People v. Hernandez CA2/8

Filed 7/11/23 P. v. Hernandez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B323898

Plaintiff and Respondent, Los Angeles County Super. Ct. No. VA103489-01 v.

GILBERT HERNANDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles Count, Raul A. Sahagun, Judge. Affirmed.

Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, we review this appeal from an order denying a petition for resentencing. We affirm. PROCEDURAL BACKGROUND On January 21, 2010, a jury convicted appellant Gilbert Hernandez of first degree premeditated murder. The jury found true that appellant had used a knife, a deadly weapon, inflicting great bodily injury on the victim of the offense. Appellant was sentenced to 25 years to life on the murder and one year for the use of a knife in committing the offense. The facts underlying the conviction are straightforward for purposes of the petition for resentencing. Appellant and the victim encountered each other in a sports bar. They exchanged words and began to fight. Appellant pulled out a knife and stabbed the victim, who died of his wounds. On February 8, 2022, appellant filed a petition for resentencing pursuant to Penal Code section 1172.6 (renumbered from section 1170.95 by Statutes 2022, chapter 58, Section 10, effective June 30, 2022). The trial court denied the petition on the ground that appellant was the single actual killer. Appellant filed a timely notice of appeal. We appointed counsel to represent appellant on appeal. On April 17, 2023, counsel filed a brief under People v. Delgadillo, raising no issues. Counsel advised us she told appellant he may file his own supplemental brief within 30 days. Counsel sent appellant transcripts of the record on appeal as well as a copy of the brief. On April 17, 2023, this court sent appellant a notice that a brief raising no issues had been filed on his behalf. We advised appellant he had 30 days within which to submit a supplemental