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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO HERNANDEZ,

Defendant and Appellant.

 B303608

 (Los Angeles County

 Super. Ct. No. BA285268)

APPEAL from an 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, Senior 

Assistant Attorney General, Charles S. Lee and Idan Ivri, Deputy

Attorneys General, for Plaintiff and Respondent.

_____________________________
2

Ricardo Hernandez appeals from the superior court’s order 

denying his petition for resentencing under Penal Code section 

1170.95.1 He contends the court, after issuing an order to show 

cause under section 1170.95, subdivision (c), erred by applying an 

incorrect standard of proof when ruling, under section 1170.95, 

subdivision (d)(3), the prosecution proved he was ineligible for 

resentencing. Hernandez argues that, in requiring the 

prosecution merely to prove he “could still be convicted of 

murder” under changes 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 murder” 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 we 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 granted February 10, 2021, S265974, 

“section 1170.95 requires the prosecutor to prove beyond a 

reasonable doubt each element of first or second degree murder 

under current law to establish a petitioner’s ineligibility for relief 

under that statute.” (Rodriguez, at pp. 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.5th 798, 

810; People v. Clements (2021) 60 Cal.App.5th 597, 614-615; 

1 Statutory 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 law as amended by Senate Bill No. 1437. (Rodriguez, 

at pp. 243-244.) Therefore, the superior court’s order denying 

Hernandez’s petition is reversed, and the trial court is directed to 

make a determination under 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 under 

section 1170.95, subdivision (d)(3), by presenting substantial 

evidence of the petitioner’s liability for murder under sections 

188 and 189 as amended by Senate Bill No. 1437.