People v. Pineda CA2/2

Filed 6/1/21 P. v. Pineda CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B304786

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA126268)
v.

ALEJANDRO PINEDA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County. Roger T. Ito, Judge. Affirmed.

Thomas Ian Graham for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Stacy S. Schwartz, Deputy
Attorneys General, for Plaintiff and Respondent.

______________________________
 In 2011, defendant and appellant Alejandro Pineda was
involved in two separate criminal incidents: In the first, he
assaulted and robbed Marc Wilkinson (Wilkinson); in the second,
he was involved in a similar scenario during which Jaime
Augustin Negrete (Negrete) shot and killed Hugo Ortiz (Ortiz).
After being charged with various crimes, in 2015, a jury
convicted defendant of first degree residential robbery (Pen.
Code, § 211; count 2);1 assault with a firearm (§ 245, subd. (b);
count 3); murder (§ 187, subd. (a); count 4); and first degree
burglary (§ 459; count 8).2 He was sentenced to life in state
prison without the possibility of parole, plus 25 years to life. On
direct appeal,3 we reversed the jury’s true findings on section
12022.53 enhancements attached to counts 3 and 8, and agreed
with the parties that defendant’s sentence on count 3 should have
been stayed pursuant to section 654; we remanded the matter to
the trial court with directions. (People v. Negrete (May 30, 2017,
B265670) [nonpub. opn.], p. 3 (Negrete).)
In 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. After reviewing the petition, the
People’s oppositions, and defendant’s replies, the trial court found

1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Counts 1 through 3 related to the incident involving
Wilkinson. Count 1 charged defendant with attempted murder;
the jury found defendant not guilty on this count. Counts 4 and 8
concerned the incident during which Ortiz was killed.
3 The direct appeal was brought by defendant and Negrete.

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that defendant had established a prima facie case and held an
evidentiary hearing pursuant to section 1170.95, subdivision (d).
Following the presentation of evidence and argument, the trial
court denied defendant’s petition, finding that he was a major
participant in the underlying felony and acted with reckless
disregard for life.
Defendant timely filed a notice of appeal, arguing that
insufficient evidence supports the trial court’s finding that he was
a major participant in the armed robbery who acted with reckless
indifference to human life.
Because the trial court’s order is supported by substantial
evidence, we affirm.
FACTUAL BACKGROUND
The Crimes
On August 20, 2011, Wilkinson went to Los Angeles to buy
marijuana from defendant. After meeting in a public parking lot,
the men drove together in Wilkinson’s car to a house in Bell
Gardens. As soon as Wilkinson approached a detached garage at
the residence, defendant shoved him. At that moment, two men
approached Wilkinson with baseball bats, demanding money.
One man hit Wilkinson in the leg, and Wilkinson struggled with
the men. Then, a third man approached with a gun. All the
while, defendant stood by the door. Wilkinson pleaded for his
life, and the men took his money, phones, wallet, and knife. After
threatening to kill him if he said anything, the men eventually
walked Wilkinson to his car and let him drive away. (Negrete,
supra, B265670, at pp. 5–6.)
Several months later, on December 17, 2011, Jaime
Martinez (Martinez) agreed to go with Ortiz and Adam Rosales to
meet up with defendant, who was acting as a “‘middle man’” in a

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drug transaction, at a doughnut shop. (Negrete, supra, B265670,
at pp. 5–6.)
After a five-minute conversation at the doughnut shop, the
group followed defendant to the Bell Gardens house. Once at the
location, defendant told Ortiz to leave his gun behind in the car,
and the men followed defendant to the detached garage.
(Negrete, supra, B265670, at p. 6.)
As soon as the group entered the garage, they were
“‘ambushed’” by men with a wooden baseball bat and a gun. At
some point, defendant struck Martinez with the bat. As this was
occurring, Negrete shot and killed Ortiz. (Negrete, supra,
B265670, at pp. 6–7.)
Gang Evidence
At trial, a gang expert testified that Negrete was a member
of the Bratz gang and that the house where the crimes occurred
was a long-standing Bratz location. He was not familiar with
defendant and did not believe that he was a member of the gang.
That said, the expert opined that the crimes were committed in
association with or for the benefit of the Bratz gang. (Negrete,
supra, B265670, at pp. 8–9.)
PROCEDURAL BACKGROUND
On May 14, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. At the initial hearing
on December 9, 2019, the trial court granted an order to show
cause and ordered an evidentiary hearing pursuant to
subdivision (d). Also at that time, the parties stated that they did
not intend to call witnesses at the evidentiary hearing, and they
agreed that the trial court could consider the record of conviction.
At the January 16, 2020, evidentiary hearing, the trial
court indicated that to prepare for the hearing, it had reviewed

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“the entirety of the record of conviction including the trial
transcripts.” It then detailed the facts of the crimes as follows:
“So [defendant] was, for lack of a better word, a
. . . facilitator for two distinct robberies, one of which the victim’s
name was Mark Wilkinson, which predates the murder case—or
should I say the felony murder case by about three or four weeks.
“And in that particular case Mr. Wilkinson and [defendant]
had agreed to a drug transaction. [Defendant] took
Mr. Wilkinson to the location where the transaction was to take
place. Mr. Wilkinson had a substantial amount of cash with him.
Mr. Wilkinson was directed where to go and Wilkinson—
[defendant] followed or I should say directed Mr. Wilkinson to go
into a garage type location, which is according to testimony, is a
known Bratz street gang hangout.
“Once in the location, Mr. Wilkinson relate[d] he was
pushed by [defendant] into the garage or into that room and
immediately confronted by multiple individuals armed with
baseball bats, some of whom struck Mr. Wilkinson, and
Mr. Wilkinson was threatened not by [defendant] but by two
individuals who were at that location who pointed guns at him.
One racked a round and said words to the effect give us the
money or we’ll quote, unquote, ‘Blow your fucking head off.’
Mr. Wilkinson complied. [¶] . . . [¶]
“Subsequent to that date, [defendant] once again acted as
a go-between or as a facilitator for a second transaction. This
time between several individuals who were the victims on the
187, the 211/187 case, an individual named Rosales, the victim
Ortiz . . . .
“In any event, it’s at least two individuals. . . . [¶] . . . [¶]
And those individuals were driven to the location by [defendant],

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either were driven to or were accompanied to the location in a
vehicle by [defendant]. [Defendant] instructed them to relinquish
any firearms that they had in their possession at the time, that
they were going to go into the garage area. Once again, the
known Bratz gang hangout. [¶] . . . [¶]
“[Defendant] directed the three individuals, number one, to
relinquish their firearms. I think it was Mr. Ortiz who had a
firearm on him who removed it and put it under the car seat, and
the three victims went into the location ostensibly for the purpose
of purchasing methamphetamine.
“[Defendant]—there was statements, testimony to the
effect that [defendant] told Ortiz and/or the other individuals
don’t bring a gun with you because there might be children or
something to that effect. Then [defendant] and the three victims
went into the location, whereupon [defendant] pushed one of the
three victims, I think it was Mr. Martinez, to the ground.
Martinez was then assaulted by individuals with baseball bats.
“Mr. Martinez relates that it was [defendant] who used a
baseball bat on him. . . .
“So for the most part I think that is the extent of the fact
pattern that was presented at the trial of both . . . [defendant]
and Negrete. [Defendant] was convicted of the felony murder not
as the actual shooter but as a participant, as an aider and abettor
on that 211 count.”
After some discussion by counsel of the sequence of events,
the trial court continued:
“There were varying accounts of exactly the sequence that
takes place in the garage. . . .
“But more specifically for my analysis I do want to note the
following. I’ve had a chance to review the appellate record

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which—in which the appellate court made some specific findings
that are along the lines of the analysis that is used for 1437,
1170.95. That is specifically for the special circumstance to apply
the law requires that the person be a major participant and that
he act with reckless disregard.
“Those were analys[e]s that the Court of Appeal actually
said, well, [defendant] was a major participant in the fact he
acted with reckless disregard.[4] The analysis for 1170.95
purposes—I don’t know if it’s exactly the same analysis, but I’m
going to go ahead and indicate for my own purpose I kind of
reviewed it de novo.
“But keeping in mind that the Court of Appeal did make
those findings, I’m not resting my own analysis exclusively to the
Court of Appeal’s analysis because I’m not quite certain that it’s
exact same analysis. I don’t know if that was the intention, but I
do know that was included in the special circumstance allegation.
In order for him to find special circumstance, you have to have
those two things as a nonshooter.”
After defense counsel erroneously argued that our opinion
in Negrete, supra, B265670, at page 16, deeming defendant a

4 It appears that the trial court is referring to our finding in
Negrete that defendant “was a major participant in the burglary,”
by “lur[ing] Ortiz and his companions to the garage,” disarming
them, and then “actively participat[ing] in the ‘ambush.’”
(Negrete, supra, B265670, at pp. 16–17.) We also held that
defendant acted with reckless indifference to human life by
“actively participat[ing] in an armed robbery with known gang
members,” “purposely disarm[ing] Ortiz and his companions,
leaving them helpless during an attack that he knew was going
to occur. And, after the shooting, [defendant] fled the garage and
failed to summon help.” (Negrete, supra, B265670, at p. 17.)

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“major participant” who acted with reckless disregard, predated
People v. Banks (2015) 61 Cal.4th 788 (Banks),5 the trial court
explained:
“I think we can all agree that Banks requires a multiple-
part analysis as to the, quote unquote, ‘culpability’ of the
nonshooter.
“And I want to make the following observation. In the
hypothetical—I should say in the event that [defendant] had only
been involved in the 211/187 as an aider and abettor, the
argument in my estimation is much more compelling that his
level of culpability would be lesser and this is why.
“Wilkinson, which predated the Ortiz murder, involved the
same set of characters, involved a similar M.O., and most
significantly my estimation Wilkinson was subjected to an
enormously dangerous and scary predicament where he was
threatened with firearms. He was told in no uncertain terms
that his head would be blown off. They racked a round and they
also used bats in assaulting Mr. Wilkinson in attempting to get or
in fact succeeding to get—I think it was $9,000 he had on him for
this elicit marijuana transaction.
“But [defendant] was present during that assault and was
present during that robbery. And why I think that is significant
is this. Because the second part of this analysis requires whether

5 Our opinion in Negrete was filed in 2017; Banks and People
v. Clark (2016) 63 Cal.4th 522, 611 (Clark) were decided in 2015
and 2016, respectively. Defendant concedes this misstep in his
reply brief, noting that Banks and Clark were decided after
defendant’s conviction and sentence.

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or not he acted with reckless disregard, and that is more in line
with what I’ve indicated with [Tison v. Arizona (1987) 481 U.S.
137]. Okay?
“This individual—in my estimation [defendant] had to be
on notice of the level of brutality and violence that the Bratz gang
members whom he arguably set up and orchestrated that initial
robbery, that level of knowledge of their behavior, their level of
violence, that the potentiality for enormous harm—in my
estimation it’s very, very possible Wilkinson would have been
murdered as well, given the fact they had multiple firearms, they
put guns to his head, they told him they would blow his fucking
head off and they assaulted him with the bats. Any one of those
things, the bats, the firearms, could have resulted in Wilkinson’s
death. . . .
“However, that fact pattern in my estimation is very
compelling to determine whether or not [defendant] acted,
number one, as a major participant, because it was quite certain
from his own statement and from statements of others that [he]
was the linchpin and the facilitator for both of these incidents.
“More specifically, on the second incident with Negrete and
[defendant], [defendant] is the one that set it up. He is the one
that disarmed—I should say Ortiz. He is the one that was
perhaps not the mastermind, but the person who got it all set up.
He was the individual, and he did not stay—the evidence was not
that he stayed outside of the garage. The evidence was he did not
stay in the car. He was not a getaway driver as in some of these
circumstances are. He was not a passive bystander to the
incident that occurred inside the garage. He was an active
participant.

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 “And, [defense counsel], my estimation is because he was
present when Wilkinson was assaulted, was robbed and there
was a great deal of brutality involved, that in my estimation
demonstrates his reckless disregard vis-à-vis the second incident.
And that is because if he sees this happen to Mr. Wilkinson, he
knows—in my estimation he would know that the level of
violence or the level of defensiveness that’s possible with now
actual drug dealers . . . .
“[Defendant] was aware of this, and so the potentiality for
harm is in my estimation exponentially greater. That is, you
take guys in there that are perhaps prone to violence themselves,
who arm themselves with firearms themselves, you disarm them,
you put them into this closed environment where there’s baseball
bats and people armed with firearms . . . . [¶] . . . [¶]
“And along the lines of the Banks analysis, step 3, what
awareness did the defendant have of the particular dangers
posed by the nature of the crime, weapons used or past
experience or conduct with the other participants? In my
estimation that militates most certainly to that degree of reckless
disregard.
“Factor number 4 was the defendant present at the scene of
the killing in a position to facilitate or prevent the actual
murder. . . . In my estimation that presence inside the garage,
using a baseball bat, not running away or fleeing when the fight
goes down, he is participating. He is part of this crime and he’s
using a dangerous, deadly weapon himself. Then finally after the
fatal shot is fired, he runs away and then flees for some period of
time out of the country.”
The trial court tentatively concluded that “the D.A. would
in fact be able to prove beyond a reasonable doubt that

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[defendant] acted as a major participant and acted with reckless
disregard for human life in the actual felony murder.” After
hearing further argument from defense counsel, the court
reiterated that “[i]t’s beyond a reasonable doubt.”
DISCUSSION
I. Relevant law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973.)
In order to obtain resentencing relief, the petitioner must
file a facially sufficient section 1170.95 petition and then satisfy
two prima facie tests to demonstrate that he potentially qualifies
for relief, thereby meriting an evidentiary hearing. (§ 1170.95,
subd. (c).)
At the evidentiary hearing, the parties may rely upon
evidence in the record of conviction or new evidence to
demonstrate whether the petitioner is eligible for resentencing.
(§ 1170.95, subd. (d)(3).) The prosecution bears the burden of
proving, “beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3); see also
People v. Lopez (2020) 56 Cal.App.5th 936, 942, review granted
Feb. 10, 2021, S265974; People v. Rodriguez (2020) 58
Cal.App.5th 227 (Rodriguez), review granted, Mar. 10, 2021,
S266652 [reaching same result albeit for a different reason];
People v. Clements (2021) 60 Cal.App.5th 597, 617–618, review
granted, Apr. 28, 2021, S267624; People v. Duchine (2021) 60
Cal.App.5th 798, 813–814; People v. Harris (2021) 60 Cal.App.5th

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939, 952, review granted, Apr. 28, 2021, S267802; and People v.
Hernandez (2021) 60 Cal.App.5th 94, 103; but see People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021,
S265309 [holding that the prosecution need only prove “that the
defendant could still have been convicted of murder under the
new law—in other words, that a reasonable jury could find the
defendant guilty of murder with the requisite mental state for
that degree of murder [under current law]. This is essentially
identical to the standard of substantial evidence, in which the
reviewing court asks ‘“whether, on the entire record, a rational
trier of fact could find the defendant guilty beyond a reasonable
doubt. . . . [¶] . . .” [Citation.]’ [Citation.]”].) Only if the
prosecution cannot meet its burden is the defendant entitled to
vacatur of the murder conviction and resentencing as set forth in
section 1170.95, subdivision (e).
We review for substantial evidence the trial court’s factual
determination under section 1170.95, subdivision (d)(3), that the
prosecution proved beyond a reasonable doubt that the defendant
was ineligible for resentencing. (Rodriguez, supra, 58
Cal.App.5th at p. 238.)
II. The trial court did not err
The trial court properly denied defendant’s petition for
resentencing because at the evidentiary hearing, it determined,
beyond a reasonable doubt, that defendant is guilty of murder
under current law as a major participant in the burglary who
acted with reckless indifference to human life. (§ 189, subd.
(e)(3).) As set forth above, the trial court summarized and
applied the relevant Banks and Clark factors to defendant’s case.
In so doing, it noted that defendant facilitated and participated in
a violent robbery just four months before the robbery/murder at

12
issue. And, regarding the second incident, the trial court detailed
defendant’s unmistakable participation in and facilitation of the
events that led to the murder.
In addition, the trial court expressly relied upon Banks and
Clark in finding that defendant acted with reckless indifference
to human life. Specifically, defendant was present when
Wilkinson was assaulted and robbed, thereby putting him on
notice of the level of violence that could occur at one of these drug
deals at the gang home. And, during the December incident,
defendant expressly disarmed the victims and then put them in a
closed environment where people were waiting with baseball bats
and firearms. (Banks, supra, 61 Cal.4th at p. 803 & fn. 5.)
To the extent defendant characterizes the evidence
differently and asks us to draw a conclusion different than the
one reached by the trial court, his argument fails. It is well-
settled that when considering a challenge to the sufficiency of the
evidence, we do not reweigh the evidence or redraw competing
inferences from competing circumstances. (People v. Nguyen
(2015) 61 Cal.4th 1015, 1055–1056.)

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 DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.
ASHMANN-GERST

We concur:

________________________, J.
CHAVEZ

________________________, J.
HOFFSTADT

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