Filed 7/24/24 P. v. Cardenas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

LUIS ALBERTO CARDENAS,

 Defendant and Appellant.

 G062354

 (Super. Ct. No. 03CF1076)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, 

Kazuharu Makino, Judge. Affirmed. Request for judicial notice denied.

Benjamin Kington, under appointment by the Court of Appeal, 

for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *
2

In 1995, Benjamin Gallardo was shot and killed by a group of 

rival gang members. In 2004, a jury found Luis Alberto Cardenas guilty of 

murder and found true a gang allegation. In 2022, Cardenas filed a petition 

seeking to vacate his murder conviction under former Penal Code section 

1170.95 (now Pen. Code, § 1172.6).

1

 In 2023, after presiding over an 

evidentiary hearing, the trial court denied the section 1172.6 petition.

In this appeal, appointed appellate counsel filed a brief raising no 

arguable issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 230 

(Delgadillo); People v. Wende (1979) 25 Cal.3d 436 (Wende).) Cardenas later 

filed a supplemental brief on his own behalf.

In the interests of justice, this court has independently reviewed 

the record and found no arguable issues. (See Delgadillo, supra, 14 Cal.5th 

at p. 230 [“if the appellate court wishes, it may also exercise its discretion to 

conduct its own independent review of the record in the interest of justice”].)

We will briefly address the legal issues Cardenas raises in his 

supplemental brief. We affirm the order of the trial court.

I

FACTS AND PROCEDURAL BACKGROUND

On October 19, 1995, Juan L. (Juan) lived in his home on Grant 

Street in Santa Ana. Juan was 20 years old, and an associate member of a

gang aligned with the Grant Street gang. At this time, the Grant Street gang

had an ongoing rivalry with the Eastside gang, which frequently involved the 

use of firearms to shoot at each other. In fact, Juan’s house had been shot up 

1

Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 

1172.6, with no change in text (Stats. 2022, ch. 58, § 10); all further

undesignated statutory references are to the Penal Code.
3

several times. Cardenas, an Eastside gang member, lived about a block away 

in Eastside territory.

At about 7:00 p.m., Juan was outside of his home with a fellow 

gang associate, George S., and two females. A group of three to five young 

males were seen walking in the street corner, about 140 feet away from the 

home. The young men were wearing dark, baggy clothing and carrying guns. 

The guns were pointed down, and the young men were walking together very 

slowly. A witness described the group’s behavior as “unusual -- it’s kind of 

like, I don’t know if you have cats. But usually if a cat is trying to hunt a 

bird, they pose a little bit. It was kind of like they were walking like that.” 

Juan saw the young men at the corner. He was concerned that the young 

men were enemies there to shoot at him, and Juan “proceeded to tell 

everybody, let’s go [to] the backyard.”

A pickup truck with two men inside drove up to the corner where 

the other men were standing. Numerous shots were fired from the truck and 

from the group at the corner. Juan was hit on his left side and fell to the 

ground. He said, “I’ve been shot.” Gallardo came out of the house. He was a 

Grant Street gang member who had recently been acquitted of killing an 

Eastside gang member. Gallardo was shot in the head and died. A witness 

said she heard someone from the group say after the shooting, “We got them.”

The truck sped off and a neighbor who had known Cardenas since 

he was a child saw Cardenas and two other males running from the area of 

the shooting. The neighbor saw Cardenas lift up his shirt and put a chrome, 

semi-automatic pistol in his waistband. The neighbor saw the group run to 

Cardenas’ home and quickly emerge after changing clothes. One of the 

females who was outside of Juan’s home at the time of the shooting, later 
4

identified Cardenas as one of the shooters from a photographic lineup.

Court Proceedings

In 2003, about eight years after the shooting, the prosecution 

filed an information charging Cardenas with murder. The information 

alleged Cardenas personally used a weapon, and the crime was committed for 

the benefit of the Eastside criminal street gang.

In 2004, the matter went to trial. The neighbor who identified 

Cardenas to the police testified at the trial, but she denied having previously 

identified Cardenas. The court instructed the jury on a theory of direct

aiding and abetting, as well as a natural and probable consequences theory. 

The jury convicted Cardenas of murder and found true the gang allegation 

but found the firearm allegation not true. The court imposed a sentence of 25 

years to life, plus two years for the gang enhancement. On appeal, this court 

struck the two-year term for the gang enhancement, but otherwise affirmed 

the conviction and sentence. (See People v. Cardenas (June 28, 2005, 

G034110) [nonpub. opn.].)

In 2022, Cardenas filed a section 1172.6 petition. The 

prosecution conceded Cardenas made the requisite “prima facie showing and 

an order to show cause should be issued.” Prior to an evidentiary hearing, 

Cardenas was appointed counsel. At the hearing, Cardenas called a former 

gang member as an expert witness. When asked how gangs handle guns 

after a shooting, he said, “Usually the person who actually does the shooting 

will hand the gun off to someone who had not shot so that the person who did 

the actual shooting isn’t caught with a weapon.”

At the conclusion of the hearing, the trial court found that 
5

evidence “showed the defendant is a part of this group that went to this 

location.” The court said this was a planned “shooting of a rival gang.”

The trial court found Cardenas “being there with his gang 

members, it’s beneficial to the other participants in the shooting because he’s 

basically another set of eyes.” The court said, “And maybe he would be there 

also to take the gun after the shooting is done. [¶] But this is clearly a joint 

venture planned by all of them together. They are jointly participating. And 

they jointly leave. They change their appearance afterwards. And they do so 

together.” The court noted, “Cardenas’s participation, even though the jury 

could not find beyond a reasonable doubt that he used the gun, his 

participation is no different in terms of his intent and what he and the other 

two planned to do.”

The trial court said, “So the petition is denied. The conviction 

will stand as it was previously . . . determined by the jury. [¶] And, you 

know, just as a side note, I think it would have been perfectly appropriate. I 

agree with [defense counsel’s] view that a 20-year sentence would have been

more than sufficient for what happened in this case. But he got convicted on 

a charge where the requirement by law is he’s sentenced to 25 years to life.”

After the hearing, Cardenas’s trial counsel filed a notice of 

appeal. Appointed appellate counsel filed an opening brief consistent with 

the procedures outlined in Delgadillo, supra, 14 Cal.5th 216, and Wende, 

supra, 25 Cal.3d 436.

2

 Appellate counsel noted two issues counsel had 

2

Cardenas filed a motion asking this court to take judicial notice of the 

reporter’s and clerk’s transcripts from the original appeal (People v. 

Cardenas, supra, G034110). But those 2004 trial records were lodged in the 

trial court and are already part of the record on appeal. Thus, the request for 

judicial notice is denied.
6

considered, but did not argue within the brief:

“1. The superior court ruled that the evidence in the trial

transcripts proved beyond a reasonable doubt that Cardenas was guilty of 

murder under the current versions of sections 188 and 189. [Citation.] Was

this ruling supported by substantial evidence? . . .

“2. After Cardenas’s original trial, the California Supreme Court 

decided People v. Sanchez (2016) 63 Cal.4th 665, which held that when an 

expert relates case-specific hearsay and treats those statements as true to 

support the expert’s opinion, those statements are hearsay. (Id. at p. 684.) 

Cardenas objected to several portions of the gang expert’s testimony as

hearsay, and the trial court overruled some of those objections. [Citations.] 

Were these rulings correct, and if not, was the error prejudicial?”

Cardenas later filed a supplemental brief on his own behalf 

raising several related issues.

II

DISCUSSION

When a defendant’s appointed appellate counsel identifies no 

arguable issues on appeal, an appellate court may independently review the 

record for arguable issues. (Delgadillo, supra, 14 Cal.5th at p. 230; Wende, 

supra, 25 Cal.3d at pp. 441-442.)

Generally, “an arguable issue on appeal consists of two elements. 

First, the issue must be one which, in counsel’s professional opinion, is 

meritorious. That is not to say that the contention must necessarily achieve 

success. Rather, it must have a reasonable potential for success. Second, if 

successful, the issue must be such that, if resolved favorably to the appellant, 
7

the result will either be a reversal or a modification of the judgment.” (People 

v. Johnson (1981) 123 Cal.App.3d 106, 109.)

If a defendant files his own supplemental brief, the “opinion must 

reflect the contentions and the reasons that they fail.” (People v. Kelly (2006) 

40 Cal.4th 106, 120.) However, a “decision does not require an extended 

discussion of legal principles. [Citation.] Moreover, a recitation of each of the 

defendant’s assertions will not be necessary in all cases; the purposes of the 

constitutional requirement [for a written decision] may in some 

circumstances be satisfied by a summary description of the contentions made 

and the reasons they fail.” (Id. at p. 121.)

Here, we have reviewed the record on appeal. We agree with 

counsel’s analysis that there are no “arguable issues,” including the two 

issues identified and rejected by counsel. That is, we find substantial 

evidence to support the trial court’s ruling, and we do not find that the trial 

court abused its discretion in its hearsay rulings concerning gang expert 

testimony. (See People v. Sanchez, supra, 63 Cal.4th at p. 684.) Thus, we 

affirm the trial court’s denial of Cardenas’s section 1172.6 petition.

Cardenas does not appear to dispute the trial court’s conclusion 

that he was not entitled to resentencing relief under section 1172.6. Instead, 

Cardenas makes a few related claims that we will briefly address.

Cardenas argues that this court should stay the proceeding so 

that he can file various claims of alleged racial discrimination at his trial 

under the California Racial Justice Act (CRJA). (§ 745.) For instance, 

Cardenas contends that a witness’s trial testimony comparing his actions 

before the shooting to the actions of a cat hunting a bird established racial 

prejudice. However, we are not going to analyze these alleged issues because
8

they are not cognizable (reviewable) claims in an appeal from an order 

denying a section 1172.6 petition. (See, e.g., People v. Strong (2022) 13 

Cal.5th 698, 714–715 [recognizing that a defendant may pursue other 

avenues of relief independent of a section 1172.6 petition].)

Cardenas also argues that he is entitled to relief due to a recent 

change to the law concerning the trying of a gang enhancement. (See 

§ 186.22.) But again, we are not going to analyze this issue because it is not 

cognizable in an appeal from an order denying a section 1172.6 petition. 

(See, e.g., People v. Burgos (2024) 16 Cal.5th 1 [amendment to section 186.22 

allowing the defense to request a bifurcated trial on a gang enhancement did 

not apply retroactively].)

Cardenas also argues that based on the trial court’s comments 

regarding the length of his prison sentence (25 years to life), and the fact that 

he was 17 years old at the time the murder was committed, that this court 

should remand the matter for resentencing. But once again, Cardenas’s 

argument does not challenge the legal basis of the trial court’s denial of his 

section 1172.6 petition, so it is beyond the scope of our review.3

Finally, Cardenas argues: “In the appellant’s opening brief, 

appointed counsel attempts to apparently abandon appellant during these 

proceedings.” We disagree.

In Wende, the Supreme Court “‘approved a modified procedure to 

ensure an indigent criminal defendant’s right to effective assistance of 

counsel.’” (Delgadillo, supra, 14 Cal.5th at p. 225, italics added.) “As a 

3

“A person who was convicted of a controlling offense that was committed when the 

person was 25 years of age or younger and for which the sentence is a life term of 25 

years to life shall be eligible for release on parole at a youth offender parole hearing 

during the person’s 25th year of incarceration.” (§ 3051, subd. (b)(3).)
9

general matter, where appointed appellate counsel is unable to find viable 

issues to raise on appeal, Fourteenth Amendment principles of due process 

and equal protection require reviewing courts to independently examine the 

record for any arguable issue on appeal from a defendant’s ‘first appeal as a 

matter of right.’” (People v. Vera (2023) 97 Cal.App.5th Supp. 10, 21, citing 

Anders v. California (1967) 386 U.S. 738, 743–745 (Anders); Wende, supra, 25 

Cal.3d at pp. 441–442.) “Specifically, Wende provides at least two tiers of 

review and ‘ensures that a trained legal eye has searched the record for 

arguable issues and assists the reviewing court in its own evaluation of the 

case.’” (Delgadillo, at p. 226.)

“However, the procedures set out in Anders and Wende do not 

apply to an appeal from the denial of postconviction relief, even if the 

defendant has a state-created right to the appointment of counsel for that 

appeal.” (Delgadillo, supra, 14 Cal.5th at p. 226.)

Here, in the interests of justice, we have conducted an additional 

review of the record, and the issues specifically identified by appointed 

counsel, and we have similarly identified no “arguable issue on appeal.” (See 

People v. Johnson, supra, 123 Cal.App.3d at p. 109.)

In sum, Cardenas has not challenged the trial court’s ruling 

regarding the section 1172.6 petition in his supplemental brief. Thus, we 

affirm the order of the court denying the section 1172.6 petition.
10

III

DISPOSITION

The trial court’s order denying Cardenas’s section 1172.6 petition 

is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

MOTOIKE, J.