People v. Pineda

Filed 4/11/22; certified for partial publication 5/10/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B304140

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA133930)

ARMANDO PINEDA, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Jeralyn Keller, 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, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
 When defendant and appellant Armando Pineda, Jr.’s
(defendant’s) previous appeal of his conviction for a murder
committed at age 17 was before this court, we conditionally
reversed the judgment and remanded with directions to hold a
new hearing to decide whether the juvenile court would still
transfer defendant to a court of criminal jurisdiction after
changes in law made by the Public Safety and Rehabilitation Act
of 2016 (Proposition 57). (People v. Pineda (2017) 14 Cal.App.5th
469, 483-484 (Pineda I).) That was done, and the juvenile court
found it would still order transfer. Before the criminal judgment
against defendant was reinstated, however, the court of criminal
jurisdiction considered and rejected defendant’s request that the
court exercise discretion, given by another intervening change in
the law, to strike a discharge-of-a-firearm-causing-death
enhancement (Pen. Code,1 § 12022.53, subd. (d)) it previously
imposed. We are now asked to decide whether the trial court
understood the full scope of its discretion and abused that
discretion by declining to strike the enhancement. We also
consider whether defendant is entitled to retroactive application
of yet another change in law recently made by Assembly Bill No.
624 (2021-2022 Reg. Sess.) (AB 624), which authorizes a
defendant to appeal—not just pursue appellate writ relief—from
a juvenile court’s Proposition 57 transfer decision.

I
Pineda I, supra, 14 Cal.App.5th 469 summarized the
evidence concerning defendant’s murder of the victim, Rogelio

1
Undesignated statutory references that follow are to the
Penal Code.

2
Islas (Rogelio), and the initial court proceedings. We reproduce
that summary and then describe what most recently happened in
the trial court.
“On several occasions during the two years that preceded
Rogelio’s killing, members of the Pineda family (i.e., defendant’s
family) and the Islas family (i.e., Rogelio’s family) argued and, at
times, engaged in fisticuffs. Both families lived on the same
street in Compton (one house apart), and naturally, each family
believed it was in the right and the other family was responsible
for the ongoing trouble.
“On the day defendant shot Rogelio in June 2014, trouble
began around 2:30 in the afternoon. Defendant, his girlfriend
Katherine Bautista (Bautista), and his sister Connie had plans to
visit another of defendant’s sisters. [Fn. omitted.] They were
preparing to leave for the visit in an SUV parked between the
Pineda and Islas family homes. Defendant’s father, Armando
Pineda, Senior (Senior), had arrived home at about the same
time, and he drove past Rogelio standing outside his home
without incident.
“According to Connie and others in the Pineda family,
defendant was in the process of putting his child into a car seat in
the SUV when Rogelio insulted defendant and both men then
began arguing. Connie and Bautista attempted to convince
defendant to stop arguing and get in the SUV—physically
holding defendant back at one point. While defendant and
Rogelio were arguing, Senior came outside.
“The only eyewitnesses to what happened next were
defendant and members of his family; they would later claim
Senior pulled a gun on Rogelio and shot him multiple times. But

3
there were several witnesses not associated with either family
who heard what happened.
“Oscar Ibarra (Ibarra) lived in the house between the
Pineda and Islas homes, and he heard a woman say in a scared
voice, “No, Junior. Don’t do it,” followed by multiple gunshots
two or three seconds later. (Because defendant and his father
shared the same name, defendant was often called ‘Junior.’
Defendant’s mother also referred to defendant as ‘Papa.’) Maria
Soto, an off-duty police officer who was visiting the home next to
the Islas family’s house, heard a woman scream ‘no, poppy, no’ in
Spanish and then the sound of shots fired.
“Another neighbor who lived two houses down from the
Islas family home, Gustavo Silva (Silva), heard the gunshots and
looked out his window. Seconds later, Silva heard Connie
frantically say, ‘No, Junior. No. You don’t do that. Why did you
do that?’ Silva then saw someone (he could not see who) pushed
into a waiting SUV, which then ‘burned rubber’ driving away
from the scene. In the meantime, the other neighbor, Ibarra, had
seen defendant run toward the SUV. Although Ibarra could not
see defendant enter the vehicle, defendant was no longer in the
area after the SUV drove off at high speed.
“When the SUV raced away, defendant, Senior, and
Bautista (and defendant’s infant daughter) were inside; Connie
was left behind. Silva saw Connie get on her cell phone and
heard her say: ‘Mom, he killed him. He killed him. What do I
do?’; and then, ‘Junior. Junior. Junior. Junior killed him. What
do I do?’ [Fn. omitted.] This, however, was not Connie’s own
account of the phone call. She said she called her mother a
minute or two after the shooting and said, ‘Mom, my dad just
shot the neighbor.’ Connie’s mother remembered the phone call

4
in the same way, i.e., with Connie identifying her father, not
defendant, as the killer.
“Connie also sent text messages after the shooting,
including a 3:02 p.m. message to her then-boyfriend. . . . Connie’s
boyfriend called her back after receiving the text message and
she told him ‘her dad just shot the neighbor.’ [Fn. omitted.]
“Law enforcement investigation following the shooting
determined Rogelio had been shot five times, including two shots
that were fatal (one to the back of the head and another to the
lower back). Initially, Connie, Bautista, and defendant’s mother
did not tell the police that Senior was the culprit in Rogelio’s
murder. They advised the police that Senior was the shooter only
later, during interviews approximately seven months after the
killing.
[¶] . . . [¶]
“At the time of Rogelio’s murder, California law allowed
prosecutors to file murder charges against a defendant over 16
years old directly in a court of criminal jurisdiction, meaning a
court assigned responsibility for adjudicating charges against
adult offenders rather than a juvenile court. (Welf. & Inst. Code,
former § 707, subds. (b)(1), (d)(1), added by Stats. 1975, ch. 1266,
§ 4, p. 3325, as amended by Prop. 21, § 26, approved by voters,
Primary Elec. (Mar. 7, 2000).) Using this ‘direct file’ procedure,
the Los Angeles County District Attorney in October 2014
charged defendant with Rogelio’s murder in a court of criminal
jurisdiction.” (Pineda I, supra, 14 Cal.App.5th at 472-474.)
After trial, a jury found defendant guilty of second degree
murder. (Pineda I, supra, 14 Cal.App.5th at 477.) The jury also
found true personal use of a firearm enhancements (§ 12022.53,
subd. (b)-(d)) alleged in connection with the murder charge.

5
(Ibid.) The trial court sentenced defendant to an aggregate term
of 40 years to life in prison, consisting of 15 years to life for the
second degree murder conviction and a consecutive 25 years to
life pursuant to the section 12022.53, subdivision (d)
enhancement for personally discharging a firearm causing
Rogelio’s death. (Ibid.)
On appeal, this court conditionally reversed the judgment.
(Pineda I, supra, 14 Cal.App.5th at 483.) We held a provision of
Proposition 57 that eliminated prosecutors’ ability to directly file
charges against certain juvenile defendants in a court of criminal
jurisdiction—returning instead to a juvenile court “fitness
hearing” procedure that previously governed—was an
ameliorative change that applied retroactively to him.2 (Id. at
478, 480; see also People v. Esquivel (2021) 11 Cal.5th 671, 675
[summarizing the retroactivity holding in In re Estrada (1965) 63
Cal.2d 740 (Estrada): “(i) in the absence of a contrary indication
of legislative intent, (ii) legislation that ameliorates punishment
(iii) applies to all cases that are not yet final as of the legislation’s
effective date”] (Esquivel).) Pineda I conditionally reversed
defendant’s conviction and remanded with directions to hold a
new fitness hearing for defendant (if the People moved for such a
hearing) and to thereafter reinstate the criminal judgment if the
juvenile court determined it would still transfer defendant to a
court of criminal jurisdiction under prevailing law. (Pineda,
supra, 14 Cal.App.5th at 483-484.)
On remand, the juvenile court determined defendant was
still an appropriate subject of transfer to a court of criminal

2
Our Supreme Court later agreed. (People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 303, 304, 311 (Lara).)

6
jurisdiction. By that time, Senate Bill No. 620 (2017-2018 Reg.
Sess.) (SB 620) had taken effect and given trial courts discretion,
pursuant to section 1385, to strike a section 12022.53 firearm
enhancement when in the interest of justice to do so. (§ 12022.53,
subd. (h); Stats. 2017, ch. 682, § 2.)
When back before the criminal trial court, and with the
court’s permission,3 defendant filed a “sentencing memorandum”
in September 2019 urging the trial court to rely on the discretion
conferred by SB 620 to strike the previously imposed section
12022.53, subdivision (d) firearm enhancement. The defense’s
memorandum argued the court should strike the enhancement in
light of defendant’s “youth, his history of trauma, the significant
progress he has made in prison, and the length of the prison
sentenced imposed” by the trial court. Specifically, the
memorandum pointed to defendant’s “violent and unhealthy”
childhood; a psychologist’s opinion that defendant suffered from
“Other Specified Trauma – or Stressor-Related Disorder”; and
defendant’s prison record, which did not include any violent

3
The trial court stated: “[T]he court also is aware, since I’m
getting a lot of these cases, that there has been a change in the
law with regard to the court’s discretion on imposing time
regarding the gun allegation, and a lot of these cases have been
sent back to the court . . . for the court to recognize it has the
discretion to not impose the additional time for the gun
allegation, and then the court would either impose it or not
impose it and that’s where we are. [¶] That, technically isn’t in
front of me—not even ‘technically’; it is not in front of me.
However, I kind of anticipate something like that coming down
the road. So since [defendant] is already here, I’d like to make a
record of that now, as opposed to a year or two down the road.”

7
incidents and did include participation in rehabilitative
programming (including a high school equivalency certificate).
At a hearing held by the trial court where defendant was
present and represented by counsel, the trial court expressly
“recognize[d] that it ha[d] the discretion to not impose the term of
25-years-to-life for the gun allegation that was found true . . . .”
The court ruled it would decline to exercise that discretion,
however. Reflecting on its notes of the trial testimony, the court
explained defendant’s violence was not a “one-time thing” from a
“sweet kid that happened to do something totally out of
character,” but instead part of a history of violent, angry
confrontations. The court acknowledged defendant was a
“youthful offender” (17, though within weeks of his 18th
birthday) at the time of the murder but balanced that against the
“particularly egregious, violent crime.” The court further found
defendant lied during his trial testimony, in which he identified
Senior as the murderer. The court concluded: “So
while . . . defendant is young, he is not as unsophisticated as
perhaps some of these reports might want to paint him as. And
while I commend that he is doing things in state prison that
perhaps he didn’t take advantage of doing while he was out, he
certainly has more incentive to do that. [¶] The court, again, has
looked at all of these mitigating factors that you are presenting;
however, when looking at this case, what happened to this victim,
how the defendant chose to act on this day, how he chose to act
afterwards, the court is not going to exercise its discretion to
strike the 25-to-life [enhancement].”

8
 II
Defendant’s argument that the court erred in considering
his request for SB 620 relief is unpersuasive. Nothing in the
record warrants a departure from the customary presumption
that the trial court in this case was aware of and followed
applicable law; indeed, the trial court’s comments on the record
indicate it was well familiar with the discretion recently
conferred by law and invited defendant to argue why it should
exercise that discretion. Nor does the record establish, when
declining to strike defendant’s 25-years-to-life firearm
enhancement, that the court abused the discretion it was aware
it had. The court was entitled to conclude the facts and
circumstances of the murder and defendant’s history and
characteristics outweighed mitigating information presented
about defendant’s childhood and his efforts at rehabilitation in
prison. Finally, as we will explain, defendant is not entitled to
retroactively benefit from the new appeal provision enacted as
part of AB 624 because it is not an ameliorative measure exempt
from the customary presumption that new legislative enactments
apply only prospectively.

A
The several subdivisions of section 12022.53 provide for
sentencing enhancements of varying lengths for specified crimes
involving a firearm. Subdivision (b) provides for a 10-year
enhancement for one who “personally uses a firearm” in
commission of the offense; subdivision (c) provides for a 20-year
enhancement for one who “personally and intentionally
discharges a firearm”; and subdivision (d) provides for an
enhancement of 25 years to life for one who “personally and

9
intentionally discharges a firearm and proximately causes great
bodily injury . . . or death . . . .” (§ 12022.53, subds. (b)-(d).) SB
620, which took effect on January 1, 2018, amended section
12022.53 to permit the trial court to strike or dismiss, in the
interest of justice and pursuant to section 1385, an enhancement
imposed pursuant to the provisions of that section. (§ 12022.53,
subd. (h).)
Defendant suggests the trial court did not understand the
jury found true three section 12022.53 enhancements, i.e., true
findings under section 12022.53, subdivisions (b) and (c) in
addition to the 25-to-life enhancement under section 12022.53,
subdivision (d). The record does not bear this out. The trial
court’s on-the-record comments indicate it was quite familiar
with what happened at trial and the court (like the defense’s
“sentencing memorandum” itself) was appropriately focused on
whether to strike the section 12022.53, subdivision (d)
enhancement because that was the only enhancement that
affected defendant’s sentence—the subdivision (b) and (c)
enhancements that provide for lesser punishment were stayed at
sentencing. We accordingly proceed on the usual understanding
that the trial court was aware of applicable law and understood
the full scope of its discretionary choices. (See, e.g., People v.
Morrison (2019) 34 Cal.App.5th 217, 225 [“[T]he usual
presumption that a sentencing court correctly applied the law
will apply and will ordinarily prevent remand where the record is
silent as to the scope of a court’s discretion”]; see also People v.
Pearson (2019) 38 Cal.App.5th 112, 117 [“‘[U]nless the record
affirmatively reflects otherwise,’ the trial court is deemed to have
considered the factors enumerated in the California Rules of
Court”] (Pearson).)

10
 On the merits of the trial court’s discretionary
determination, the court expressly considered all of the factors in
mitigation identified by defendant and concluded the 25-to-life
enhancement was warranted.4 We review that determination for
abuse of discretion, taking into account the legal principles and
policies behind the law that added section 12022.53 to the Penal
Code (see, e.g., People v. Garcia (2002) 28 Cal.4th 1166, 1172
[legislative intention to protect the citizenry and deter violent
crime]) and SB 620’s purpose of mitigating overly harsh results
that could otherwise obtain from mandatory, inflexible imposition
of section 12022.53. (People v. Carmony (2004) 33 Cal.4th 367,
377; People v. Williams (1998) 17 Cal.4th 148, 161; Pearson,
supra, 38 Cal.App.5th at 116.)
We hold there was no abuse of discretion. The
circumstances of the murder were indeed callous, the court was
entitled to conclude from defendant’s history that the murder was
not entirely aberrant conduct, and the court appropriately
considered defendant’s disregard for the judicial process as shown
by what the court (and jury) saw as his untruthful trial
testimony. The trial court understood defendant was just shy of
his 18th birthday at the time of the murder and had exhibited
good behavior thus far in prison, but the court was within its

4
Defendant argues the trial court “failed to consider”
defendant’s in-prison conduct. This is belied by the transcript of
the pertinent hearing, which indicates the court read and
considered the “pretty substantial sentencing memorandum” the
defense filed and was aware of defendant’s efforts at
rehabilitation in prison—even commending him for those efforts
while finding they were insufficient to justify striking the section
12022.53 enhancement.

11
discretionary purview to conclude these and the other facts cited
as mitigation by the defense did not warrant disturbing the
section 12022.53 enhancement.

B
The rule in California is well-settled: new legislation is
generally presumed to apply only prospectively. (See, e.g., In re
Friend (2021) 11 Cal.5th 720, 742; Lara, supra, 4 Cal.5th at 307.)
There is also an established exception, first announced in
Estrada, supra, 63 Cal.2d 740: legislation that is silent on
whether it should apply retroactively will be given retroactive
effect if it ameliorates punishment. (Id. at 745 [“When the
Legislature amends a statute so as to lessen the punishment it
has obviously expressly determined that its former penalty was
too severe and that a lighter punishment is proper as punishment
for the commission of the prohibited act. It is an inevitable
inference that the Legislature must have intended that the new
statute imposing the new lighter penalty now deemed to be
sufficient should apply to every case to which it constitutionally
could apply”]; see also People v. Conley (2016) 63 Cal.4th 646, 657
[“The Estrada rule rests on an inference that, in the absence of
contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that
are final and sentences that are not”].)
Prior to AB 624, which took effect on January 1 of this year,
a defendant certified by the juvenile court as fit to be tried in a
court of criminal jurisdiction could challenge that determination
in the Court of Appeal through a petition for writ relief. (See
generally People v. Superior Court (Rodrigo O.) (1994) 22

12
Cal.App.4th 1297, 1302.) Defendant never petitioned for such
relief after the juvenile court’s fitness determination ordered by
this court in Pineda I.
Now, after enactment of AB 624, which is codified at
Welfare and Institutions Code section 801, a defendant is entitled
to immediately appeal from a juvenile court fitness
determination. (Welf. & Inst. Code, § 801 [“An order transferring
a minor from the juvenile court to a court of criminal jurisdiction
shall be subject to immediate appellate review if a notice of
appeal is filed within 30 days of the order transferring the minor
to a court of criminal jurisdiction. An order transferring the
minor from the juvenile court to a court of criminal jurisdiction
may not be heard on appeal from the judgment of conviction”].)
Defendant argues Welfare and Institutions Code section 801
should apply retroactively to him such that he is now authorized
to appeal from the juvenile court determination made several
years ago.
We hold the statute does not qualify for the Estrada
exception to the rule requiring prospective application of new
legislation. Even putting aside the question of whether Welfare
and Institutions Code section 801 can be understood to concern
punishment (Esquivel, supra, 11 Cal.5th at 675 [the Estrada
exception applies to “legislation that ameliorates punishment”]),
and even putting aside whether Welfare and Institutions Code
section 801’s expressed preference for expedited appellate review
is an indication that it is not meant to apply retroactively in a
case like this, we are of the view that the change in law made by
AB 624 is not ameliorative. As a plurality of our Supreme Court
explained in Powers v. City of Richmond (1995) 10 Cal.4th 85, the
notion that appellate review by extraordinary writ petition is

13
inherently less effective than a remedy by direct appeal is
incorrect.5 (Id. at 113-114 (plur. opn. of Kennard, J.).) We agree
and hold AB 624 does not apply retroactively to defendant
because the new procedural mechanism the Legislature has
provided for challenging a fitness determination—an appeal—is
no more favorable for defendant than the mechanism that was
available before AB 624 that he did not pursue—review by writ
petition.

DISPOSITION
The trial court’s order is affirmed.

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.

5
This same point disposes of defendant’s contention that
declining to apply Welfare and Institutions Code section 801
retroactively to him violates his right to due process of law.

14
Filed 5/10/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B304140

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA133930)

ARMANDO PINEDA, JR., ORDER CERTIFYING
OPINION FOR
Defendant and Appellant. PARTIAL
PUBLICATION

Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, it is ordered that all parts of the opinion filed April 11,
2022—except the first paragraph following heading “II” on page 9
and the entire subsection “A” that follows immediately after that
paragraph on pages 9 to 12—are certified for publication.
There is no change in judgment.

___________________________________________________________
BAKER, Acting P. J. MOOR, J. KIM, J.