People v. Herns CA5

INTRODUCTION

In 1992, defendant Lee Andrew Herns was convicted of first degree murder and attempted robbery by means of force and fear. The jury found true that defendant was armed with a firearm in the commission of the offenses, but found untrue the related special circumstance allegation. The court imposed a 25 years to life sentence, plus an additional year for the firearm enhancement for the murder count and a concurrent term of three years for the attempted robbery. After the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing, alleging he could no longer be convicted of murder under the new laws. The court found defendant made a prima facie case for relief, but denied the motion for resentencing after holding a hearing. Defendant filed a timely notice of appeal. On appeal, defendant claims the trial court erred in denying his petition for resentencing. He asserts the not true finding on the special circumstance allegation established he was entitled to resentencing. Alternatively, he contends the court applied the wrong standard of review at the evidentiary hearing, relied on inadmissible evidence, and…