People v. Hernandez

• Decision Date: 22 January 2021
• Docket Number: B302815
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alberto Beto HERNANDEZ, Defendant and Appellant.

60 Cal.App.5th 94

274 Cal.Rptr.3d 188

The PEOPLE, Plaintiff and Respondent,

v.Alberto Beto HERNANDEZ, Defendant and Appellant.

B302815

Court of Appeal, Second District, Division 7, California.

Filed January 22, 2021

David Andreasen, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, and Idan Ivri and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

SEGAL, J.

INTRODUCTION

Effective January 1, 2019 the Legislature changed the law governing whether a defendant can be convicted of murder under a felony murder or natural and probable consequences theory. To limit the scope of the first doctrine and eliminate entirely the second, the Legislature enacted Penal Code section 188, subdivision (a)(3),¹ which provides that, except as stated in section 189, subdivision (e), to be convicted of murder a principal in a crime must act with malice and that malice may not be imputed based solely on participation in a crime. Section 189, subdivision (e), also effective January 1, 2019, in turn provides an exception to the malice requirement for murder by stating that an individual can be liable for first degree felony murder if the person (1) was the actual killer, (2) acted with the intent to kill in aiding and abetting the actual killer, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life.

But the Legislature also enacted an exception to the exception in section 189, subdivision (e): section 189, subdivision (f). The latter provision allows (or at least was intended to allow) individuals to be convicted of felony murder even if they did not act with malice and do not fall in one of the three categories of section 189, subdivision (e), where the victim is a peace officer engaged in the course of his or her duties and the defendant knows (or reasonably should know) these facts. Which makes sense: The Legislature has recognized peace officers face unique dangers when performing their official duties.

Section 189, subdivision (f), however, does not quite say what the Legislature meant it to say. It states: "Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties." The problem is that, if section 189, subdivision (e), "does not apply," then arguably section 188, subdivision (a)(3), does apply, which would mean the prosecution must prove malice when the victim of a felony murder is a peace officer, but not when the victim is someone other than a peace officer. Which does not make sense.

Alberto Hernandez relies on this apparent legislative misstep in his appeal from the superior court's order denying his petition under section 1170.95, which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. Hernandez contends the superior court erred in ruling that section 189, subdivision (f), like the three circumstances in section 189, subdivision (e), is an exception to section 188, subdivision (a)(3), and that the prosecution does not need to prove the defendant acted with malice to convict the defendant of the murder of a peace officer under the felony murder doctrine.

We conclude the superior court correctly ruled section 189, subdivision (f), does not require the prosecution to prove the defendant acted with malice. We also conclude, contrary to Hernandez's contentions, that the law of the case doctrine did not preclude the superior court from finding he could be convicted of first degree felony murder under current law and that the superior court did not apply the wrong legal standard in determining whether he had the requisite knowledge under section 189, subdivision (f). Therefore, we affirm the order denying Hernandez's petition under section 1170.95.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Hernandez of Felony Murder and Burglary

1. Hernandez Burglarizes an Electronics Store with a Friend, Who Shoots a Police Officer

On June 7, 1988, shortly after midnight, Hernandez and his friend Bobby Steele broke into an electronics store and activated a burglar alarm. Four officers of the Los Angeles Police Department, including Officer James C. Beyea and his partner Officer Ignacio Gonzalez, responded to the alarm. After finding no one in the store, Officer Beyea and Officer Gonzalez drove to a police telephone about 100 yards from the store to call the store's owner. The store's alarm, however, sounded again. Believing the suspects may have returned to the store, Officer Beyea and Officer Gonzalez went back to the store without turning on the lights on their patrol car so they could "sneak up on the suspects."

As they approached the store, Officer Gonzalez saw a suspect in a white jacket leaving through a sliding door. The suspect ran down a driveway to the back of the store, and Officer Gonzalez pursued him in the patrol car. When Officer Gonzalez and Officer Beyea arrived at the back of the store, Officer Gonzalez saw another suspect, wearing dark clothing, running through a shipping yard on the other side of a fence from the electronics store. Officer Beyea called for backup, while Officer Gonzalez backed the patrol car out of the driveway and drove around the block to corner the suspects. When no one appeared, Officer Gonzalez suggested that Officer Beyea continue on foot, while he drove around the block. As Officer Gonzalez returned to the place where he left Officer Beyea, he saw the suspect who was wearing the white jacket struggling with Officer Beyea. Officer Gonzalez then saw the suspect, who was later determined to be Steele, raise his arm and point it at Officer Beyea. Officer Gonzalez heard two gunshots, which killed Officer Beyea.

Meanwhile, at 1:00 a.m. a woman living in an apartment complex near the electronics store heard "hysterical crying or laughing" outside her window. After hearing something "clanking" on a chain-link fence behind her building, she looked outside and saw two men, one wearing dark clothing and the other wearing a white jacket, crouched and talking in low voices. The men got up and ran in the same direction. Less than a minute later, the woman heard two gunshots. She saw police lights in the area and a police helicopter, but called the police anyway.

2. The Police Find Hernandez and Steele

At 1:30 a.m. police officers found Hernandez, alone and unarmed, hiding in bushes half a block from the electronics store. Officers also discovered stereo equipment in nearby bushes. Officers eventually found Steele hiding in the attic of an abandoned house, where officers killed him during a confrontation. The officers found Officer Beyea's gun next to Steele's body.

3. The Police Interview Hernandez

Police detectives interviewed Hernandez, who admitted he was involved in the burglary. Hernandez said he and Steele fled the electronics store when they heard helicopters. Hernandez stated that he followed Steele as Steele climbed over a wall, but that when he saw a police officer chase Steele on the other side, Hernandez ran in a different direction and hid in the bushes. Hernandez said that he did not see the officer confront Steele, but that, after he heard gunshots, he saw Steele run past him. Hernandez remained hidden in the bushes until police found him. Hernandez told police Steele did not have a gun.

4. A Jury Convicts Hernandez of Felony Murder, and This Court Affirms but Modifies the Judgment

The People charged Hernandez with first degree murder and commercial burglary and alleged a principal was armed with a firearm, within the meaning of section 12022, subdivision (a). At trial, the prosecution proceeded only on a theory of first degree felony murder, and the trial court instructed only on that theory. The trial court, however, did not tell the jury to make a finding on the degree of felony murder, and the verdict form did not ask the jury to specify the degree. The jury found Hernandez guilty of murder and commercial burglary "as charged" and found true the firearm allegation. The trial court sentenced Hernandez to 25 years to life on the first degree murder conviction, sentenced him to a consecutive term of two years for the burglary conviction, and imposed and stayed execution of the one-year firearm enhancement.

In 1990 this court affirmed Hernandez's conviction but modified the judgment. (People v. Hernandez (Oct. 15, 1990, B041270) [nonpub. opn.] (Hernandez I ).) Citing People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 ( McDonald ), this court held section 1157 required the court to correct the judgment to show Hernandez was convicted of second degree murder.² (See Hernandez I , supra , B041270.) On remand the trial court resentenced Hernandez to 15 years to life on the conviction for second degree murder.

B. The Legislature Enacts Senate Bill No. 1437 and Establishes the Section 1170.95 Petition Procedure

Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder by amending sections 188 and 189. As discussed, new section 188, subdivision (a)(3), provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." New section 189, subdivision (e), provides that, with respect to a participant in the perpetration or attempted perpetration of a felony listed...