Filed 7/14/21 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. NORBERTO HERNANDEZ, Defendant and Appellant. G059985
(Super. Ct. No. 08ZF0020)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Frank Ospino, Judge. Affirmed.

C. Matthew Missakian, under appointment by the C ourt of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 Generally, a person convicted of murder under the felony

- murder rule or the natural and probable consequences doctrine may petition the trial court to vacate the conviction. (Pen. Code, § 1170.95.) 1 In 2009, d efendant Norbert o Hernandez was convicted of two counts of first degree murder, related crimes and enhancements.

In 2020, Hernandez filed a section 1170.95 petition. The trial court denied the petition because Hernandez was not convicted of the two murder s under either the felony

- murder rule or the natural and probable consequences doctrine

. Hernande z filed a notice of appeal from that order and this court appointed appellate counsel.

C ounsel filed a “ Wende brief ” inform ing th is court of no arguable issues

. ( People v. Wende (1979) 25 Cal.3d 436 ( Wende ) .) Counsel notified Hernandez of h is right to file a supplemental brief . W e have received no further briefing

.

We affirm the trial court’s order.

I
FACTS AND PROCEDURAL BACKGROUND We provide the follow ing “ brief description of the facts and procedural history of the case, the crimes of which the d efendant was convicted, and the punishment imposed. ” ( People v. Kelly (2006) 40 Cal.4th 106, 109

- 110.) The facts are taken from this court’s unpublished opinion in Hernandez’s initial appeal. ( People v. Hernandez (Jan. 21, 2011, G042193) [nonpub. opn.]. )

On December 15, 2006, a shoot ing took place in Santa Ana. A street
vendor was shot in the back and was seriously injured. Police recovered four

. 3 80 caliber
bullet cartridges

.

1 Further undesignated statutory references are to the Penal Code.3 On December 17, 2006, police found two gang members l ying on a sidewalk, each had died from a single gunshot wound to the head. Another gang member was seriously wounded. Police recovered two RP . 3 80 c aliber cartridges

.

On January 15, 2007, police a rrested Hernandez, who was carrying a
loaded .380 semiautomatic pistol. An investigation determined the six cartridges
recovered from the two earlier crime scenes were fired from that pistol

. Hernandez made statements to the police putting himself at both crime scenes. As far as the second shooting, Hernandez admitted being there with his fellow gang members when the three victims ( suspected rival gang members) were confronted and shot

.

Procedural History

In 2009, a jury convicted Hernandez of two counts of first degree murder, two counts of active participation in a criminal street gang, attempted murder, and assault with a firearm. The jury also found true gang enhancements and firearm enhancements.
The jury further found true gang and multiple murder special circumstances. The trial court imposed a life sentence without the possibility of parole. On appeal, this court
reversed the assault conviction , and one of the active gang participation conviction s, but
otherwise affirmed.

On December 2, 2020 , Hernandez filed a petition for resentencing under the provisions of section 1170.95. Hernandez requested the appointment of counsel.

On January 13, 2021, the prosecution filed a response. The prosecution attached the complete set of jury instructions, which did not include instructions for the felony

- murder rule or the natural and probable consequences doctrine. The prosecution noted the jury found true a special circumstance that required a finding that Hernandez was an active member of a criminal street gang and that he intentionally killed the two
victims. (§ 190.2, subd. (a)(22).)4 On February 16, 2021, Hernandez ( now represented by counsel) filed a reply to the prosecution’s response. Hernandez argu ed the prosecution pursued
inconsistent factual theories at his trial and the trial of a codefendant.

On March 5, 2021, t he court conducted a hearing on the petition. T he court
reviewed the pleadings, the underlying appellate opinion, and various other exhibits submitted by the parties, including the closing argument from Hernandez’s trial. The court found the prosecution had not proceeded under the felony

- murder rule or the natural and prob able consequences theory. The court also found Hernandez’s murder convictions were based on a theory that either he was the actual shooter, or he was a “direct aider and abettor who shared the same intent as the actual shooter.”

T he trial court ruled “ba sed on the record that I have in front of me, I cannot legally make a finding that the defendant has made a prima facie showing under 1170.95, and so consequently, the petition is denied.”

II
DISCUSSION When appointed counsel is unable to identify any arguable issues on appeal, we independently review the record. ( Wende , supra , 25 Cal.3d at pp. 441

- 442.) Generally, “an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion , is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result wi ll either be a reversal or a modification of the judgment.” ( People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the court t o vacate the conviction and resentence on any remaining counts. (§ 187; see People v. Munoz (2019)5

39 Cal.App.5th 738, 75 4 , review granted Nov. 26, 2019, S258234; see also People v. Lopez (2019) 38 Cal.App.5th 1087, 1092

- 1093, review granted Nov. 13, 2019, S258175.)

When appointed counsel files a Wende brief in an appeal from a denial of a

s ection 1170.95 petition, a reviewing court is not required to independently review the record, but the court may do so in the interests of justice. ( People v. Flores (2020) 54 Cal.App.5th 266, 269; accord People v. Allison (2020) 55 Cal.App.5th 449, 456 [court of appeal has “ the discretion to review the record in the interests of justice ” ].)

Here, a j ury found Hernandez guilty of two counts of murder. Hernandez was not convicted under the felony

- murder rule or the natural and probable consequences
doctrine. This renders Hernandez statutorily ineligible relief under the provisions of

s ection 1170.95. We have independently reviewed the record and we agree with counsel’s analysis that there are no arguable issues on appeal.

III
DISPOSITION
The order of the trial court is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.