Filed 10/8/20 P. v. Pardo CA2/1
(unmodified opinion attached)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303150
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA034850)
v.
ORDER MODIFYING
JOHNNY RAMIREZ PARDO, OPINION AND DENYING
REHEARING; NO CHANGE
Defendant and Appellant. IN JUDGMENT
THE COURT:
It is ordered that the opinion filed on September 30, 2020, be
modified as follows:
On page 12, the second full paragraph is deleted in its entirety,
beginning with the sentence, “In any case, Pardo’s appeal fails on the
merits.”
There is no change in the judgment. Appellant’s petition for
rehearing is denied.
____________________________________________________________
ROTHSCHILD, P. J. BENDIX, J. SINANIAN, J.*
Judge of the Los Angeles Superior Court, assigned by the Chief
*
Justice pursuant to article VI, section 6 of the California Constitution.
Filed 9/30/20 P. v. Pardo CA2/1 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303150
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA034850)
v.
JOHNNY RAMIREZ PARDO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rogelio G. Delgado, Judge. Affirmed.
Allen G. Weinberg, 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, Assistant
Attorney General, Idan Ivri and Wyatt E. Bloomfield, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
In 1998, a jury convicted Johnny Ramirez Pardo of
attempted murder, carjacking, and first degree murder, and
found true a special circumstance allegation that the murder was
committed during the commission of a carjacking. In 2019, Pardo
filed petitions for resentencing relief under Penal Code section
1170.951 for his murder and attempted murder convictions. After
reviewing the briefs of the parties, the court file, and the prior
appellate opinion (People v. Pardo (May 30, 2000, B119940)
[nonpub. opn.] (Pardo)), the trial court denied Pardo’s petitions.
On appeal, Pardo argues the trial court should have
proceeded to an evidentiary hearing to determine whether he was
a major participant who acted with reckless indifference to
human life under People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark). Pardo further
argues that contrary to the trial court’s ruling, section 1170.95
should apply to attempted murder. We conclude that neither
conviction is eligible for section 1170.95 relief and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, “Edgar Leiva was walking in an alley when a car
driven by [Marcelo Gabriel] Baeza’s wife, Candy, approached
him. Leiva knew the passenger, Pardo, [who was] a paraplegic
confined to a wheelchair. Pardo said he would take Leiva home,
and Leiva got in the back seat. [¶] . . . They arrived at Baeza’s
house [and] Candy went into the house. Shortly thereafter,
Baeza came out and got in the car. . . . Baeza then drove to a
house. Pardo did not answer Leiva’s query about what they were
doing. Baeza entered the house and returned with a man named
1 All unspecified statutory references are to the Penal Code.
2
Robert Ramirez (‘Thumper’). Leiva knew Thumper. The two
men had a history of fist fights. . . . [¶] Without discussion,
Baeza drove to an apartment complex and parked in a carport at
the rear. . . . Thumper got out and told Leiva to fight with him.
Leiva complied, and Thumper, who was much larger, beat him
for approximately two minutes. . . . Thumper returned to the
back seat, and Baeza drove out of the carport. Pardo called Leiva
over to the car. He reached out and pulled off Leiva’s shirt.
According to Leiva, four or five gunshots were fired at him from
the location where Pardo sat, about five feet away. Leiva was hit
in the right arm, stomach and hip.” (Pardo, supra, B119940.)
Leiva survived. Pardo told the police Baeza shot Leiva.
“In a videotaped conversation while he was in jail . . . ,
Baeza and his wife discussed assault weapon possession charges
against her. During a disjointed conversation about her arrest,
Baeza, using both arms as if he were propelling himself in a
wheelchair, told Candy to contact the mimed person. Candy
replied she had contacted that person, who told her it was her car
in which the gun was found and therefore it was her problem.
Candy also said she told one of the people responsible for those
charges, ‘[S]omebody’s gonna be real pissed off when he finds out
and he goes well he’ll understand. I go I don’t think so and don’t
forget you[’re] f---ing with his wife. He goes no he’ll understand
why I did it. I go why’d you do it. He goes I don’t want to [do] life
in the pen. He goes they get me I’m going back for life.’ The
Baezas then conclude that the 16-year-old girlfriend of the man
with whom Candy had spoken should have confessed to the gun
possession.” (Pardo, supra, B119940.)
3
Evidence was provided at trial that Baeza belonged to the
Mexican Mafia; and Pardo and Thumper belonged to local street
gangs.
“Six days after the Leiva shooting, Carmelo Gregorio . . .
was loading a wheelchair into his car in a convenience store
parking lot in Azusa at 6:38 a.m. He was with two girls in their
early 20’s and a wheelchair-bound man less than 30 years old.
The man sat in the car; the girls stood outside. Gregorio looked
afraid. Shortly thereafter, all four people and the car left.
“Around 7:15 a.m., gunshots were heard at a West Covina
park about five miles from the store. A car sped away. About 45
minutes later, police found Gregorio’s body at the park. . . . [¶]
Gregorio took 16 gunshot wounds to this head, shoulders, hips,
lower back, and buttocks. The locations of his wounds and the
shell casings suggested he had been repeatedly shot after leaving
his car. The next day, a newspaper published a front-page article
about the shooting. While at Baeza’s house, Pardo’s girlfriend
overheard Pardo say he had shot a man and that the shooting
had made headlines.
“During his taped police interview, . . . [Pardo] said he was
asked to ‘lure[ ]’ Gregorio from the convenience store. Using his
disability as his reason for asking for a ride, Pardo had Gregorio
drive to where Baeza and Thumper were waiting. When they
arrived, Baeza and Thumper ‘just rolled up on [Gregorio] . . .
[a]nd [Gregorio] . . . cooperated with them . . . at gunpoint. I did
what I had to do, and I was gone. And they went their way.’
Several times, Pardo suggested that Baeza shot Gregorio for
Gregorio’s car.” (Pardo, supra, B119940, fn. omitted.)
According to the third amended information, Pardo was
charged with Gregorio’s murder and carjacking. The third
4
amended information also alleged that Gregorio was murdered
during the commission of a carjacking within the meaning of the
special circumstance statute, section 190.2, subdivision (a)(17).
Neither Baeza nor Ramirez was charged with these crimes.
Pardo, Baeza, and Ramirez were charged with Leiva’s attempted
murder.
During closing argument, the People stated that “the
special circumstance is true if either during [the] carjacking Mr.
Pardo was himself the shooter and intended to kill, or he played a
major role in the carjacking.” The trial court instructed the jury
that in order to find true the special circumstance, it must find
that Pardo was the actual killer; with the intent to kill, aided and
abetted in the commission of first degree murder; or was a major
participant in the carjacking who acted with reckless indifference
to human life.2
A jury convicted Pardo of attempted murder, murder in the
first degree, and carjacking. The jury also found true the special
circumstance allegation that the murder was committed during
the commission of a carjacking. The record does not reveal under
which theory the jury found the special circumstance allegation
to be true. The jury also found the allegation that Pardo used a
firearm during the commission of Gregorio’s murder was not true.
Pardo admitted certain prior convictions, and the trial court
sentenced Pardo to a total of two life terms without the
possibility of parole plus 25 years.
2 We have before us only a portion of the closing argument
and jury instructions, which Pardo attached to his section
1170.95 petition.
5
On direct appeal, Pardo challenged his conviction on
several grounds, including that substantial evidence did not
support the special circumstance finding “that he intended to kill
Gregorio or aided and abetted the carjacking by being a major
participant, while acting with reckless indifference to human
life.”
This court determined that “[t]he fact that the jury [did not
find true] the personal firearm use allegation . . . does not mean,
as Pardo contends, the jury found he was not the actual killer.
There are any number of reasons a jury might have [made] its
not-true finding, none of which compels the conclusion that the
jury found Pardo was not the shooter. . . . [¶] In any event, the
jury could reasonably have found Pardo guilty on aiding and
abetting grounds with the intent to kill or as a major participant
with reckless indifference to human life. Pardo lured Gregorio to
the spot where he was killed. Baeza wanted the car and was a
killer. Having delivered Gregorio and his car, Pardo simply left,
as he told it. He did not try to help Gregorio. Six days earlier,
Pardo, Baeza and Thumper tried to kill Leiva with a gun. Thus,
there was ample evidence from which the jury could conclude
that Pardo was an active participant in the carjacking with
reckless indifference to human life.”3 (Pardo, supra, B119940.)
We affirmed Pardo’s conviction and remanded to the trial court
3 On direct appeal, Pardo also argued there was not
substantial evidence that he knew Baeza was going to commit a
carjacking and could not be convicted as an aider and abettor in
the murder committed by Baeza. We determined “[t]he jury
could reasonably have concluded from such evidence that Pardo
had the requisite knowledge to be guilty of aiding and abetting
the carjacking.” (Pardo, supra, B119940.)
6
only for the trial court to amend Pardo’s abstract of judgment to
reflect the $200 restitution fine imposed on Pardo.
In 2015 and 2016, the California Supreme Court clarified
under what circumstances a defendant could be deemed a major
participant in an underlying felony who acted with reckless
indifference to human life in Banks, supra, 61 Cal.4th 788 and
Clark, supra, 63 Cal.4th 522. Then, in 2018, the Legislature
passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437), which, among other things, enacted section 1170.95 to
permit resentencing in certain circumstances of persons convicted
under the felony-murder rule. (§ 1170.95, subd. (a).)
On January 28, 2019, Pardo petitioned the trial court for
resentencing relief relating to his murder conviction pursuant to
section 1170.95. According to documents filed by the prosecution,
the trial court requested the prosecution provide an informal
response to Pardo’s petition. Prior to the prosecution filing its
response, Pardo, via his court-appointed counsel, filed a
supplemental petition in which he also sought resentencing for
his attempted murder conviction. The prosecution filed its
response, and Pardo filed his reply.
At a December 4, 2019 hearing, the parties submitted on
their papers. The trial court denied resentencing relating to
Pardo’s conviction for murder on the basis that “the appellate
opinion affirming the petitioner’s conviction [and] sentence
reflects that the defendant was a major participant who aided
with reckless indifference to human life.” The trial court also
denied Pardo’s request to resentence him for the attempted
murder conviction because “attempted murder is not covered by
this law.”
7
Pardo timely appeals the trial court’s denial of his section
1170.95 petitions.
DISCUSSION
A. Senate Bill 1437 Modifies Accomplice Liability for
Murder
The Legislature passed Senate Bill 1437 “to amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f); see § 189, subd. (e).)
Accordingly, Senate Bill 1437 amended sections 188 and 189 to
limit the natural and probable causes doctrine and the felony
murder rule. (See §§ 188, 189, subd. (e).)
Senate Bill 1437 also enacted section 1170.95. Under
subdivision (a) of section 1170.95, a person convicted of first or
second degree murder may petition a trial court for resentencing
“when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine. [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder. [¶] (3) The petitioner could not
be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (Ibid., italics
added.)
8
If a petitioner makes a prima facie showing that he or she
falls within the provisions of subdivision (a) of section 1170.95,
the trial court must then appoint counsel and order briefing to
determine whether petitioner has made a prima facie showing
that he or she is entitled to relief. (Id., subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 332, review granted Mar. 18,
2020, S260493 [concluding under subd. (c) of § 1170.95, petitioner
must demonstrate two prima facie showings]; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18,
2020, S260598 [holding § 1170.95, subd. (c) does not require
appointment of counsel “until the court makes the threshold
determination that petitioner ‘falls within the provisions’ of the
statute”].) If the petitioner satisfies both steps of making a prima
facie showing, then the trial court must issue an order to show
cause why resentencing relief should not be granted. (§ 1170.95,
subd. (c); Verdugo, supra, at pp. 328-329.) “At the hearing to
determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing. . . .”
(§ 1170.95, subd. (d)(3).)
B. The Trial Court Did Not Err in Denying Pardo’s
Petitions
Section 1170.95 Does Not Apply to Attempted Murder
Pardo argues section 1170.95 resentencing relief should
extend to his conviction for attempted murder. In particular,
Pardo argues statutory remedial benefits should extend to lesser
included offenses and excluding attempted murder from the
operation of section 1170.95 raises equal protection concerns.
Appellate courts have already considered and rejected
those arguments. (See, e.g., People v. Alaybue (2020) 51
9
Cal.App.5th 207, 222 [holding § 1170.95 does not apply to
attempted murder and finding that declining to apply the statute
to attempted murder does not produce absurd results]; People v.
Medrano (2019) 42 Cal.App.5th 1001, 1016-1018, review granted
Mar. 11, 2020, S259948 [finding § 1170.95 does not apply to
attempted murder]; People v. Larios (2019) 42 Cal.App.5th 956,
970, review granted Feb. 26, 2020, S259983 [finding § 1170.95
does not apply to attempted murder]; People v. Munoz (2019) 39
Cal.App.5th 738, 754, review granted Nov. 26, 2019, S258234
[rejecting arguments that not extending Senate Bill 1437 to
attempted murder violates equal protection and produces absurd
results, or that because attempted murder is a lesser included
offense of murder, § 1170.95 should apply to attempted murder
convictions]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-
1105, review granted Nov. 13, 2019, S258175 [holding not
extending Senate Bill 1437 to attempted murder does not violate
equal protection].)4
Indeed, Pardo acknowledges that no appellate court has
found that section 1170.95 applies to attempted murder. The
trial court properly concluded Pardo’s sentence for attempted
murder was ineligible for relief under section 1170.95 as a matter
of law.
Pardo’s Sentence for Murder is Not Eligible for
Section 1170.95 Relief as a Matter of Law
4 We recognize that our Supreme Court has granted review
as to whether Senate Bill 1437 extends to attempted murder
based on a natural and probable consequences theory. (See
People v. Lopez (2019) 451 P.3d 777.) However, Pardo does not
make any arguments that persuade us to depart from the
holdings of these opinions.
10
Pardo argues that consistent with the appellate opinion in
People v. Torres (2020) 46 Cal.App.5th 1168, review granted
June 24, 2020, S262011, we should remand and order the trial
court to hold an evidentiary hearing as to whether Pardo was a
major participant in the carjacking who acted with reckless
indifference to human life. Pardo contends Torres holds that a
special circumstance finding made prior to Banks and Clark does
not support the trial court’s conclusion that Pardo is ineligible for
section 1170.95 relief as a matter of law.
We disagree with Torres’s construction of section 1170.95 in
this regard. (See People v. Galvan (2020) 52 Cal.App.5th 1134.)
As we recently held in Galvan, “the proper remedy for
challenging a special circumstance finding is by a petition for
habeas corpus, not a petition for resentencing under section
1170.95.” (Id. at p. 1137; People v. Gomez (2020) 52 Cal.App.5th
1, 17.)5
Pardo cannot make the initial prima facie showing required
under section 1170.95, subdivision (a)(3) that he now could not be
convicted of first or second degree murder because of the changes
to section 188 or 189. A defendant may still be convicted of felony
murder under amended section 189, subdivision (e) if “(1) The
person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
5 Pardo has brought to our attention Division Five’s recent
opinion, People v. York (Sept. 3, 2020, B298635) ___ Cal.App.5th
___ [2020 WL 5249362]. The People have also brought to our
attention our recent opinion, People v. Murillo (Sept. 1, 2020,
B297546) ___ Cal.App.5th ___ [2020 WL 5201302]. We will follow
Murillo.
11
the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e),
italics added.)
Thus, Pardo’s petition does not depend on Senate Bill
1437’s changes to the felony-murder rule. Rather, as in Galvan,
Pardo’s petition depends on “the clarification of the requirements
for the special circumstance finding in Banks and Clark.” (People
v. Galvan, supra, 52 Cal.App.5th at p. 1142.) Because the proper
vehicle for such a challenge is a petition for writ of habeas corpus,
the trial court did not err in summarily denying Pardo’s petition.
(See id. at pp. 1137, 1142.)
In any case, Pardo’s appeal fails on the merits. The court’s
opinion in the direct appeal concluded that there was sufficient
evidence that he aided and abetted the murder with the intent to
kill. Thus, under People v. Lewis, supra, 43 Cal.App.5th at
pp. 1137-1139 and People v. Verdugo, supra, 44 Cal.App.5th at
p. 333, he would not be able to make a prima facia showing for
relief.
12
DISPOSITION
The December 4, 2019 order denying Pardo’s petition is
affirmed.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
13