Filed 8/18/26 P. v. Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.
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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
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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
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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).)
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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.
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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.
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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]
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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.
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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.
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