon (§ 12022, subd. (b)(1)), defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), defendant personally and intentionally discharged a firearm and caused great bodily injury (§ 12022.53, subd. (d)), and defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The jury also found, as to the assault, that defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)), and defendant personally used a firearm (§ 12022.5, subd. (a)). (Hernandez I, supra, E050184.)
In January 2010, defendant was sentenced to an aggregate determinate term of 22 years, four months and an aggregate indeterminate term of 32 years to life.
Defendant subsequently appealed. On direct appeal, defendant contended that there was insufficient evidence to support the deliberation and premeditation finding. He also claimed that the sentences for counts 2 and 3 should have been stayed pursuant to section 654, and the section 12022.7 enhancement to count 1 should have been stayed pursuant to section 12022.53, subdivision (f). We affirmed the convictions, finding there was sufficient evidence of deliberation and premeditation, but reversed the sentence and remanded the matter with directions to resentence defendant. (Hernandez I, supra, E050184.)
Upon remand, in April 2011, the trial court resentenced defendant in accordance with our opinion from defendant's direct appeal to an aggregate determinate term of 25 plus an indeterminate sentence of life with the possibility of parole.
On December 22, 2022, defendant personally filed a form petition for resentencing under section 1172.6. In his petition, among others, he checked the box stating he could not presently be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019, and requested appointment of counsel. The trial court subsequently appointed counsel for defendant, and appointed counsel investigated the matter and reviewed defendant's record of conviction.
A hearing on defendant's petition was held on February 9, 2024. At that time, the prosecutor requested the court deny the petition. The prosecutor noted that he had provided the jury instructions to defendant's counsel on December 14, 2023, and asserted that the instructions did not "give rise to any imputation of malice in any form." Defendant's counsel responded that he had "confirmed on this attempt murder case that no aiding and abetting nor natural and probable consequence jury instructions were given," and submitted the matter to the court. The trial court "accept[ed] the parties' representation," and denied the petition. Defendant timely appealed.
III. DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a summary of the procedural background. (See People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Counsel considered potential issues on appeal but found no specific arguments as grounds for relief, and requests that we exercise our discretion and independently examine the appellate record for any arguable issues.
Appointed counsel notified defendant that "he may personally file a supplemental brief or letter in this case, and his case will likely be dismissed if he fails to file a supplemental brief." We also notified defendant that he may personally file any supplemental brief and that failure to timely do so may result in the dismissal of the appeal as abandoned. Although defendant had the opportunity to do so, he has not filed a personal supplemental brief or letter.
In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that Wende and Anders procedures do not apply in appeals from the denial of a section 1172.6 postjudgment petition. (Delgadillo, at pp. 224-226.) Thus, we need not examine the entire record ourselves to look for arguable grounds for reversal. (Id. at p. 228.) Because defendant's counsel filed a brief raising no issues, and defendant was given an opportunity to file a personal supplemental brief but declined, we may dismiss the appeal as abandoned. (Id. at p. 232.) "Independent review in Wende appeals consumes substantial judicial resources," and "[t]he state . . . has an interest in an 'economical and expeditious resolution' of an appeal from a decision that is 'presumptively accurate and just.'" (Id. at p. 229.)
We, however, have discretion to conduct Wende review even when it is not required. (Delgadillo, supra, 14 Cal.5th at p. 232.) Although this case does not call for us to do so, we have independently examined the record for potential error and find no arguable error that would result in a disposition more favorable to defendant. It is well settled that section 1172.6 precludes relief as a matter of law where the record of conviction shows a defendant was the sole perpetrator and actual killer. In Delgadillo, for example, our Supreme Court determined that the defendant was "not entitled to any relief under section 1172.6" because he "was the actual killer and the only participant in the killing." (Delgadillo, supra, 14 Cal.5th at p. 233; see also People v. Garcia (2022) 82 Cal.App.5th 956, 969 [affirming denial of resentencing because the record of conviction "unequivocally establishes" the defendant was the sole perpetrator and the actual killer]; People v. Harden (2022) 81 Cal.App.5th 45, 47-48 [petition for resentencing may be summarily denied when, without factfinding, weighing conflicting evidence, or making credibility determinations, the record of conviction irrefutably establishes as a matter of law that the jury determined the defendant was the actual killer].)
Without finding facts or relying on our prior appellate opinion, the trial court accepted the parties' representation that defendant was ineligible for relief as a matter of law based on the instructions given to the jury. We have reviewed the jury instructions and reach the same conclusion. The jury instructions and defendant's record of conviction shows defendant was the actual killer. The jury here was not instructed on aiding and abetting, felony murder, natural and probable consequences, or any other theory by which malice could be imputed to defendant. Defendant admitted to solely shooting the victim. As the actual killer, defendant is not entitled to relief as a matter of law. (§ 1172.6; Delgadillo, supra, 14 Cal.5th at p. 233.) To be eligible for relief under section 1172.6, the petitioner must make a prima facie showing that he or she "could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) Defendant cannot make this showing.
IV. DISPOSITION
The trial court's postjudgment order denying defendant's section 1172.6 petition for resentencing is affirmed.
We concur: RAMIREZ P. J. MILLER_ J.