Filed 7/1/21 P. v. Pineda CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B309435
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA099581)
v.
ASHLEY PINEDA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Villalobos, Judge. Affirmed.
Cheryl Lutz, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
In 2017, a jury found Ashley Pineda guilty of second degree
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robbery (Pen. Code, § 212.5, subd. (c)). Evidence presented at
trial demonstrated Pineda’s codefendant, Josefina Pedroza, stole
a case of beer from a convenience store, while Pineda waited for
Pedroza outside the store. The store clerk followed Pedroza out of
the store and retrieved the case of beer. As the clerk walked back
to the store, Pineda, who was intoxicated, punched him in the
back, face, and arm, scratched him, and pulled his shirt,
attempting to take the case of beer from him. Pineda and
Pedroza followed the clerk into the store, continuing to strike him
and trying to take the beer. As Pedroza scuffled with the clerk,
Pineda took a bottle of champagne and exited the store. (People
v. Pedroza (Feb. 6, 2020, B286431) [nonpub. opn.], pp. 2-3, 5-7.)2
Pineda admitted she had a prior conviction, a robbery
(§ 211), within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)-(j) & 1170.12, subd. (b)) and the prior serious felony
enhancement (§ 667, subd. (a)(1)). The trial court sentenced her
to nine years in prison: the low term of two years for the robbery
offense, doubled to four years for the prior strike conviction, plus
five years for the prior serious felony enhancement.
Pineda appealed from the judgment of her conviction,
challenging the sufficiency of the evidence supporting the guilty
verdict and asserting other claims of trial error, which we
rejected. She also contended the matter must be remanded to the
trial court in light of Senate Bill No. 1393 (Stats. 2018, ch. 1013,
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Undesignated statutory references are to the Penal Code.
2Pineda was tried with Pedroza, and they both appealed
from the judgment of conviction.
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§§ 1-2), which amended section 1385, effective January 1, 2019
(while her appeal was pending), to give trial courts discretion to
strike prior serious felony enhancements. We affirmed her
robbery conviction and remanded the matter to allow the trial
court an opportunity to exercise discretion it did not have at the
time it sentenced her, and to determine whether to strike the
enhancement imposed under section 667, subdivision (a)(1).
(People v. Pedroza, supra, B286431, pp. 2, 17-20, 24-25.)
Upon remand, the trial exercised its discretion to strike the
five-year prior serious felony enhancement (§ 667, subd. (a)(1)) in
furtherance of justice (§ 1385), commenting that the crime was
“not really an overly sophisticated robbery,” Pineda was an aider
and abettor, and she had done “well in custody” (participating in
programs). The court resentenced Pineda to six years in prison:
the middle term of three years for the robbery offense, doubled to
six years for the prior strike conviction. Pineda objected to the
court’s imposition of the middle term, given the court had
imposed the low term at the initial sentencing hearing. The court
explained that while it could not impose an aggregate sentence
greater than the nine-year total term it had imposed at the initial
sentencing hearing, it could impose a longer term for the offense,
citing People v. Baldwin (2018) 30 Cal.App.5th 648, 657-658 and
People v. Burbine (2003) 106 Cal.App.4th 1250, 1256-1259. The
court set forth the reasons it imposed the middle term, as
opposed to the low term, including that the “offense involved
violence and a threat of great bodily injury,” and the victim “was
outnumbered.”
Pineda filed a timely notice of appeal, and this court
appointed counsel for her. After examination of the record,
counsel filed an opening brief raising no issues and asking this
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court to review the record independently pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende). In her declaration attached
to the brief, counsel explained that because Pineda was no longer
in prison when she was appointed as appellate counsel, and she
did not have an address for Pineda, she was unable to contact
Pineda to discuss the appeal and to inform Pineda that she could
file a supplemental brief. Appellate counsel also stated in her
declaration that she was unable to send the opening appellate
brief and record on appeal to Pineda for the same reason. In her
attempts to locate an address for Pineda, appointed appellate
counsel contacted (1) the attorney at the Alternate Public
Defender’s Office who most recently represented Pineda in the
trial court and (2) the parole office in the region where Pineda
was paroled. Appellate counsel sent letters to Pineda at the
addresses given to her by trial counsel and the parole office, but
the letters were returned.
Our clerk’s office contacted the California Department of
Corrections and Rehabilitation (CDCR) and was informed that
Pineda was paroled on December 7, 2020 (before appellate
counsel was appointed), and CDCR had no forwarding address for
her. On May 11, 2021, we sent a letter to Pineda, care of the
attorney who most recently represented her in the trial court,
and appellate counsel, advising Pineda that within 30 days she
could personally submit any contentions or issues she wanted us
to consider, and directing appellate counsel to send the record
and opening brief to Pineda immediately (to the extent either
counsel could locate Pineda). To date, Pineda has not filed a
supplemental brief.
We have examined the entire record and are satisfied that
Pineda’s appellate counsel has complied with her responsibilities
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and that no arguable issues exist. (People v. Kelly (2006) 40
Cal.4th 106, 109-110; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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