People v. Hernandez CA2/1

Filed 9/30/20 P. v. Hernandez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B303538

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA341948) v.

OSVALDO HERNANDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Terry A. Bork, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

________________________________

In 2009 a jury convicted Osvaldo Hernandez of first degree murder (Pen. Code,1 § 187, subd. (a)), attempted murder (§§ 187, 664), and being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The jury also found true that he personally used and discharged a gun in the commission of the murder and attempted murder (§ 12022.53, subds. (b), (c) & (d)) and that he committed those crimes for the benefit of, at the direction or, or in association with a criminal street gang (§ 186.22, subd. (b)). The court sentenced him to prison for 50 years to life. The court also imposed $180 in fees and assessments (former § 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1)), a $200 restitution fine (former § 1202.4, subd. (b)) and $7,500 in victim restitution (§ 1202.4, subd. (f)). Hernandez did not object to, or request a hearing with respect to, the fees, assessments, fine, or restitution order. Hernandez appealed and, in 2012, we held that the court should have applied section 654 to stay the sentence on the count of being a felon in possession of a firearm, and otherwise affirmed the judgment. (People v. Hernandez (Aug. 2, 2012, B223969) [nonpub. opn.].) In 2019, Hernandez filed a petition for writ of habeas corpus in the superior court challenging the order to pay “restitution” on the ground that the sentencing court did not determine whether he had the ability to pay the amounts imposed. He asserted that his delay in filing the petition was excusable because the petition is based on “new law” established in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The court “summarily denied” the petition on the grounds that it was untimely and raised issues that could have been, but