Hernandez v. Superior Court CA3

Filed 4/7/23 Hernandez v. Superior Court CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

ARMONDO HERNANDEZ,

Petitioner, C096392 v. THE SUPERIOR COURT OF SAN JOAQUIN (Super. Ct. No. COUNTY, STKCRFE20090008905)

Respondent;

THE PEOPLE,

Real Party in Interest.

After a 2009 shooting, a jury convicted defendant Armondo Hernandez of second degree murder and assault with a deadly weapon and found true allegations that a principal intentionally discharged a firearm and that the crimes were committed for the benefit of a criminal street gang. The trial court sentenced defendant to a determinate term of 14 years four months in prison consecutive to an indeterminate term of 40 years to life. This court affirmed the judgment. (People v. Hernandez (Mar. 8, 2016, C068079) [nonpub. opn.].)

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Defendant subsequently filed a petition for resentencing pursuant to Penal Code section 1172.6 (formerly section 1170.95).1 The trial court denied the petition. This court reversed the trial court’s order and remanded for a new section 1172.6, subdivision (d)(3) hearing. (People v. Hernandez (Aug. 9, 2021, C091247) [nonpub. opn.].) The California Supreme Court granted the Attorney General’s petition for review (People v. Hernandez, review granted Oct. 27, 2021, S270663) and transferred the case back to this court to reconsider the cause in light of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551), which amended section 1172.6. (People v. Hernandez (S270663) vacated & trans. Dec. 22, 2021.) This court again reversed the trial court’s order and remanded for a new section 1172.6, subdivision (d)(3) hearing. (People v. Hernandez (Feb. 28, 2022, C091247) [nonpub. opn.].) On remand, the case was assigned to the judge who presided at trial and who denied defendant’s section 1172.6 petition. Defendant moved to disqualify the judge pursuant to Code of Civil Procedure section 170.6, subdivision (a)(2). The judge denied the motion to disqualify. Defendant then filed a petition for writ of mandate with this court (C096392), which this court denied. The California Supreme Court granted defendant’s petition for review, transferred the matter back to this court with directions to issue an order to show cause, and stayed proceedings in the trial court. (People v. Hernandez (S276036) vacated & trans. Sept. 21, 2022.) We issued an order to show cause. DISCUSSION Defendant asks us to order the trial court to grant his Code of Civil Procedure section 170.6 motion to disqualify the trial court judge. Our review of the trial court’s