Filed 7/24/26 P. v. Hernandez CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B337790
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA088222)
v.
LEOBARDO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark Arnold, Judge. Affirmed.
Sandra Gillies, 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, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 2015, a jury convicted Leobardo Hernandez of the first
degree murder of Juan Frias. The conviction was reversed on
appeal due to instructional error. On remand, the People
declined to retry Hernandez. The trial court reduced the
conviction to second degree murder. Hernandez now appeals
from the trial court’s order denying his petition for resentencing
under Penal Code section 1172.6.1 After an evidentiary hearing,
the trial court concluded the People proved beyond a reasonable
doubt that Hernandez was guilty of second degree murder as a
direct aider and abettor. Hernandez contends there was
insufficient evidence to support this determination; the trial court
erred in failing to consider his youth when determining whether
there was evidence of malice; and the court further erred by
failing to act as an independent fact finder. We find no
prejudicial error and affirm.
1 All undesignated statutory references are to the Penal
Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
We refer to the law formerly codified at section 1170.95 as
section 1172.6 for the remainder of this opinion.
2
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Crime2
“This case arises out of an August 6, 2010 gang-related
shooting. Hernandez, a member of the South Los street gang,
was riding in an SUV with two other South Los members, Javier
Rodriguez, also known as ‘Cricket,’ and Daniel Rodriguez, also
known as ‘Tripper.’ Tripper was driving and Hernandez was
riding in one of the back seats. . . . They were driving near South
Vermont Avenue and 111th Street in Los Angeles, an area
contested by several rival gangs, looking for someone to retaliate
against in response to the recent killing of a fellow South Los
member.” (Hernandez, supra, B266206.)
The group happened upon Frias. “Tripper stopped the SUV
in front of Frias’[s] car because Frias looked like a member of a
rival gang. Cricket then got out of the SUV, while Hernandez
and Tripper stayed inside. Cricket approached Frias and asked
him where he was from. When Frias did not answer, Cricket shot
Frias in the face, killing him.” (Hernandez, supra, B266206, fn.
omitted.) Cricket used Hernandez’s nine-millimeter Beretta
handgun. “Cricket got back inside the SUV and told Hernandez
2 We take judicial notice of the unpublished opinion from
Hernandez’s direct appeal. (Evid. Code, §§ 451, 459.) Based on
our review of the trial transcripts, we find the factual recitation
in the opinion from the direct appeal to be an accurate summary
of evidence admitted at the trial. (People v. Hernandez (Oct. 4,
2016, B266206) [nonpub. opn.] (Hernandez); § 1172.6,
subd. (d)(3); see People v. Lewis (2021) 11 Cal.5th 952, 972
(Lewis) [appellate opinion is generally part of record of conviction
in § 1172.6 proceedings].) We quote from it and recount
additional facts from the trial transcripts.
3
and Tripper that he had ‘got ‘em.’ ” (Hernandez, supra, B266206.)
They drove away.
Investigation, Trial, Verdict, and Direct Appeal3
In June 2011, Toni Martinez, a detective with the Los
Angeles County Sheriff’s Department who was investigating
Frias’s murder, learned of three potential suspects: Tripper,
Cricket, and Hernandez, all of whom were members of the South
Los gang.
In September 2011, in an attempt to get Hernandez to talk
about Frias’s murder, Martinez placed Hernandez in a jail cell
with two undercover deputies, Dylan Navarro and Anthony
Castro, who posed as inmates as part of a Perkins operation.4
Hernandez described the events of Frias’s murder to the
deputies. Their conversation was recorded.
In 2013, the People charged Hernandez by information
with one count of murder. (§ 187, subd. (a).) The information
further alleged that a principal personally and intentionally
discharged and used a handgun, which proximately caused great
bodily injury and death (§ 12022.53, subds. (b)–(d) & (e)(1)), and
that the offense was committed for the benefit of, at the direction
of, and in association with a criminal street gang (§ 186.22,
subd. (b)(1)(C)).
At Hernandez’s 2015 jury trial, Castro testified about his
conversation with Hernandez during the Perkins operation. The
3 We take these facts from the trial transcripts and exhibits,
which the trial court admitted into evidence at the evidentiary
hearing.
4 A “Perkins operation” is when an undercover agent is
placed in a cell with a suspect to obtain information from the
suspect. (Illinois v. Perkins (1990) 496 U.S. 292.)
4
recording of the conversation was also admitted into evidence. In
the recorded conversation, Hernandez told the undercover
deputies the following:
When Frias was killed, Hernandez was with “two older
homeys.” Tripper drove the vehicle, which had tinted windows.
Hernandez was in the backseat and did not get out. Only
Cricket, the shooter, got out of the vehicle. Cricket asked Frias
where he was from. When Frias did not answer, Cricket shot him
once in the face. As Hernandez described it, “[Cricket] just got
out, pop.” When Cricket returned to the car, he said, “got ‘em.”
Hernandez “had a .9 [Beretta]” that Cricket used to kill Frias. At
some point that day, Hernandez had handled the weapon, but he
did not load it.5
Hernandez, Tripper, and Cricket did not know Frias. They
shot him because someone had “smoked” a “homey’s” brother, and
they believed that Frias was from an enemy gang.
When discussing whether the other two men would have
spoken to police, Hernandez described Cricket as “cool,” but said
the other “fool,” referring to Tripper, “did some bitch shit.”
Tripper “did a crack head move” and sold Hernandez’s gun.
Navarro asked if Hernandez gave the gun to the “homey” to sell
or to get rid of it, and Hernandez responded, “No, that fool had it
and he had sold it.”
Hernandez and the undercover deputies further discussed
how law enforcement had identified Hernandez. Castro brought
up Hernandez’s “homie,” Cricket, and suggested the police could
have convinced him to identify others involved in the shooting.
5 That Hernandez had touched the gun that day came up
when the group discussed whether Hernandez’s DNA was on
anything linked to the crime.
5
Castro continued: “You said he’s a homie though, right, like he’s a
G? If he’s a G, then you know he should be down. It’s just that
other fool.”6 Hernandez had previously referred to Tripper as the
“fool” who sold the gun. After saying, “It’s just that other fool,”
Castro asked: “How come he got the gun?” Hernandez answered:
“He took it. He just took it.” Castro clarified, “That was your shit
though, right?” and Hernandez responded, “Yeah.” Castro asked
again, “That was your fucken gun, he took your shit?” Hernandez
replied, “Yeah, yeah.”
Castro testified about portions of the recording that were
silent, but during which Hernandez had nodded. Hernandez told
the officers that a rival gang had “smoked [a] homey’s brother.
So we wanted to, you know,” and Castro replied, “re-yeah,
retaliation.” Hernandez responded by affirmatively shaking his
head.
Later, Castro asked Hernandez if they were “hunting,” and
Hernandez shook his head yes. Castro also asked Hernandez if
he “knew what was up” when he got in the car, and Hernandez
again shook his head affirmatively.
Castro further testified to his understanding of the
conversation: Hernandez told him Cricket used his gun; after the
shooting “the driver, Tripper, took the gun and, in a crackhead
move, sold it”; and Hernandez never indicated that he did not
know the murder was going to occur. Instead, he was out
“hunting” and knew what would happen when he got in the car.
At trial, Los Angeles County Sheriff’s Detective Albert
Arevalo testified as the prosecution’s gang expert. Arevalo
testified that gang members “put in work” for the gang by
6 At trial, Castro explained that by “G” he meant a “solid
gangster. Isn’t gonna snitch.”
6
committing crimes. Providing a firearm to another gang member
qualifies as putting in work. The term “hunting” means going
outside of a gang’s boundary and “looking for rival gang members
to commit assaults on them.” If someone killed the sibling of a
fellow gang member, the gang would usually retaliate violently.
Hernandez and his two cohorts were all gang members.
Frias’s friend, Rodrigo Torres, also testified. On August 6,
2010, Torres was at a gathering of friends when he saw Frias
drive up and park his car in an alley. Torres heard arguing from
the alley. He saw a white SUV with tinted windows parked in
the alley. The SUV’s passenger door was open, and a man was
walking towards Frias’s vehicle. The man was holding his right
hand in front of his body near his stomach. Torres saw the man
argue with Frias and then saw the man’s right hand “go up.”
There was something shiny in the man’s hand or at his wrist.
Torres left to tell the others at the gathering that a man was
arguing with Frias. As Torres spoke with his friends, he heard a
gunshot. Torres and his friends “hit the floor” for safety and
heard a door close and a vehicle “take off.” Approximately 20
minutes later, Torres went into the alley and found Frias dead in
his car, with a gunshot wound to his face.
The jury found Hernandez guilty as charged and found the
gang and firearm allegations true. The court imposed a sentence
of 50 years to life.
On direct appeal, a panel of this court held that under
People v. Chiu (2014) 59 Cal.4th 155, “the trial court erred when
it instructed the jury that it could convict Hernandez of first
degree premeditated murder under a natural and probable
consequences theory.” (Hernandez, supra, B266206.) The court
reasoned that “[a]lthough there was evidence from which the jury
7
could have found Hernandez guilty of first degree premeditated
murder under direct aiding and abetting principles, the
prosecutor relied on the natural and probable consequences
doctrine at trial in arguing Hernandez’s guilt.” (Hernandez,
supra, B266206.) Nothing in the record demonstrated beyond a
reasonable doubt that the jury relied on a direct aiding and
abetting theory, instead of the natural and probable
consequences theory, in reaching its verdict. (Hernandez, supra,
B266206.)
The court thus reversed and remanded the matter for the
People to accept a reduction of the conviction to second degree
murder or to retry Hernandez for first degree murder under a
legally valid theory. On remand, the prosecution declined to
retry Hernandez for first degree murder. The trial court reduced
the conviction to second degree murder and imposed a sentence of
40 years to life.
Resentencing Proceedings
In 2019, Hernandez filed a form petition for resentencing.
The trial court denied the petition, finding it did not make a
prima facie showing of eligibility for resentencing. Hernandez
appealed. In 2022, a panel of this court reversed and remanded
with instructions to issue an order to show cause and hold an
evidentiary hearing. (People v. Hernandez (May 23, 2022,
B307077) [nonpub. opn.].)
On remand, Hernandez’s petition was assigned to Judge
Amy N. Carter. In September 2023, Judge Carter held an
evidentiary hearing, during which she took judicial notice of the
trial transcripts and of four trial exhibits that were the
transcripts of the recorded Perkins operation. After arguments
by both parties, Judge Carter took the matter under submission.
8
However, in November 2023, without ruling on the petition,
Judge Carter transferred the matter to Judge Mark S. Arnold,
who had presided over Hernandez’s original jury trial.
In April 2024, Judge Arnold conducted a further
evidentiary hearing and denied the petition, finding Hernandez
had the “intent to shoot and kill a rival gang member” and it was
a “clear case of direct aiding and abetting.”
Hernandez timely appealed.
DISCUSSION
I. Substantial Evidence Supports the Trial Court’s
Denial of the Petition
A. Senate Bill No. 1437 and section 1172.6
As relevant here, Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Stats. 2018, ch. 1015; Senate Bill No. 1437) eliminated the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder. (People v. Strong (2022) 13 Cal.5th
698, 707–708; Lewis, supra, 11 Cal.5th at p. 957.) The bill
amended section 188, requiring that 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.” (§ 188, subd. (a)(3).)
A principal in a murder, including an aider and abettor,
may still be criminally liable if he or she personally possesses
malice aforethought, whether express or implied. (People v.
Harris (2024) 105 Cal.App.5th 623, 631; People v. Silva (2023) 87
Cal.App.5th 632, 639–640; People v. Offley (2020) 48 Cal.App.5th
588, 595–596 [Sen. Bill No. 1437 did not “alter the law regarding
the criminal liability of direct aiders and abettors of murder
because such persons necessarily ‘know and share the murderous
intent of the actual perpetrator’ ”].)
9
Senate Bill No. 1437 also created “a procedural mechanism
for those previously convicted of murder under a theory amended
in [Senate Bill No. 1437] to petition for resentencing.” (People v.
Emanuel (2025) 17 Cal.5th 867, 880 (Emanuel); see also Lewis,
supra, 11 Cal.5th at p. 959.) If a defendant files a petition setting
forth a prima facie case that he or she could not be presently
convicted of murder because of changes to the law implemented
by Senate Bill No. 1437, then the trial court must issue an order
to show cause. (Emanuel, at p. 880; § 1172.6, subd. (c).)
Then, “ ‘the court must hold an evidentiary hearing at
which the prosecution bears the burden of proving, “beyond a
reasonable doubt, that the petitioner is guilty of murder or
attempted murder” under state law as amended by Senate Bill
No. 1437 . . . .’ ” (People v. Njoku (2023) 95 Cal.App.5th 27, 41;
§ 1172.6, subd. (d)(1), (3).) At the hearing, the trial court sits as
“a fact finder tasked with holding the People to the beyond a
reasonable doubt standard.” (People v. Clements (2022) 75
Cal.App.5th 276, 294–295.)
B. Standard of review
We review a trial court’s order after an evidentiary hearing
for substantial evidence. (Emanuel, supra, 17 Cal.5th at p. 885.)
“ ‘We “ ‘examine the entire record in the light most favorable to
the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value that would support a rational trier of fact in finding
[the necessary fact] beyond a reasonable doubt.’ ” [Citation.] Our
job on review is different from the trial judge’s job in deciding the
petition. While the trial judge must review all the relevant
evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
10
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.’
[Citations.]” (People v. Oliver (2023) 90 Cal.App.5th 466, 480
(Oliver).) Our substantial evidence review includes
circumstantial evidence and reasonable inferences drawn from
that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.) We may
reverse the trial court’s order only if it is clear that “ ‘ “upon no
hypothesis whatever is there sufficient substantial evidence to
support [it]” ’ . . . .” (People v. Zamudio (2008) 43 Cal.4th 327,
357.)
C. There was substantial evidence of direct aiding
and abetting with both express and implied
malice7
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) Malice may be express or
implied. (§ 188, subd. (a).) “A deliberate intent to kill constitutes
express malice. (§ 188, subd. (a)(1).) Implied malice is defined as
acting without provocation or with an ‘abandoned and malignant
heart’ (§ 188, subd. (a)(2)), which a long line of cases has
interpreted as acting with a conscious disregard for life.” (People
v. Morris (2026) 19 Cal.5th 671, 678.)
“The primary difference between express malice and
implied malice is that the former requires an intent to kill but
the latter does not.” (People v. Soto (2018) 4 Cal.5th 968, 976.)
“[I]t is well settled that intent to kill or express malice . . . may in
many cases be inferred from the defendant’s acts and the
7 The trial court found the People proved Hernandez was a
direct aider and abettor without stating whether this finding was
based on express or implied malice. We consider both theories.
11
circumstances of the crime.” (People v. Smith (2005) 37 Cal.4th
733, 741 (Smith).) Implied malice murder requires that the
killing be proximately caused by an act, “ ‘ “ ‘the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’ ” ’ [Citation.]” (People v. Reyes (2023) 14
Cal.5th 981, 988 (Reyes).) Proximate causation requires the act
to have been a substantial factor contributing to the death.
(Ibid.)
An aider and abettor’s guilt is “based on a combination of
the direct perpetrator’s acts and the aider and abettor’s own acts
and own mental state.” (People v. McCoy (2001) 25 Cal.4th 1111,
1117 (McCoy).) “A person aids and abets the commission of a
crime when [the person], (i) with knowledge of the unlawful
purpose of the perpetrator, (ii) and with the intent or purpose of
committing, facilitating or encouraging commission of the crime,
(iii) by act or advice, aids, promotes, encourages or instigates the
commission of the crime.” (People v. Cooper (1991) 53 Cal.3d
1158, 1164.)
Thus, to establish a defendant is guilty of express malice
murder as a direct aider and abettor, the prosecution must prove
beyond a reasonable doubt that the defendant aided, promoted,
encouraged, or instigated a killing while knowing and sharing the
perpetrator’s intent to kill. (McCoy, supra, 25 Cal.4th at p. 1118.)
“Express malice does not mean an intent to kill a specific person;
it is defined as the intent to unlawfully kill a person.” (People v.
Nguyen (2024) 103 Cal.App.5th 668, 679.)
To establish a defendant is guilty of implied malice murder
as a direct aider and abettor, the prosecution must prove beyond
12
a reasonable doubt that the defendant aided the perpetrator’s
commission of a life-endangering act with the “knowledge that
the perpetrator intended to commit the act, intent to aid the
perpetrator in the commission of the act, knowledge that the act
is dangerous to human life,” and the aider and abettor must act
“in conscious disregard for human life.” (People v. Powell (2021)
63 Cal.App.5th 689, 713, italics omitted, cited with approval by
Reyes, supra, 14 Cal.5th at p. 991.)
1. Acts of aiding and abetting
Viewing the evidence in the light most favorable to the trial
court order, the record contains substantial evidence that
Hernandez aided, promoted, or encouraged the commission of the
murder. He got into a car with two other gang members with the
express purpose of retaliation. A fellow gang member’s brother
had been shot and Hernandez indicated the group’s express
purpose was to “hunt” a rival gang member. In this context,
Hernandez supplied the murder weapon. A reasonable fact
finder could conclude based on these facts, beyond a reasonable
doubt, that Hernandez engaged in conduct that aided, promoted,
or encouraged the commission of the crime.
Hernandez contends that any inference that he handed
over his gun to Cricket for the shooting is “not solidly based on
the evidence and so cannot support the trial court’s ruling.” We
disagree. Hernandez told the deputies it was his gun and that he
handled it the day of the shooting. In recounting the incident, he
did not make any negative statements about Cricket using the
gun to shoot Frias. Instead, he was only angry or disdainful that
Tripper sold the weapon after the shooting. Hernandez claimed
to know “Cricket’s cool,” but described Tripper as “that other
fool,” who “did some bitch shit” and, in “a crack head move,” sold
13
the gun. Castro asked, “How come [Tripper] got the gun?” and
Hernandez replied, “He took it. He just took it.” Because it is
undisputed that Cricket was the shooter, there is a reasonable
inference that when Tripper “took” the gun to sell it, this was
after the shooting. Indeed, this was consistent with Castro’s
testimony about the conversation, in which he said that
Hernandez told him that after the shooting, Tripper took the gun
and sold it. Hernandez repeatedly affirmed the gun was his, and,
while he was free in his criticism of Tripper for taking the gun
and selling it, he at no point told the officers that Cricket had
taken the gun without his permission or that he did not want it
to be used in the shooting.
The lack of direct evidence that Hernandez willingly gave
Cricket his weapon for the shooting does not mean there is a lack
of substantial evidence to support the trial court’s findings.
“ ‘ “ ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’
[Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th
1, 11.)
2. Express malice
The record also contains substantial evidence that
Hernandez shared Cricket’s intent to kill. When Hernandez got
into Tripper’s car, he knew they planned to retaliate for the
killing of another gang member’s brother. (Smith, supra, 37
Cal.4th at p. 741 [“evidence of motive is often probative of intent
to kill”].) According to the gang expert, this would mean to
retaliate violently. Hernandez nodded “yes” when asked if he
“knew what was up” when they got in the vehicle. Cricket got out
14
of the car and quickly shot Frias because they thought he was
from the enemy gang. Hernandez also confirmed the men were
out “hunting.” Although it was Castro who used the term
“hunting,” and Hernandez merely agreed, the description was
consistent with what Hernandez explained in his own words:
“Castro: In the daytime? Damn, homey. You guys
just fucking rolled up on him real quick and busted—
“Hernandez: Yeah. Because . . . [¶] . . . [¶] they had
smoked another homey.
[¶] . . . [¶]
“Navarro: Your homey smoked some other fool before
that?
“Hernandez: No, they smoked the homey’s who
brother. So we wanted to, you know.
“Castro: Re-yeah, retaliation.
[¶] . . . [¶]
“Castro: Damn, homey. Do you think this fool was
from the other neighborhood or what? Mira—
“Hernandez: No.
“Castro: It was just one of those fucking—
“Hernandez: We thought he was enemiga (enemy).
“Castro: Huh?
“Hernandez: We thought he was enemiga (enemy).
“Castro: Oh.”
In addition, after the shooting, Cricket said, “got ‘em,”
suggesting that a killing—not something more minor—was part
of the plan. Hernandez supplied the gun, a predictably highly
deadly weapon. The inference that Hernandez knew Cricket
15
intended to kill a rival gang member that day was reasonable. It
was not necessary for Hernandez to state that he knew a rival
would be killed. (Smith, supra, 37 Cal.4th at p. 741 [express
malice may in many cases be inferred from the defendant’s acts
and the circumstances of the crime].) This evidence supported
the trial court’s finding that Hernandez participated in a plan to
kill a rival gang member with the intent to kill.
3. Implied malice
Further, the evidence was also sufficient to support the
conclusion that Hernandez acted with implied malice. If, as
Hernandez contends, the evidence only establishes that he
intended to retaliate “violently” and “assault” another gang
member, and not specifically to kill, there was substantial
evidence that Hernandez knew his conduct of giving the gun to
Cricket, and participating in the retaliatory hunt for a rival gang
member with a gun, endangered the victim’s life, and that he
acted with conscious disregard for life. The use of a firearm was
foreseeably dangerous to human life. (See People v. Cravens
(2012) 53 Cal.4th 500, 510–511 [punch to victim’s head was
predictably dangerous to human life]; People v. Schell (2022) 84
Cal.App.5th 437, 443 [evidence of implied malice where
defendant knew he was aiding violent group attack on victim and
knew bat and shovel were being used on victim].)
In addition, Hernandez and two others drove up in a car
and shot Frias, a stranger, unprovoked, while Frias was alone in
his vehicle. Factors such as the “victim’s vulnerability, the
number of assailants, the ferocity and duration of the attack, and
the unusualness or unexpectedness of the victim’s death,”
support the malice finding. (People v. Superior Court
(Valenzuela) (2021) 73 Cal.App.5th 485, 502.) Frias was alone,
16
the shooting was sudden, and he would not have expected it.
Hernandez was present before and during the crime. (See People
v. Glukhoy (2022) 77 Cal.App.5th 576, 599 [“It is well settled that
the presence at the scene of the crime and failure to prevent it,
companionship and conduct before and after the offense,
including flight, are relevant to determining whether a defendant
aided and abetted in the commission of the crime.”].) Hernandez
and the two other men also immediately fled and did not attempt
to help Frias. Failing to assist a wounded victim may manifest “a
callous indifference to human life.” (People v. Palomar (2020) 44
Cal.App.5th 969, 978.)
Reyes is instructive. In Reyes, the 15-year-old defendant
was in a park with other gang members. (Reyes, supra, 14
Cal.5th at p. 985.) One person showed the group a gun he was
carrying. (Ibid.) A few hours later, Reyes and some of the other
gang members left the park and biked to the edge of a rival
gang’s territory. (Ibid.) They called out for a passing car to stop,
chased after it, and attempted to encircle it. (Ibid.) Someone
fired a single shot at the car’s driver, killing him, and the riders
fled in different directions. (Ibid.) Reyes was convicted of second
degree murder. (Id. at p. 986.) Years later, a trial court denied
his resentencing request after an evidentiary hearing, finding
him guilty beyond a reasonable doubt of implied malice murder,
and the Court of Appeal affirmed. (Id. at p. 987.)
The California Supreme Court reversed. (Reyes, supra, 14
Cal.5th at p. 992.) It first held that there was no evidence that
Reyes’s conduct—biking to a rival gang territory with other gang
members—was a “ ‘substantial factor’ ” that proximately caused
the victim’s death. (Id. at pp. 988, 989.) It held that “acts that
merely create a dangerous situation in which death is possible
17
depending on how circumstances unfold do not, without more,
satisfy this causation requirement. There was no evidence that
Reyes’s acts precipitated or provoked the shooting. And there is
no reason to believe that the killing of [the victim] would not have
occurred if Reyes had not accompanied his fellow gang members
on the ride or participated in the chase.” (Id. at p. 989.)
Here, like Reyes, Hernandez was not the shooter.
However, unlike Reyes’s conduct, Hernandez’s “acts precipitated
or provoked the shooting.” (Reyes, supra, 14 Cal.5th at p. 989.)
Hernandez supplied the murder weapon and joined the shooter in
a car with the express purpose of finding a rival gang member to
shoot.
The Reyes court also determined that the trial court
misunderstood the law as to the mens rea requirement. By
relying on the jury instruction for implied malice murder without
reference to the elements of direct aiding and abetting, the trial
court failed to evaluate Reyes’s mental state concerning the life-
endangering act committed by the direct perpetrator. (Reyes,
supra, 14 Cal.5th at p. 992.) “[T]he trial court did not appear to
recognize that implied malice murder requires, among other
elements, proof of the aider and abettor’s knowledge and intent
with regard to the direct perpetrator’s life endangering act.” (Id.
at p. 991.) The Reyes court explained that “[h]ere, assuming the
life-endangering act was the shooting, the trial court should have
asked whether Reyes knew that Lopez intended to shoot at the
victim, intended to aid him in the shooting, knew that the
shooting was dangerous to life, and acted in conscious disregard
for life.” (Id. at p. 992.)
In this case, there was substantial evidence of each of these
factors. The trial court could reasonably conclude that
18
Hernandez knew Cricket intended to shoot a rival gang member.
The group was out hunting in retaliation for a killing; they had
brought a gun; and Cricket said, “got ‘em,” suggesting that
shooting a rival gang member was the plan. There is also
evidence that Hernandez intended to aid Cricket in the shooting
because he provided the murder weapon, and there was no
indication he was angry that Cricket used his gun or that he was
surprised by Cricket doing so. The trial court could reasonably
conclude that Hernandez had knowledge of Cricket’s intent, he
intended to assist him in his life-endangering act of using a gun
to retaliate against a person they believed was an enemy, and
that Hernandez acted in conscious disregard for life.
Substantial evidence supported the trial court’s finding
that the People established Hernandez was guilty of second
degree murder as a direct aider and abettor acting with either
express or implied malice.
II. Hernandez Forfeited His Argument that Youth
Diminished His Culpability and He Has Not
Established Ineffective Assistance of Counsel
Hernandez was 19 years old at the time of the murder. He
contends his youth was relevant to whether he acted with malice,
and the trial court erred by not expressly considering his age
when ruling on the petition. Hernandez concedes, however, that
he did not raise this argument in the trial court. The argument
is forfeited. (See In re Sheena K. (2007) 40 Cal.4th 875, 880–881.)
In April 2024, when the trial court ruled on the petition, the law
was no longer unclear as to the relevance of youth in the
evaluation of whether a youthful offender harbored the requisite
mental state. (People v. Pittman (2023) 96 Cal.App.5th 400, 416–
417 (Pittman) [it could not be presumed that the trial court
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implicitly considered youth where defendant’s age of 21 years
was not raised below, and the court denied the petition before
appellate courts decided the question]; Oliver, supra, 90
Cal.App.5th at p. 488 [declining to find forfeiture where
resentencing petition was denied in December 2020].)
There were multiple published cases concluding that youth
is a relevant factor bearing on mental state in section 1172.6
petitions. (People v. Jimenez (2024) 103 Cal.App.5th 994, 1004
[discussing pre-2024 history of considering youth in § 1172.6
petitions]; Pittman, supra, 96 Cal.App.5th at pp. 416–418.) There
were also several cases considering the youth of petitioners
similar in age to Hernandez at the time of the crime, and cases
concluding youth is a factor to be considered when determining
whether the evidence demonstrated malice. (See, e.g., Pittman,
at p. 417; People v. Mitchell (2022) 81 Cal.App.5th 575, 595 [18
years old at the time of the underlying offense].)
Hernandez contends that should this court find the
argument forfeited, his trial counsel was ineffective for failing to
raise the issue in the trial court. Yet, to establish ineffective
assistance of counsel, Hernandez must establish both (1) that
trial counsel’s failure to raise an argument regarding his age fell
below an objective standard of reasonableness under prevailing
professional norms, and (2) the failure was prejudicial.
(Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
Hernandez has not established prejudice.8 “[P]rejudice
must be affirmatively proved. [Citations.] ‘It is not enough for
8 Because Hernandez has not established prejudice, we need
not determine whether his trial counsel’s performance was
deficient. (Strickland, supra, 466 U.S. at p. 697 [no need “to
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the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding. . . . The defendant must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.’ [Citations.]” (People v.
Ledesma (1987) 43 Cal.3d 171, 217–218.)
As a Court of Appeal recently stated in considering youth in
the context of a section 1172.6 sentencing petition: “[T]he case
law discussing the differences in brain development among
youthful offenders (in contrast to their adult counterparts) stress
two areas of divergence: (1) their relative impulsivity; and
(2) their vulnerability to peer pressure.” (Oliver, supra, 90
Cal.App.5th at p. 489.) Hernandez does not identify any evidence
in the record that his youth diminished his culpability or that his
behavior was motivated by either of these factors. He merely
points to his age of 19 and the fact that Cricket and Tripper were
older.9 However, Hernandez does not cite any evidence of peer
pressure.
Additionally, there was also substantial evidence of
Hernandez’s intentional acts. There is evidence Hernandez knew
the plan was to travel to rival gang territory to retaliate for a
death and that he provided the gun. There is no evidentiary
basis to conclude that we are “presented with a situation where a
youthful offender was swept up in circumstances beyond his or
address both components of the inquiry if the defendant makes
an insufficient showing on one”].)
9 Hernandez was born in 1991. Cricket was born in 1974.
Tripper was born in 1982.
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her control that led to an unintended death.” (Oliver, supra, 90
Cal.App.5th at p. 489; see In re Harper (2022) 76 Cal.App.5th
450, 467–472 [denying habeas corpus petition because
defendant’s youth, even if relevant under felony-murder implied
malice analysis, did not mitigate his culpability because the
evidence showed he knew the plan was to kill victim].) The
evidence demonstrated that the shooting of a rival gang member
was preplanned, and there is no evidence that Hernandez was an
unwilling or impulsive participant.
In sum, Hernandez has not established ineffective
assistance of counsel due to trial counsel’s failure to argue the
trial court should consider his age in ruling on the resentencing
petition.
III. The Record Does Not Establish That the Trial Court
Failed to Act as an Independent Fact Finder
Hernandez contends that because the trial court asked
whether the matter was on calendar for a prima facie
determination, and also said it remembered the case, the court
relied only on its memory and failed to act as an independent fact
finder. The record does not support this contention.
A. Background
In April 2024, after several continuances, the parties
appeared for the evidentiary hearing before Judge Arnold. At the
beginning of the hearing, the trial court and counsel had the
following brief exchange:
“The Court: Is this Leobardo Hernandez?
“[Defense counsel]: Yes, your honor.
“The Court: This is Leobardo Hernandez, YA088222.
The case is here for—isn’t it to determine a prima
facie—
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“[Defense counsel]: It’s here for the—
“The Court: The evidentiary hearing?
“[Defense counsel]: Yes.
“The Court: Because I’m missing the minute orders.
[¶] All right. [To the prosecutor:] Do you have
something you want to present?
“[Prosecutor]: So I’ve submitted to the court the trial
transcripts in this matter.
“The Court: Right.”
The prosecutor reminded the court that he had submitted
the recordings from the Perkins operation into evidence, at Judge
Carter’s request. The court then heard the parties’ arguments.
At one point, when defense counsel mentioned his evidentiary
briefs, the court referenced the date of one of the briefs and said,
“I looked at that—yes, you’re right.” The parties did not present
any new evidence during the hearing.
At the end of the hearing, the trial court stated the reasons
for its ruling. The court began by saying it remembered the case
and then recited specific facts. For example, it stated that
Hernandez provided the gun to the shooter, and Hernandez
indicated that he knew what was going to occur when he got into
the car. The court found beyond a reasonable doubt that
Hernandez had directly aided and abetted the murder and denied
the petition.
B. The trial court is presumed to have followed
the law
At the evidentiary hearing on a section 1172.6 petition, the
“trial court acts as an independent fact finder to determine
whether the prosecution has met its burden . . . .” (People v.
Rodriguez (2024) 103 Cal.App.5th 451, 457; accord, People v.
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Guiffreda (2023) 87 Cal.App.5th 112, 123.)
The trial court’s statements at the hearing do not establish
that it failed to act as an independent fact finder. The court held
the evidentiary hearing after several continuances. That it
opened the hearing by asking if the case was before it “to
determine a prima facie,” does not show that it misunderstood its
task or was unprepared. The trial court quickly corrected itself
and responded, “right,” when reminded of the evidence in the
record. The court expressly referred to having looked at one of
the evidentiary hearing briefs. That the court did not also
expressly state that it had reviewed the submitted trial
transcripts does not permit us to presume it did not.
Moreover, while the trial court said it remembered the
case, it also recited numerous factual details from the trial
evidence and did not state or otherwise suggest that it was
relying solely on its memory of the trial. The record does not
establish that the trial court failed to act as an independent fact
finder. (See, e.g., People v. Martinez (2025) 108 Cal.App.5th 329,
338 [judge’s “mere statement, apparently in error, that she heard
the testimony at the original trial does not by itself demonstrate
she based her ruling on her memory of [the] testimony [at a co-
defendant’s trial] from more than a decade earlier”].)
Without such evidence, we do not presume trial court error.
(People v. Ramirez (2021) 10 Cal.5th 983, 1042 [“Absent evidence
to the contrary, we presume that the trial court knew the law and
followed it.”]; Ross v. Superior Court (1977) 19 Cal.3d 899, 913
[we presume official duty was regularly performed and trial court
followed established law]; Evid. Code, § 664.)
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DISPOSITION
The order denying Hernandez’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EGERTON, Acting P. J.
KARNOW, J.*
* Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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