Filed 3/9/21 P. v. Hernandez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RIC ARDO HERNANDEZ,

Defendant and Appellant. B 303608

(Los Angeles County Super. Ct. No. BA285268 )

APPEAL from a n order of the Superior Court of Los Angeles County, Curtis B. Rappe

, Judge. Reversed with
directions

. Richard D. Miggins , 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 , S enior
Assistant Attorney General, Charles S. Lee and Idan Ivri

, Deputy Attorney s General, for Plaintiff and Respondent

.

_____________________________2 Ricardo Hernandez appeals from the superior court’s order denying his petition for re sentencing under Penal Code section

1170.95. 1 He co ntends the court , after issuing an order to show
cause under section 1170. 95, subdivision (c), erred by appl ying a n incorrect standard of proof when ruling , und er section 1170.95,
subdivision ( d ) (3)

, the prosecution proved he was ineligible for
resentencin g. Hernandez argues th at, in requiring the prosecution merely to prove he “could still be convicted of
murder” under chan ges in the law effected January 1, 2019 by
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), the court applied
a standard of proof “ equivalent to the substantial evidence
standard

. ” Hernandez argues the correct standard requires the court, acting as an independent factfinder, to determine whether
the prosecution proved beyond a reasonable doubt the defendant

“ is guilty of murde r ” on a theory that is valid under current law

. The People agree (as the record shows) the superior court applied a substantial evidence standard, but argue that is the correct
standard

. It is not. As w e held in People v. Rodriguez (2020)

58 Cal.App.5th 227 , petition for review pending, petition filed January 15, 2021, S266652 , following People v. Lopez (2020)

56 Cal.App.5th 936, review gr anted February 10, 2021, S265974

,

“ sec tion 1170.95 requires the prosecutor to prove beyond a
reasonable do ubt each element of first or second degree murder under current law to establish a petitioner’s ineligibility for relief under that statute.” ( Rodriguez , at p p. 230

- 231 ; see People v.
Harris ( Feb. 16, 2021 , B300410 )

___ Cal.App.5th ___, ___ [ 2021 WL 567388, p. 7 ] ; People v. Duchine (2021 ) 60 Cal.App.5 th 798,

810 ; People v. Clements (2021 ) 60 Cal.App.5th 597 , 614

- 615 ;

1 S tatutory references are to the Penal Code.3

Lopez , at p. 942 .) 2 We explained that, in evaluating whether the prosecutor has met this burden, “it is the court’s responsibility to act as independent fact finder and determine whether the evidence establishes a petitioner would be guilty of murder
under” the la w as amended by Senate Bill No. 1437. ( Rodriguez

, at p p

. 2 43

- 244 .) Therefore , the superior court’s order denying Hernandez’s petition is reversed, and the trial court is directed to
make a determination und er section 1170.95, subdivision (d)(3), applying the correct , beyond

- a

- reasonable

- doubt standard.

SEGAL, J.

We concur:

PERLUSS

, P. J. FEUER , J.

2 The Supreme Court granted review in People v. Duke (2020) 55 Cal.App. 5th 113, review granted January 13, 2021, S265309, to decide whether the People can meet their burden of establishing a petitioner’s ineligibility for resentencing und er section 1170.95, subdivision (d)(3), by presenting substantial evidence of the petitioner’s liability for murder under sections 188 and 18 9 as amended by Senate Bill No. 1437.