Opinion
G062375
01-16-2024
THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR HERNANDEZ, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 09CF3054, Lance P. Jensen, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
We appointed counsel to represent Julio Cesar Hernandez on appeal from the trial court's denial of his petition for resentencing based on Penal Code section 1172.6. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on his behalf.
Although the November 2022 petition identified former Penal Code section 1170.95 as the authorizing statute, the Legislature renumbered that section to section 1172.6, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For clarity, we refer to the statute as section 1172.6. All further statutory references are to the Penal Code.
The procedures set forth in People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, do not apply to appeals from the denial of section 1172.6 petitions. (People v. Delgadillo (2022) 14 Cal.5th 216, 226, 231.) Therefore, when appointed appellate counsel finds no viable issues, counsel should file a brief informing the court that counsel found no arguable issues and including a concise narration of facts. (Id. at p. 231.) The reviewing court should send the brief to the defendant with notice the defendant may file a supplemental brief or letter within 30 days, and if the defendant does not, the court may dismiss the appeal. (Id. at pp. 231232.) While no review of the record is compelled, the court retains discretion to independently review the record in any appeal based on section 1172.6. (Id. at p. 232.)
We gave Hernandez 30 days to file written argument on his own behalf. Hernandez did not file a supplemental brief or letter. We exercise our discretion to independently review the record and find no arguable issue on appeal. We affirm the postjudgment order.
FACTS
The context for the limited issue of this appeal is taken from the prior nonpublished opinion, People v. Hernandez (Dec. 31, 2012, G046437) (Hernandez). As relevant to this appeal, Hernandez admitted he was a shot caller in a tagging crew and, in a retaliatory attack against members of a different crew, he personally stabbed the victim of his underlying convictions. (Ibid.)
As relevant here, the jury convicted Hernandez of willful, premeditated, and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a)) (count 1), aggravated assault (§ 245, subd. (a)(1)) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 3). As to counts 1 and 2, the jury found true that Hernandez personally used a deadly weapon (§ 12022, subd. (b)(1)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
The trial court sentenced Hernandez to a prison term of four years plus life with the possibility of parole after 15 years. In his appeal from the judgment, Hernandez argued (among other things) that the prosecutor committed misconduct by misstating the law on premeditation and deliberation. (Hernandez, supra, G046437.) We rejected the argument and affirmed the judgment. (Ibid.)
In 2022, Hernandez filed a petition for resentencing pursuant to section 1172.6. The trial court appointed counsel, reviewed briefing by both sides, and denied the petition. In its written decision, the court reasoned that "the jury instructions [did] not reference natural and probable consequences or any other theory of vicarious liability that could have improperly imputed the intent to kill based on petitioner's participation in another offense." Hernandez timely appealed.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) (Stats. 2018, ch. 1015) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder and to limit the scope of the felonymurder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) The statutes were amended "to ensure that murder liability is not imposed on a person who [was] not the actual killer, did not act with the intent to kill, [and] was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1172.6, which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing relief. (Former § 1172.6, subd. (a); Stats. 2018, ch. 1015, § 4.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective January 1, 2022, amended section 1172.6, subdivision (a), to explicitly expand the category of individuals entitled to petition for resentencing. (Stats. 2021, ch. 551, § 1, subd. (a).) Subdivision (a) of that section now expressly permits individuals convicted of attempted murder or manslaughter under a natural and probable consequences theory to file a petition for resentencing relief. A section 1172.6 petition must make "'a prima facie showing' for relief. [Citation.]" (Lewis, supra, 11 Cal.5th at p. 960.) In Lewis, our Supreme Court held, "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.)
Here, the trial court correctly concluded Hernandez is ineligible for resentencing as a matter of law. The record established conclusively (People v. Strong (2022) 13 Cal.5th 698, 708) that he was not convicted of attempted murder under the natural and probable consequences theory or the felony-murder rule, and Hernandez does not contend otherwise. Although we note one of the given jury instructions dealt with the topic of "other perpetrator[s]" (capitalization omitted), it clearly instructed the jury to disregard the possible involvement of another perpetrator in the underlying chain of events and to instead focus on "whether the defendant on trial here[, i.e., Hernandez,] committed the crimes charged." All of the jury's instructions were premised on a theory that Hernandez was the actual perpetrator of the charged crimes and the jury explicitly found Hernandez personally used a deadly weapon and personally inflicted great bodily injury when he committed the attempted murder. We have independently reviewed the record and found no arguable issues on appeal.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.