People v. Hernandez CA2/6

Opinion

Filed 8/18/26 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B347189 (Super. Ct. No. 2008006111) Plaintiff and Respondent, (Ventura County)

v.

ALVINO JOE HERNANDEZ,

Defendant and Appellant.

Alvino Joe Hernandez appeals after the trial court, following an evidentiary hearing, denied his petition for resentencing under Penal Code1 section 1172.6. Appellant contends: (1) the record lacks substantial evidence to support the trial court’s findings that appellant is guilty of the murder of Octavio Lopez and the attempted murder of Michele White; (2) the court erred in relying on firearm enhancements as proof appellant was a direct perpetrator on all counts; (3) the record is 1 Undesignated statutory references are to the Penal Code. unclear as to whether the court applied the correct standard of proof. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellant, his brother Lino Hernandez, and Alejandro Salas belonged to the Colonia Chiques gang (Colonia) in Oxnard. On Labor Day in 2006, Salas approached a car containing Octavio Lopez, his brother Moises Lopez, and Richard Gonzalez. Moises and Gonzalez were members or associates of the tagging group “DSK.” A number of incidents had occurred between DSK and Colonia members. Although Octavio did not belong to DSK, he agreed to arrange a fight between a Johnny and “one of [Salas’s] Colonia boy homies.” Octavio, Moises, and Gonzalez returned to the apartment where Moises was living with another of his brothers, Abraham Lopez, who was also a DSK member. Michele White, Moises’s girlfriend, went to the Lopez apartment to retrieve her property. She parked in an alley and called Moises, who met her. Appellant, Lino, and Salas walked in an alley toward White and Moises. Moises called the apartment as well as Gonzalez, whom he told to bring a firearm. Appellant, Lino, and Salas came within five feet of White’s car. Lino said to White, “What’s up, girl?” As Moises and White stopped at a courtyard entrance, appellant, Lino, and Salas “started crowding around [them].” Octavio, Abraham, and Gonzalez arrived. Gonzalez had a firearm in his waistband, under his shirt. Lino said to Octavio, “My carnal [brother] wants you to keep his name out of your fuckin’ mouth.” Lino then asked who would fight. Octavio said, “Yeah. But what’s that you got there?” Lino took a TEC-9 firearm out of his shirt, said “What’s up?” and began firing.

2 Octavio suffered four gunshot wounds and ultimately died. Gonzalez ran, but he was shot multiple times and fell. After falling, Gonzalez fired six times in Lino’s direction. Abraham also sustained multiple gunshot wounds. Abraham’s .380-caliber firearm was fired at some point. While Abraham was on the ground, White saw appellant shooting Abraham and then hitting him in the face with the handle of a gun. A bullet struck White in the leg as she fled, and she fell. White put her face into the grass to avoid being shot again. The bullet damaged an artery in White’s leg, and she no longer had feeling in it at the time of trial. Before the shooting started, Moises had told White to go upstairs. Lino said she did not need to do so because nothing was going to happen, and White stopped walking. Appellant testified he went to the apartment to serve as “backup” for a fistfight. Both the TEC-9 and a nine-millimeter Makarov belonged to appellant. On the day of the shooting, appellant gave Lino the TEC-9. Appellant testified he and Lino followed Moises and White as they started walking into the courtyard. After Octavio asked what appellant had in his pants, Gonzalez reached toward his right hip. Appellant “got scared.” He pulled out his Makarov and fired, and he believed he hit Gonzalez. Appellant’s Makarov jammed. Lino began firing as well. Appellant saw Abraham trying to load his firearm. Appellant ran to Abraham and hit him in the face so he would drop it. Appellant took Abraham’s firearm away from him and left with Lino. A jury convicted appellant of the first degree murder of Octavio (§§ 187, subd. (a), 189) and the attempted murders of 3 Abraham, Gonzalez, and White (§§ 664, 187, subd. (a)). As to the murder count, the jury found true the allegation appellant intentionally killed the victim while he was an active participant in a criminal street gang (§ 190.2, subd. (a)(22).) As to all four counts, the jury found true a gang allegation (§ 186.22, subd. (b)(1)) and the allegation that at least one principal intentionally and personally discharged a firearm proximately causing death or great bodily injury (§ 12022.53, subd. (e)(1)). The trial court sentenced appellant to life without parole for the murder of Octavio. Appellant received consecutive terms of nine years for the attempted murder of Abraham and 28 months for the attempted murders of Gonzalez and White. The court imposed consecutive terms of 25 years to life on all four counts for the firearms enhancements. We affirmed the judgment on direct appeal. (People v. Hernandez (June 24, 2013, B229363) [nonpub. opn.].) In 2022, appellant filed a petition for resentencing. The trial court denied the petition without issuing an order to show cause. On appeal, we reversed the judgment and directed the trial court to conduct an evidentiary hearing. (People v. Hernandez (May 30, 2024, B323576, cons. w/B324054) [nonpub. opn.].) At the evidentiary hearing, no new evidence was produced. At the beginning of the hearing, the court noted “the prosecution has to prove beyond a reasonable doubt that Petitioners are guilty of murder or attempted murder under California law as amended by the changes to Penal Code Sections 188 and 189.” The court denied the petition. DISCUSSION “Effective January 1, 2019, Senate Bill . . . 1437 . . . significantly limited the scope of the felony-murder rule and 4 eliminated liability for murder under the natural and probable consequences doctrine . . . .” (People v. Guiffreda (2023) 87 Cal.App.5th 112, 122; Stats. 2018, ch. 2015, §§ 1-3.) Now, “[a] person who did not kill or act with the intent to kill can be liable for murder under the felony-murder doctrine only if he or she ‘was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.’” (People v. Emanuel (2025) 17 Cal.5th 867, 880 (Emanuel); § 189, subd. (e)(3).) Section 1172.6 sets forth the procedure for defendants convicted under prior law to petition for relief. (§ 1172.6.) The process “begins with a facially valid petition that entitles petitioner to counsel, continues with asking whether petitioner has made a prima facie case for relief, and, if so, proceeds to an evidentiary hearing on the ultimate question of whether petitioner should be resentenced.” (People v. Patton (2025) 17 Cal.5th 549, 562; § 1172.6, subds. (a)-(d).) At the evidentiary hearing, the prosecutor must “‘prove, beyond a reasonable doubt, that the petitioner is guilty of murder’ under state law as amended by [Senate Bill 1437].” (Emanuel, supra, 17 Cal.5th at p. 880; § 1172.6, subd. (d)(3).) We review denial of a section 1172.6 petition after an evidentiary hearing for substantial evidence. (Emanuel, at p. 885.) “Under this standard, we review the record ‘“‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’”’” (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).)

5 Appellant contends there is insufficient evidence he directly aided and abetted the attempted murder of White. We disagree. “‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) “‘[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.’ [Citation.] [¶] . . . ‘Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) Viewing the evidence in the light most favorable to the judgment, we conclude a reasonable trier of fact could find appellant directly aided and abetted White’s attempted murder. Before the shooting, appellant armed Lino, his brother and fellow Colonia gang member, with the TEC-9—a weapon “designed for military purposes” that, in this case, could hold 35 rounds. Appellant and Lino followed White and her boyfriend Moises to the courtyard where the shooting took place. White described them as “crowding around.” When Moises told White to leave, appellant heard Lino say nothing was going to happen. Also hearing Lino’s comment, White stayed and was soon shot. A reasonable trier of fact could conclude appellant knew of and shared in Lino’s intent to kill White.

6 As for appellant’s actus reus, in addition to following White to the courtyard and crowding around her, appellant fired at and hit Gonzalez. After appellant’s weapon jammed, he ran across the courtyard to Abraham, shot him, and pistol-whipped him. Appellant was anything but a mere bystander. Although some of this conduct occurred after Lino fired the TEC-9 at White, it demonstrates appellant was committed to backing up Lino. The backup appellant provided and represented aided Lino’s firing the TEC-9 at White and others, even while outnumbered. Appellant’s sufficiency of the evidence argument as to Octavio’s murder fails for similar reasons. “In general, to establish liability for murder under the theory of direct aiding and abetting, ‘the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.’” (People v. Curiel (2023) 15 Cal.5th 433, 466.) Appellant acknowledges the jury’s intent to kill finding as to Octavio’s murder carries preclusive effect. Although he argues there is insufficient evidence he knew Lino intended to kill Octavio, such knowledge can be inferred from Lino’s confrontational behavior and his carrying of a firearm designed for military purposes to a supposed fistfight. Appellant attempts to discount the significance of supplying Lino with the TEC-9 by characterizing it as “merely creat[ing] a dangerous situation in which death is possible depending on how circumstances unfold . . . .” (Reyes, supra, 14 Cal.5th at p. 989.) But this portion of Reyes is readily distinguishable because it dealt with the causation element for a direct perpetrator.

7 A rational trier of fact could conclude appellant had the requisite intent to kill Octavio when he supplied Lino the TEC-9. (See § 20.) Octavio had agreed to arrange the fistfight, so his presence would be expected. And, before the shooting started, Lino told Octavio that his brother “wants you to keep his name out of your fuckin’ mouth.” Furthermore, as already discussed, appellant’s conduct far exceeded provision of the murder weapon. The record contains substantial evidence appellant aided and abetted Octavio’s murder. Contrary to appellant’s suggestion otherwise, the trial court applied the correct standard of proof. At the outset of the hearing, the court clearly identified the standard as beyond a reasonable doubt. Likewise, at the end of its ruling, the court made multiple findings “beyond a reasonable doubt.” Appellant points to the court’s statement that “there is strong and substantial evidence in the record that does establish beyond a reasonable doubt a willful, deliberate, and premeditated murder of Octavio and attempted murders of Michelle, Abraham, and Richard.” But even in this statement the court invoked the standard of beyond a reasonable doubt. Viewed in context, use of the words “substantial evidence” does not demonstrate the court applied the incorrect standard of proof. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398 [“As a general rule ‘“a trial court is presumed to have been aware of and followed the applicable law.”’”].) Finally, appellant contends the trial court erred in relying on firearm enhancements as proof appellant was a direct perpetrator on all counts. We conclude any error was harmless. At one point in its ruling, the trial court stated “the jury found beyond a reasonable doubt that both Lino and [appellant]

8 were direct perpetrators. The jury found [true] the special allegation for both [appellant] and Lino that they personally and intentionally discharged a firearm during the commission of the charged offenses. . . . I also find evidence in the record supporting the jury’s decision in that regard.” However, as to appellant, the jury found only that at least one principal personally and intentionally discharged a firearm—not that appellant himself did so. (§ 12022.53, subd. (e).) Elsewhere, the court recognized that appellant was an aider and abettor for the murder of Octavio and the attempted murder of White. Especially given the strong evidence of appellant’s guilt as an aider and abettor, any error in misconstruing the jury’s findings as to the firearm enhancements “was harmless because it is not reasonably probable that absent the error appellant would have achieved a more favorable result.” (People v. Rodriguez (2024) 103 Cal.App.5th 451, 459.) DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED.

CODY, P. J.

We concur:

YEGAN, J.

BALTODANO, J.

9 Catherine Voelker, Judge Superior Court County of Ventura ______________________________ Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.