People v. Hernandez CA2/7

Filed 2/14/22 P. v. Hernandez CA2/7 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B303608

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA285268) v.

RICARDO HERNANDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Reversed with directions. Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

Ricardo Hernandez appealed from the superior court’s order denying his petition for resentencing under Penal Code section 1170.95.1 He contended the court, after issuing an order to show cause under section 1170.95, subdivision (c), erred by applying an incorrect standard of proof when ruling, under section 1170.95, subdivision (d)(3), the prosecution proved he was ineligible for resentencing. Hernandez argued that, in requiring the prosecution merely to prove he could still be convicted of murder under changes in the law effected January 1, 2019 by Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), the court applied a standard of proof “equivalent to the substantial evidence standard.” Hernandez argued the correct standard requires the court, acting as an independent factfinder, to determine whether the prosecution proved beyond a reasonable doubt the defendant is guilty of murder on a theory that is valid under current law. The People conceded (as the record shows) the superior court applied a substantial evidence standard, but the People argued that is the correct standard. In a prior opinion, we held the superior court applied the wrong standard. We stated section 1170.95 required the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law to establish a petitioner’s ineligibility for relief under that statute. We explained that, in evaluating whether the prosecutor has met this burden, the court must act as an independent factfinder and determine whether the evidence establishes the petitioner would be guilty of murder under the law as amended by Senate Bill No. 1437. Therefore, we reversed the superior court’s order denying Hernandez’s petition and directed the superior court to