People v. Hernandez CA2/3

INTRODUCTION

Petitioner Leobardo Hernandez appeals from the denial of his resentencing petition under Penal Code1 section 1170.95. Hernandez contends, and the People agree, that he made a prima facie showing of eligibility for relief and, as a result, the court should have issued an order to show cause and held an evidentiary hearing. We agree with the parties and, therefore, reverse the order denying Hernandez’s resentencing petition and remand the matter for further proceedings under section 1170.95.

BACKGROUND2

In 2015, Hernandez was tried by a jury for murder, along with several gang and firearm enhancements. At trial, no evidence was presented that Hernandez was the shooter; rather, the People relied entirely on aiding and abetting principles in pursuing Hernandez’s conviction. The trial court instructed the jury on two forms of aiding and abetting liability under which it could convict Hernandez of first degree murder: a direct aiding and abetting theory and a natural and probable consequences theory. Under the direct aiding and abetting theory, the court instructed the jury it could convict Hernandez of first degree murder if it found: (1) the perpetrator committed the…