The People v. Hernandez

1

THE PEOPLE, Plaintiff and Respondent, v. LISANDRO HERNANDEZ, Defendant and Appellant.

B327338

California Court of Appeals, Second District, Fourth Division

January 19, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA147723 Laura F. Priver, Judge. Affirmed.

Stanley Dale Radtke, under appointment by the Court of Appeal, and Lisandro Hernandez, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

ZUKIN J.

INTRODUCTION

In 1998, defendant Lisandro Hernandez was convicted after a jury trial of first degree murder. His conviction was affirmed on direct appeal. In 2022, Hernandez filed a petition for resentencing of his conviction for murder pursuant to Penal Code section 1170.95 (1172.6).^[1] The trial court summarily denied the petition. On appeal, appellate counsel filed a brief that summarized the procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to People v Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Hernandez submitted his own letter brief and requested that this court address the sufficiency of the evidence to support his conviction as well as alleged police misconduct. We decline to address these issues and affirm the order.

PROCEDURAL BACKGROUND

In 1998, a jury found Hernandez guilty of first degree murder. (§ 187, subd. (a).) The jury found true the allegation that during the commission of the offense a principal was armed with a firearm. (§ 12022, subd. (a)(1).) The trial court sentenced Hernandez to 26 years to life in state prison. In 1999, this court affirmed Hernandez's conviction. (People v. Hernandez (Oct. 20, 1999 B124849) [nonpub. opn.].)

On March 14, 2022, Hernandez filed, in pro. per., a petition for resentencing under section 1172.6. The trial court appointed counsel. On November 18, 2022, the court summarily denied the petition, finding that Hernandez had not presented a prima facie case for resentencing. The court explained the jury was not instructed on any theory proscribed by section 1172.6, rather the jury convicted Hernandez as a principal who possessed actual malice. "No intent was imputed to him due to his participation in the crime. Rather he directly committed the crime and at the time he harbored express or implied malice."

Hernandez filed a timely notice of appeal.

DISCUSSION

A. Governing Law

Senate Bill No. 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.) Senate Bill No. 775 modified the law to "expand the authorization to allow a person who was convicted of murder under any theory under which malice is imputed to a person based solely on that person's participation in a crime . . . to apply to have their sentence vacated and be resentenced," and to clarify "that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1.)

"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," now codified in section 1172.6.

(People v. Strong (2022) 13 Cal.5^th 698, 708; People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) "If [a] petitioner ma[kes] a prima facie showing for relief, the trial court [is] required to issue an order to show cause for an evidentiary hearing." (People v. Hurtado (2023) 89 Cal.App.5th 887, 891, citing § 1172.6, subd. (c).) In assessing eligibility at the prima facie stage, the court "'"takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved."'" (Lewis, supra, 11 Cal.5th at p. 971.) The court may deny the petition, however, if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Id. at pp. 970-972.)

Where a trial court denies a section 1172.6 petition based on the failure to make a prima facie case for relief, our review is de novo. (See People v. Drayton (2020) 47 Cal.App.5th 965, 981, overruled in part on another ground in Lewis, supra, 11 Cal.5th at pp. 962-970.)

B. Analysis

In his letter brief, Hernandez challenges the sufficiency of the evidence for his first degree murder conviction and also alleges police misconduct in handling his case. However, "[t]he mere filing of a [prior Penal Code] section 1170.95 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings." (See People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Moreover, Hernandez's questioning of the evidence against him does not demonstrate that the court erred in denying his petition for resentencing. (People v. Gonzalez (2021) 12 Cal.5th 367, 410 [it is the appellant's burden to affirmatively demonstrate error].)

DISPOSITION

The trial court's postjudgment order denying Hernandez's section 1172.6 petition is affirmed.

WE ...