Case 2:18-cv-08221-JLS-LAL Document 60 Filed 07/19/22 Page 1 of 2 Page ID #:4264

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 ENRIQUE HERNANDEZ, Case No. LACV 18-8221-JLS (LAL) 11 Petitioner, ORDER ACCEPTING REPORT AND

RECOMMENDATION OF UNITED

12 v. STATES MAGISTRATE JUDGE 13 W.J. SULLIVAN, 14 Respondent. 15 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge’s 18 Report and Recommendation, Petitioner’s Objections and the remaining record, and has made a 19 de novo determination. 20 In his Objections, Petitioner appears to refocus his claims for relief pursuant to a change 21 in California law. Specifically, “Senate Bill 1437 amended [California] Penal Code section 188, 22 effective January 1, 2019, and provided that, to be convicted of murder, a person must act with 23 malice aforethought, which ‘shall not be imputed to a person solely on his or her participation in 24 a crime.’”1 In other words, Senate Bill 1437 “eliminates natural and probable consequences 25 /// 26 27

28 1 Stevenson v. Madden, No. 20-CV-07340-VC, 2022 WL 867251, at *5 (N.D. Cal. Mar. 23, 2022) (quoting People v. Gentile, 10 Cal.5th 830, 838-39 (2020)). Case P:18-cv-08221-JLS-LAL Document 60 Filed 07/19/22 Page 2of2 Page ID #:4265

1 | liability for murder regardless of degree.”2 This change in state law, however, occurred after 2 | Petitioner’s conviction became final in state court. Accordingly, it was not applicable at etitioner’s trial, did not guide the state courts’ consideration of Petitioner’s judgment on appeal, 3 | Petit trial, did not guide the stat rt derat f Petit judgment on appeal and cannot serve as the basis for finding here that the state courts’ denial of Petitioner’s claims 4 d t the b for finding here that the stat rts’ denial of Petit l 5 | was unreasonable.3 Nevertheless, California provides an avenue for retroactive application of 6 | Senate Bill 1437. In fact, under California law, “the exclusive avenue for retroactive relief under 7 | Senate Bill 1437” is to petition the sentencing court for relief pursuant to California Penal Code 8 | section 1170.95.4 Although this avenue for retroactive relief is available to Petitioner in the state 9 | courts, he is not entitled to relief under such a state law here.5 10 Petitioner’s Objections otherwise lack merit for the reasons stated in the Report and J 11 | Recommendation. 12 Accordingly, IT IS ORDERED THAT: 13 1. The Report and Recommendation is approved and accepted; p pp 14 2. Judgment be entered denying the Petition and dismissing this action with & ying & 15 prejudice; and 16 3. The Clerk serve copies of this Order on the parties. 17

19 | DATED: July 19, 2022 ;

HONORABLE JOSEP L. STATON

20 UNITED STATES DISTRICT JUDGE 21 222 | —— A 53 2 Gentile, 10 Cal.5th at 847-48. 3 See Gulbrandson v. Ryan, 738 F.3d 976, 994-95, 1000 (9th Cir. 2013) (considering federal habeas claim through 94 | the lens of the state law in effect at the time of trial); Shackleford v. Hubbard, 234 F.3d 1072, 1078 (9th Cir. 2000) (same); Stevenson, 2022 WL 867251 at *5 (“At Stevenson’s trial, the court correctly instructed the jury on the law 25 in effect at that time. Likewise, the Court of Appeal’s denial of this claim in August 2018 was based on the law in effect at that time. Therefore, although the law has changed, it does not change the fact that, at the time the Court of 26 Appeal issued its decision, its ruling was objectively reasonable.”). 4 Gentile, 10 Cal. 5th at 853-59. 27 5 See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991); see also Wilson v. 28 Corcoran, 562 U.S. 1,5, 131 S. Ct. 13, 178 L. Ed. 2d 276 (2010) (“it is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts”) (original emphasis).