People v. Fernandez CA3

Filed 3/23/23 P. v. Fernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C093040

Plaintiff and Respondent, (Super. Ct. No. 62-038488B)

v.

BRANDON ALEXANDER FERNANDEZ,

Defendant and Appellant.

In 2003, Daniel Bezemer killed his girlfriend (the victim). Bezemer’s roommate, defendant Brandon Alexander Fernandez, was involved, though the extent and timing of his involvement is contested. In 2005, defendant pleaded guilty to murder in the second degree and the trial court sentenced him to 15 years to life in state prison. In 2020, defendant filed a petition for resentencing, asserting he could no longer be convicted of murder due to the abrogation of the natural and probable consequences doctrine. After a hearing, the trial court denied defendant’s petition on October 23, 2020. On November 13, 2020, appellant filed a timely notice of appeal.1

1 Appellant sought and received numerous extensions of time for briefing this appeal. Hence, the matter was not fully briefed until October 24, 2022.

1

On appeal, defendant asserts, and the Attorney General agrees, the trial court employed the incorrect standard of review. Defendant further asserts that in the absence of sufficient evidence at the hearing, the trial court erred in denying his petition and he is presently entitled to resentencing. He contends the proper remedy is for us to reverse his conviction and resentence him on the uncharged crime of being an accessory after the fact. In the event we remand for a new hearing, he requests a hearing before a different judge. We agree that the trial court applied the wrong standard of review. Disagreeing with defendant’s remaining contentions, we shall reverse the order denying defendant’s petition and remand for a new hearing. BACKGROUND2 The victim was killed in 2003. A 2004 information charged defendant and Bezemer with murder (Pen. Code, § 187, subd. (a)—count one)3 and conspiracy to commit murder. (§ 182, subd. (a)(1)—count two.) In 2005, defendant pleaded guilty to second degree murder. The trial court sentenced him to 15 years to life in state prison. In 2020, defendant filed a petition for resentencing.4 Defendant alleged, in effect, that (1) an information had been filed against him that allowed the prosecution to proceed on a theory of murder under the natural and probable consequences doctrine; (2) he was