People v. Hernandez CA2/3

Filed 2/7/24 P. v. Hernandez CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B323919

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA312691 v.

ARMANDO HERNANDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Richard S. Kemalyan, Judge. Reversed and remanded with directions.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

A jury convicted defendant and appellant Armando Hernandez of the second degree murder of 16-year-old Giovanny Mancia. More than a decade later, Hernandez filed a petition for resentencing under former Penal Code section 1170.95.1 The court summarily denied the petition on the ground Hernandez had not been convicted under either the felony murder rule or the natural and probable consequences doctrine. The Legislature subsequently made changes to the law that eliminated murder convictions based on imputed malice. In response to those changes, Hernandez filed a new petition for resentencing, this time asserting the jury may have imputed malice to him. The court again summarily denied the petition, stating it was barred by the denial of Hernandez’s first petition. On appeal, Hernandez contends the trial court erred by denying his petition on the basis it was procedurally barred. The Attorney General concedes the error. We agree with the parties that the trial court erred in this respect. Because the court has not yet meaningfully considered the merits of the petition, we remand the case so it may determine, in the first instance, whether Hernandez is entitled to an order to show cause and an evidentiary hearing. FACTS AND PROCEDURAL BACKGROUND 1. Hernandez’s conviction for second degree murder In 2007 the People charged Hernandez with a single count of murder. A jury convicted Hernandez of second degree murder