Filed 10/15/20 P. v. Olivas CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A159163
v.
PEDRO JOAQUIN OLIVAS, (San Mateo County
Super. Ct. No. SC058741A)
Defendant and Appellant.
Defendant filed a petition for resentencing under Penal Code1
section 1170.95. The trial court denied defendant’s petition, finding he was
convicted as the actual killer. Defendant’s appellate counsel has filed a brief
in which he raises no issues and asks us to review the record independently
under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has advised
defendant of his right to file a supplemental brief to bring to this court’s
attention any issue he believes deserves review. Defendant did not do so.
Our review of the entire record reveals no arguable issues cognizable in this
appeal. We therefore affirm.
PROCEDURAL BACKGROUND
The San Mateo County District Attorney’s Office charged defendant on
June 2, 2005 with murder (§ 187, subd. (a)) and assault on a child resulting
1 All statutory references are to the Penal Code.
in death (§ 273ab). A jury convicted him in 2007 of both charges. The court
sentenced defendant to 25 years to life in prison. The Court of Appeal
affirmed his conviction and sentence in 2009. (People v. Olivas (Oct. 29, 2009,
A120088) [nonpub. opn.].)
In March 2019, defendant filed a petition for resentencing under
section 1170.95. He alleged he was not the actual killer, did not have the
intent to kill, was not a major participant in a felony, and could not be
convicted of murder because of changes to section 188. The trial court
appointed counsel to represent defendant.
The court denied defendant’s petition for resentencing explaining that
after reviewing the documentation, it was apparent defendant was convicted
as the actual killer.
FACTUAL BACKGROUND
We derive the facts from our prior nonpublished opinion upholding
defendant’s conviction, People v. Olivas, supra, A120088.
L.E. lived at her sister’s house with her sister’s family and a second
sister. L.E. gave birth to Fernando in October 2002. Three months later, she
returned to work leaving the infant with her sisters. On April 5, 2004, L.E.
moved out of her sister’s home and into an apartment.
Shortly after midnight on April 9, 2004, L.E. and defendant brought
Fernando, then 17 months old, to the Seton Medical Center in Daly City.
Though breathing, he was unconscious and unresponsive. Dr. Mark
Alderdice and the medical staff made efforts to resuscitate the child; however,
sadly, Fernando later died at Stanford Medical Center on April 13.
Within minutes of their arrival at the hospital, Alderdice asked
defendant what had happened. Defendant said Fernando had fallen off a bed
that was two to three feet high onto the carpeted floor, tried to get up, fell
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again, and bumped his head into a wall heater. Fernando was unresponsive.
According to defendant, no other incidents had occurred that might account
for the child’s comatose state.
Further examination of Fernando revealed bruising on his forehead
just above the nose and minor bruising on his legs. A CT scan revealed a
subdural hematoma on the right side of Fernando’s brain. He had retinal
hemorrhages in both eyes and was also bleeding from the gum area
underneath his upper lip. The tear to the tissue in the gum area appeared to
be fresh and likely occurred within a matter of hours before Fernando was
brought to the hospital. Residual blood was discovered in his throat.
Dr. Alderdice, a board-certified emergency medicine physician
practicing in that capacity since 1989 and the administrative director for the
emergency departments of 10 hospitals, suspected Fernando may have been
violently shaken due to the subdural hematoma with the retinal
hemorrhages. He thought it was “inconceivable” that the child would have
sustained the injuries he had as a result of a fall from the bed and bumping
his head into a wall heater.
Alderdice found defendant’s demeanor to be extremely unusual and
striking because he seemed agitated and angry unlike parents in that
situation who were typically fearful and upset over a child’s injury. Neither
parent told him the child had been hurt before the alleged fall from the bed.
Police Detective Albert Cisneros spoke with defendant and L.E. at
Seton Medical Center at 2:00 a.m. on April 9. Defendant told Cisneros he
had driven L.E. to the BART station at around 7:00 p.m. the preceding day
and Fernando was with them. Upon returning to the apartment, defendant
fed, bathed, and changed Fernando. After Fernando fell asleep, defendant
took him to the bedroom, and placed him in the center of the queen-sized bed
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with a pillow on either side of him. He left the room to call L.E. to find out
when she would be done at work. Defendant told L.E. words to the effect that
“he didn’t want to be kept waiting, he had to take care of his business. He
didn’t want to do this again.”
After finishing his call, defendant heard a “boom,” went into the
bedroom, and saw Fernando “stagger[ ] up on his feet” and then fall forward
and hit his head on the wall heater. The child fainted in his arms. He did
not know why he did not call 911. He took Fernando with him and went to
pick up L.E. at the San Francisco International Airport where she worked.
Though Cisneros told defendant his account was inconsistent with
Fernando’s injuries, defendant repeated the account he had already given,
and repeated that account again when he was reinterviewed at the police
station. Defendant told Cisneros the injuries to Fernando probably occurred
when the child was in the care of L.E.’s sisters.
Cisneros spoke with defendant on a third occasion on June 5, 2005.
Defendant initially repeated his earlier account but when Cisneros told him
the crime lab found blood on Fernando’s clothing, defendant stated for the
first time that Fernando had fallen from the couch earlier in the evening with
a baby bottle in his mouth. This fall, according to defendant, caused
Fernando to bleed from the gum area of his mouth. Once again, he reiterated
he had not been happy about how long he had to babysit for Fernando that
evening, this caused problems between him and L.E., and he was considering
ending his relationship with her. He also reiterated his claim that L.E.’s
family members were responsible for Fernando’s injuries.
Photos of Fernando taken by Detective Joseph Bocci at the Stanford
Medical Center showed “at least one dozen” bruises on Fernando, most of
which were on his head “running parallel with the eyebrow line along the
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bridge of the nose over to the opposite side of the temple.” There was “faint
bruising” at the “lower jaw line area,” and Bocci noticed a reddish circular
mark about the size of a 50-cent piece, in the middle of Fernando’s chest.
A criminalist determined the bed at the crime scene was two feet two
inches in height and was located four feet away from the wall heater. The
criminalist observed blood stains on a pillowcase and on the top sheet of the
bed, saw no signs of impact on the heater, and found no blood on it. A layer
of undisturbed dust was on the heater that would have been displaced if
someone had struck the heater. The criminalist opined the heater was not
disturbed within the previous nine hours or the night before.
L.E.’s sisters testified Fernando did not have any bumps, bruises,
broken bones or other injuries when he and his mother moved out on April 5,
2004. He never had any serious injuries when he lived with them.
Forensic pathologist Thomas Rogers performed Fernando’s autopsy.
He opined that Fernando died from “multiple blunt injuries,” consistent with
being beaten to death. In Dr. Rogers’s opinion, Fernando’s injuries were
inconsistent with having been caused by a fall off a bed, landing on a carpet,
and then hitting his head against a wall heater. It was significant that
Fernando sustained blunt injuries over a wide area of his body.
Neuropathologist Hannes Vogel examined Fernando’s brain. Dr. Vogel
opined that the subdural hematoma was a result of infliction of traumatic
injury. His examination suggested there may have been some injury to
Fernando’s spinal cord, as well. Vogel believed there was “no chance
whatsoever” that Fernando’s injuries occurred as a result of a fall from a bed
that was two feet off the floor. The multiple severe hemorrhages in front of
and behind Fernando’s retinas, in Vogel’s opinion, were indicative of a blunt
force trauma. Based on his examination, Vogel testified that although he
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could not exclude a severe car accident or fall from a high building as possible
causes of Fernando’s injuries, it would be a “stretch” to attribute injuries of
such severity even to a fall from a two-story building or a car accident
without restraints at 30 to 40 miles per hour.
Dr. Peter Egbert of the ophthalmic pathology laboratory at Stanford
Medical Center examined Fernando’s eyes, and concluded that the pattern of
injuries he observed “occurs exclusively . . . in abusive injuries.” In his
opinion, no explanation other than child abuse accounted for Fernando’s
retinal hemorrhages.
Forensic DNA analysis revealed that Fernando’s blood was on a baby
jumper located on the dresser, a baby pajama top found on the shower
curtain rod, as well as the pillowcase and top sheet taken from the bed.
Fernando’s blood was also found on the on the T-shirt defendant was wearing
on the night of the incident, along with defendant’s own blood. Another stain
on defendant’s T-shirt was found to contain a mixture of Fernando’s and
defendant’s blood.
The defense rested without introducing any evidence. In closing
argument to the jury, defense counsel maintained that defendant’s
statements to the police about the circumstances of Fernando’s injuries were
consistent and true, and urged the jury to find that the prosecution failed to
prove defendant’s guilt beyond a reasonable doubt.
DISCUSSION
Initially, we recognize the court in People v. Cole (2020) 52 Cal.App.5th
1023, 1028, recently held “that Wende’s constitutional underpinnings do not
apply to appeals from the denial of postconviction relief,” and that People v.
Serrano (2012) 211 Cal.App.4th 496, 500, 503, held the Wende “ ‘prophylactic
framework’ ” does not extend beyond the first appeal of right from a criminal
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conviction. Nonetheless, we have reviewed the record and found no arguable
issues.
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) limited
the felony-murder rule by adding subdivision (e) to section 189. That
subdivision provides: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death occurs is
liable for murder only if one of the following is proven: [¶] (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 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.)
Section 1170.95 permits defendants convicted of murder to seek
retroactive relief if changes in the law made by Senate Bill 1437 would affect
their previously sustained convictions. Such is not the case here.
The trial court correctly determined defendant was ineligible for relief
as a matter of law because he was the actual killer. We further note in
defendant’s prior appeal of his conviction, he did not raise the issue of
insufficiency of the evidence. Section 1170.95 relief is not available for a
defendant who personally commits murder. (See People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.) Accordingly,
we conclude defendant is not entitled to sentencing relief pursuant to
section 1170.95.
Having independently reviewed the record, we conclude there are no
reasonably arguable issues requiring further review. We thus affirm the
order denying defendant’s resentencing petition.
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DISPOSITION
The order denying the section 1170.95 petition is affirmed.
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MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
SANCHEZ, J.
A159163
People v. Olivas
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