Filed 1/22/20 P. v. Pineda CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ERNESTO PINEDA,

Defendant and Appellant.

F079005

(Super. Ct. No. MF47422D)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Merced County. Carol K. Ash, Judge.

Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Luis Ernesto Pineda asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

BACKGROUND

“In October 2007, [codefendant Luis Humberto] Vazquez lived at his parents’ home on Sycamore in Delhi. [Defendant] also lived there. Vazquez and [defendant] worked together in construction and occasionally smoked methamphetamine.

“[Defendant] told Vazquez that [Rosa] Avina had taken a pound of ‘weed’ from some men, and [defendant] and Alvaro Reyes were going to confront her. Reyes knew Avina, so he was to pick up Avina and meet Vazquez and [defendant] at a designated place. Before they left, [defendant] told Vazquez to bring duct tape and zip ties. [Defendant] brought a rifle.

“After smoking methamphetamine, Vazquez and [defendant] left the house and drove in a Pontiac to a residence on Clifford in Turlock. They had been to this house in Turlock many times. They parked the car in a shed near the residence and covered the car with sheets. A man called ‘Cheque’ came out of the house. Vazquez retrieved a two-by-four from the shed.

“Reyes drove up in his truck with Avina and the two of them went into the house. [Defendant] and Vazquez were hiding in the back of the shed at the time. After about a minute, [defendant], Vazquez and Cheque went to the door of the house and knocked. When the door was opened, they shoved inside. [Defendant] entered first, followed by Cheque and then Vazquez.

“[Defendant] pointed his rifle at Avina’s back and ordered the three occupants of the house, Reyes, Avina, and an individual nicknamed Mosca, to lie down on the floor. [Defendant] and Cheque tied up Avina; Vazquez tied up Mosca. Avina had zip ties on her legs, her hands were tied behind her back, and she had black duct tape around her head. [Defendant] removed a ring from Avina’s finger and placed it on one of his fingers; he also took methamphetamine from her pocket.

“[Defendant] and Cheque did not speak English, so they told Vazquez to ask Avina where the ‘weed’ was that she had taken. Avina kept repeating, ‘Martha.’ [Defendant] kicked Avina four or five times and then told Vazquez to bring the car up to the house. [Defendant] and Cheque carried Avina to the Pontiac and placed her in the trunk.

“Around 10:00 p.m. or so, Vazquez and [defendant] left the house in Turlock and drove back to Delhi with Avina in the trunk of the car. [Defendant] brought his rifle with him. After the two arrived back home, Reyes pulled up in his truck. [Defendant] and Reyes left, returning about 30 to 45 minutes later with Omar Cebrero and Urbano Ortega.

“[Defendant] told Vazquez to get a bottle or can and gasoline; Vazquez returned with a Coke bottle and the gasoline. [Defendant] filled the Coke bottle with gasoline. [Defendant] got into the Pontiac with Cebrero and Ortega; Avina was still in the trunk. Vazquez and Reyes stayed behind to smoke methamphetamine. About 10 minutes after driving away, [defendant], Cebrero, and Ortega returned. Cebrero and Ortega then left.

“[Defendant], Reyes, Vazquez, and a girl drove to the house in Turlock. Around 3:00 a.m., Vazquez, [defendant] and Reyes left in Reyes’s truck; Reyes dropped the two men off at their house in Delhi. [Defendant] told Vazquez he had poured gasoline on Avina and ‘she kind of jumped when they lit her on fire.’ [Defendant] said they used a lighter to set Avina on fire and left when they heard a car coming. They set her on fire in a boat in the canal and left her there.

“In the morning of October 24, 2007, Sheriff’s Deputy Frank Swiggert was dispatched to a call and arrived at an address on South Avenue. The area is farm country with several orchards. Swiggert found Avina on her knees with her face in a bush. She was burned on her legs and arms and had black duct tape around her head. The black duct tape had a shield logo that read ‘Christy’s’ and ‘ten mil.’ She told Swiggert her name was Rosa; she kept asking if she was still alive. Swiggert saw that Avina’s legs were tied together and there was a zip tie on one ankle. The black duct tape was wrapped around her head to just above her nostrils; it had “melted into her.” Avina had on a lime green sports bra, which was burned. A white foamy substance was coming out of her mouth.

“Avina told Sheriff’s Detective Charles Hale that she had been burned in an abandoned boat and had walked down the road. The boat was located; it was still smoldering and portions of it were on fire. Avina was found about one-half to three-quarters of a mile from the boat. Shoe impressions and barefoot impressions were found in the dirt area around the boat. The barefoot impressions led to where Avina was found. A 20-ounce plastic Coke bottle was found at the scene, along with a pair of blue jeans, a white K-Swiss shoe, and black duct tape.

“After she was found, Avina was transported by medical helicopter to a burn center in Santa Clara. Avina had extensive and severe thermal burns over 60 percent of her body; the most severe burns were on her face and upper body. Something was thrown on her to cause the burn pattern that was present. Avina had inhaled fumes, which caused her larynx and trachea to be burned and charred. She later died from her injuries. The cause of death was described as ‘adult respiratory distress syndrome and multi-system failure due to extensive thermal burns. Her body shut down.’

“On October 25, 2007, the day after Avina was found, Sheriff’s Detective Corey Gibson and another detective went to the residence on Sycamore in Delhi where [defendant] and Vazquez lived. They saw three or four men working on a red Mustang; [defendant] was near the car. [Defendant] was arrested and found to have methamphetamine and marijuana in his possession. The Pontiac was located at another residence; it was registered to Cebrero.

“On October 27, Hale and other deputies executed a search warrant at a house on Clifford in Turlock. Black duct tape with the same markings as the tape found on Avina’s head was located in trash cans behind the house. Zip ties also were found in the trash cans. A search of the residence resulted in a seizure of a rifle found in a closet.

“On November 2, 2007, Gibson assisted with execution of a search warrant at Ortega’s residence on Beatty Avenue in Delhi. A shoe was found in a bedroom; the bedroom contained documents with Ortega’s name. The shoe was sent for analysis to the Department of Justice. Gibson also obtained DNA samples from [defendant], Reyes, Cebrero, Ortega, and Vazquez; those samples also were sent for analysis.

“After [defendant] was arrested and booked into the county jail, his conversations with his wife were recorded. Sheriff’s Detective Alex Barba listened to the recorded telephone conversations. In his first call to his wife, [defendant] told her to call Pedro Vazquez, who lived at the Sycamore address with his son, Luis Vazquez. [Defendant] also told his wife she needed to locate his wallet and a ring he had buried with his feet at the time of his arrest; the ring was near the Mustang. In a subsequent phone call, [defendant]’s wife told him she had found the ring. Barba took the ring from her on November 8.

“On November 20, 2007, Jason Jones was housed in the same jail facility as [defendant]. He overheard [defendant] say something about a woman being burned alive. [Defendant] said they zip tied a woman, threw her in a boat, poured gasoline on her, and burned her.

“Senior Criminalist Sarah Yoshida processed the Pontiac for evidence on November 5, 2007. She found blood stains on the trunk that were Avina’s blood. Yoshida also detected gasoline on clothing that was submitted. In analyzing the shoe prints at the scene of the crime, she found two that were consistent with the single shoe she had been given, which was a right shoe. There were two other shoe impressions that were a mirror image of the right shoe impressions and likely were made by the matching left shoe, which Yoshida did not have.

“Fingerprint expert Richard W. Kinney also examined the Pontiac. He located numerous latent prints on the Pontiac—two belonged to Cebrero and one belonged to Vazquez. He did not recover any prints belonging to [defendant], Reyes, or Ortega from the Pontiac.”

On September 7, 2010, a jury convicted defendant of first degree murder (Pen. Code, § 187; count 1) and kidnapping for ransom or extortion (§ 209, subd. (a); count 2). The jury found true three special circumstances: defendant murdered Avina while committing or attempting to commit kidnapping (§ 190.2, subd. (a)(17)(B)), defendant murdered Avina while committing or attempting to commit mayhem (§ 190.2, subd. (a)(17)(J)), and defendant murdered Avina while committing or attempting to commit torture (§ 190.2, subd. (a)(18)). The jury also found true the allegation that defendant personally used a firearm in the commission of the kidnapping (§ 12022.53, subd. (b)).

The trial court sentenced defendant to life in prison without the possibility of parole on count 1, and life with the possibility of parole on count 2, plus 10 consecutive years for the firearm enhancement. The court stayed the terms on count 2 pursuant to section 654.

This court affirmed the judgment in People v. Valencia, supra, F061266.

On January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended sections 188 and 189 to reduce accomplice liability for felony murder (see discussion infra) and provided a procedure for petitioning for relief (§ 1170.95).

On January 23, 2019, defendant filed a petition for resentencing under section 1170.95, alleging he was convicted of first degree murder under a theory of felony murder or natural and probable consequences, and he could not now be convicted of first degree murder because of the new changes to sections 188 and 189. He claimed he was not the actual killer, and he was either not a major participant or he did not act with reckless indifference to human life.

On February 21, 2019, the trial court denied the petition, stating:

“The record shows [defendant] was prosecuted under multiple homicide theories, including felony murder. Based on the facts recited above, [defendant] could be convicted of first degree murder today, regardless of the changes to sections 188 or 189, because the evidence demonstrates premediated and deliberate murder. Arguendo, if [defendant] could only be convicted under the felony murder theory, he still would not be eligible for relief. [Defendant] was the actual killer. In the alternative, he either, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of the murder in the first degree, or he was a major participant who acted with reckless indifference to human life, as evidenced in the true findings on the special circumstances, as described in subdivision (d) of section 190.2” (Footnote omitted.)

On March 18, 2019, defendant filed a notice of appeal.

DISCUSSION

Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 2) amended sections 188 and 189 to reduce accomplice liability for felony murder where the accomplice did not commit the act that killed the victim. Section 189, subdivision (e), now provides that a participant in the perpetration of a felony listed in subdivision (a)—that is, first degree felony murder for specified felonies, such as kidnapping or mayhem—in which a death occurs is liable for murder only if he (1) was the actual killer, (2) was not the actual killer, but acted with intent to kill in aiding and abetting the actual killer, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (§ 189, subd. (e).)

Senate Bill No. 1437 also added section 1170.95, which provides a procedure by which those already convicted of murder before the 2018 enactment of Senate Bill No. 1437 may seek retroactive relief in a petition to the trial court. (See People v. Martinez (2019) 31 Cal.App.5th 719, 724.) Section 1170.95 allows “[a] person convicted of felony murder or murder under a natural and probable consequences theory” to file a petition with the trial court that sentenced him, to have the murder conviction vacated and to be resentenced when three conditions are met: (1) the charges 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 plea agreement; and (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.” (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing, the prosecutor must file and serve a response, and the petitioner may file and serve a reply. (Id., subd. (c).) If the trial court concludes the petitioner has made a prima facie showing, the court shall issue an order to show cause and shall hold a hearing at which the prosecution shall have the burden of proof. (Id., subd. (d)(1).) The prosecutor and the petitioner “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Id., subd. (d)(3).) “If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” (Id., subd. (d)(2).)

In this case, the trial court properly denied defendant’s petition. Even assuming defendant was convicted of first degree felony murder and was not the actual killer, he nevertheless acted with intent to kill in aiding and abetting the actual killer, or was a major participant in the underlying felony and acted with reckless indifference to human life (§ 189, subd. (e)). He told Vasquez he was the one who poured gasoline on Avina before she was lit on fire, and he told someone in jail that “they” poured gasoline on Avina and burned her. Thus, defendant would not benefit from the new law and could still be convicted of first degree felony murder. Accordingly, he could not make a prima facie showing he was entitled to relief under section 1170.95.

Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The order denying the section 1170.95 petition is affirmed.