THE PEOPLE, Plaintiff and Respondent, v. ALBERTO BETO HERNANDEZ, Defendant and Appellant.
B302815
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
Filed 1/22/21
CERTIFIED FOR PUBLICATION
Los Angeles County Super. Ct. No. A710815
David Andreasen, 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, and Idan Ivri and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Effective January 1, 2019 the Legislature changed the law governing whether a defendant can be convicted of murder under a felony murder or natural and probable consequences theory. To limit the scope of the first doctrine and eliminate entirely the second, the Legislature enacted
But the Legislature also enacted an exception to the exception in
Alberto Hernandez relies on this apparent legislative misstep in his appeal from the superior court‘s order denying his petition under
We conclude the superior court correctly ruled
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Hernandez of Felony Murder and Burglary
1. Hernandez Burglarizes an Electronics Store with a Friend, Who Shoots a Police Officer
On June 7, 1988, shortly after midnight, Hernandez and his friend Bobby Steele broke into an electronics store and activated a burglar alarm. Four officers of the Los Angeles Police Department, including Officer James C. Beyea and his partner Officer Ignacio Gonzalez, responded to the alarm. After finding no one in the store, Officer Beyea and Officer Gonzalez drove to a police telephone about 100 yards from the store to call the store‘s owner. The store‘s alarm, however, sounded again. Believing the suspects may have returned to the store, Officer Beyea and Officer Gonzalez went back to the store without turning on the lights on their patrol car so they could “sneak up on the suspects.”
As they approached the store, Officer Gonzalez saw a suspect in a white jacket leaving through a sliding door. The suspect ran down a driveway to the back of the store, and Officer Gonzalez pursued him in the patrol car. When Officer Gonzalez and Officer Beyea arrived at the back of the store, Officer Gonzalez saw another suspect, wearing dark clothing, running through a shipping yard on the other side of a fence from the
Meanwhile, at 1:00 a.m. a woman living in an apartment complex near the electronics store heard “hysterical crying or laughing” outside her window. After hearing something “clanking” on a chain-link fence behind her building, she looked outside and saw two men, one wearing dark clothing and the other wearing a white jacket, crouched and talking in low voices. The men got up and ran in the same direction. Less than a minute later, the woman heard two gunshots. She saw police lights in the area and a police helicopter, but called the police anyway.
2. The Police Find Hernandez and Steele
At 1:30 a.m. police officers found Hernandez, alone and unarmed, hiding in bushes half a block from the electronics store. Officers also discovered stereo equipment in nearby bushes. Officers eventually found Steele hiding in the attic of an abandoned house, where officers killed him during a confrontation. The officers found Officer Beyea‘s gun next to Steele‘s body.
Police detectives interviewed Hernandez, who admitted he was involved in the burglary. Hernandez said he and Steele fled the electronics store when they heard helicopters. Hernandez stated that he followed Steele as Steele climbed over a wall, but that when he saw a police officer chase Steele on the other side, Hernandez ran in a different direction and hid in the bushes. Hernandez said that he did not see the officer confront Steele, but that, after he heard gunshots, he saw Steele run past him. Hernandez remained hidden in the bushes until police found him. Hernandez told police Steele did not have a gun.
4. A Jury Convicts Hernandez of Felony Murder, and This Court Affirms but Modifies the Judgment
The People charged Hernandez with first degree murder and commercial burglary and alleged a principal was armed with a firearm, within the meaning of
B. The Legislature Enacts Senate Bill No. 1437 and Establishes the Section 1170.95 Petition Procedure
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder by amending
Senate Bill No. 1437, through new
If the court issues an order to show cause, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (
C. Hernandez Files a Petition Under Section 1170.95
On January 4, 2019 Hernandez filed a petition under
The superior court appointed counsel for Hernandez, and the prosecutor filed a response to Hernandez‘s petition. The prosecutor argued Hernandez was ineligible for relief under
The superior court found Hernandez made a prima facie showing he fell within the provisions of
The court held an evidentiary hearing and denied the petition. The court ruled Hernandez was not entitled to relief under
DISCUSSION
A. The Prosecution Does Not Have To Prove Malice To Convict a Defendant of Felony Murder Under Section 189, Subdivision (f)
1. Applicable Law
“The construction and interpretation of
2. Section 189, Subdivision (f), Is an Exception to the Malice Requirement of Section 188, Subdivision (a)(3)
As discussed, Hernandez‘s primary argument is essentially based on a drafting oversight:
Hernandez‘s proposed interpretation, however, would lead to an absurd result: It would make it no easier for prosecutors to convict defendants of murder where the victim is a peace officer than it would be where the victim is not a peace officer. We cannot adopt such an interpretation. To the contrary, “[w]e must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246; see People v. Bullard (2020) 9 Cal.5th 94, 107 [courts must interpret statutes to avoid absurd results]; People v. Cook (2015) 60 Cal.4th 922, 938, fn. 2 [courts interpret statutes to “avoid an absurd result the Legislature could not have intended“]; In re Greg F. (2012) 55 Cal.4th 393, 410 [“courts are obligated to ‘adopt a common sense construction over one leading to mischief or absurdity‘“]; People v. Elliot (2005) 37 Cal.4th 453, 478 [“‘We will avoid any interpretation that would lead to absurd consequences.‘“].) Even where the language appears clear, “it is settled that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences that the Legislature did not intend. To this extent, therefore, intent prevails over the letter of the law and the letter will be read in accordance with the spirit of the enactment.” (In re Michele D. (2002) 29 Cal.4th 600, 606; see City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616 [courts must generally follow the plain meaning of statutory language, “unless a literal interpretation would result in absurd consequences the Legislature did not intend“]; People v. Ledesma (1997) 16 Cal.4th 90, 95 [“[i]t is a settled principle of statutory interpretation that language of a statute should not be given a
Hernandez‘s interpretation is also contrary to the policy of supporting and protecting peace officers engaged in the performance of their duties. For example, in its uncodified findings and declarations for
Consistent with this policy and the applicable principles of statutory interpretation,
The legislative history of Senate Bill No. 1437 eliminates any doubt this is the proper interpretation of
Finally, our interpretation of the statute is consistent with a leading treatise on California sentencing law, which explains
B. Hernandez Is Not Entitled to Relief Under Section 1170.95 Because He Could Be Convicted of Murder Under Current Law
Hernandez argues that, because “this court determined 30 years ago that [he] was convicted of second degree murder, he cannot now be tried for, and thus could not be convicted of, first degree murder.” Hernandez asserts he is entitled to relief under
While Hernandez may be right about second degree felony murder (see In re White (2019) 34 Cal.App.5th 933, 937, fn. 2 [under Senate Bill No. 1437 “the second degree felony-murder rule in California is eliminated“]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1142, fn. 3 [Senate Bill No. 1437 “brings into question the ongoing viability of second degree felony murder in California“]), he is wrong about
And even if it were, the exception to the law of the case doctrine for intervening changes in the law would apply. (See People v. Jurado (2006) 38 Cal.4th 72, 94; People v. Whitt (1990) 51 Cal.3d 620, 638-639.) As discussed, in McDonald, supra, 37 Cal.3d 351 the Supreme Court held
Finally, Hernandez contends “trying him for first degree murder would violate the Double Jeopardy Clause.” An evidentiary hearing under
C. Hernandez Knew or Should Have Known the Victim Was a Police Officer Engaged in the Performance of His or Her Duties Before Hernandez Reached a Place of Temporary Safety
The superior court found Hernandez “knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer‘s duties” under
1. Applicable Law
In People v. Wilkins (2013) 56 Cal.4th 333 (Wilkins) the Supreme Court addressed “whether ‘a killer [is] liable for first degree murder if the homicide is committed in the perpetration of a . . . burglary.‘” (Id. at p. 342.) The Supreme Court in Wilkins acknowledged that People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt) addressed “a nonkiller‘s liability for the felony murder committed by another.” (Wilkins, at p. 342, quoting Cavitt, at p. 196.) Under Cavitt a nonkiller like Hernandez is liable for felony murder “if the killing and the felony ‘are parts of one continuous transaction.‘” (Cavitt, at p. 207; see id. at p. 208 [“[t]he continuous-transaction doctrine . . . defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction” (italics omitted)].)
A related but distinct doctrine called the “escape rule” defines the duration of the underlying felony by deeming the felony to continue until the felon has reached a place of temporary safety. (Cavitt, supra, 33 Cal.4th at p. 208; see Wilkins, supra, 56 Cal.4th at p. 341.) When a killing occurs while a perpetrator attempts to flee, “the escape rule establishes the ‘outer limits of the “continuous-transaction” theory.‘” (Wilkins, at p. 345.) Thus, “[u]nder the felony-murder rule, a strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction. [Citation.] This transaction may include a defendant‘s flight after the felony to a place of temporary safety.”
2. Hernandez Was Still in Flight When He Knew or Reasonably Should Have Known the Victim Was a Peace Officer Acting in the Course of His Duties
Hernandez argues that the burglary ended when he left the electronics store and that he had to have had the requisite knowledge under
For purposes of liability for felony murder, the burglary of the electronics store and the killing of Officer Beyea were parts of one continuous transaction because Hernandez had not yet reached a place of temporary safety. Hernandez and Steele fled the store with stolen merchandise when they heard helicopters. After they jumped a fence and hid under an apartment building, a resident called the police to report prowlers. Hernandez and Steele then climbed over a wall and, once on the other side, Hernandez saw Officer Beyea chase Steele. Hernandez took refuge in nearby bushes, but soon heard multiple gunshots and saw Steele run past him. Police officers apprehended Hernandez less than 30 minutes later, about an hour after Officer Beyea first responded to the scene. This evidence amply supported the superior court‘s finding Hernandez knew the victim was a peace officer engaged in the course of his duties as a peace officer before Hernandez reached a place of temporary safety. (See People v. Russell, supra, 187 Cal.App.4th at p. 992 [defendant had not reached a place of temporary safety where his flight from police by car at over 100 miles per hour evidenced his “fear of apprehension“]; People v. Young (1992) 11 Cal.App.4th 1299, 1306 [defendant had not reached a place of temporary safety where a witness, having spotted the defendant within four blocks of a robbery, called the 911 emergency operator and two minutes later the defendant fled at high speed]; People v. Johnson, supra, 5 Cal.App.4th at p. 561 [defendant had not reached a place of temporary safety where he was “in constant flight” from police].)8
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.