People v. Hernandez CA5

INTRODUCTION

In 2007, a jury convicted petitioner Jose Hernandez of the first degree murder of Jeffrey Donaldson (Pen. Code,1 § 187, subd. (a); count 1), with a robbery/burglary special circumstance (§ 190.2, subd. (a)(17)), and the attempted murder of Officer G. Byerlee (§§ 187, 664, subd. (e); count 2).2 (People v. Hernandez (May 22, 2009, F054280) [nonpub. opn.] (Hernandez).) In 2019, petitioner filed a petition for resentencing on his murder conviction pursuant to section 1170.95. The court summarily denied the petition on the ground petitioner was ineligible for resentencing. On appeal, petitioner asserts he established a prima facie claim for resentencing relief on count 1, and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. He further contends he is entitled to resentencing on count 2, although he did not raise this contention below. We conclude the court did not err in summarily denying the petition for resentencing on count 1 because the record establishes petitioner is ineligible for resentencing on that count as a matter of law. For reasons we explain, we decline to address petitioner’s…