Filed 11/14/23 P. v. Pedroza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

CESAR ARIEL PEDROZA,

 Defendant and Appellant.

 G062336

 (Super. Ct. No. 08HF1486)

 O P I N I O N

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

Clapp, Judge. Affirmed.

Allen G. Weinberg, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *
2

In 2013, Cesar Ariel Pedroza was convicted of attempted murder, 

conspiracy, and street terrorism and was ultimately sentenced to an aggregate term of 25 

years in state prison.

In 2022, Pedroza filed a petition pursuant to former Penal Code section 

1170.95 (now § 1172.6) 1seeking resentencing on his murder conviction. The trial court 

denied the petition.

Pedroza filed a notice of appeal. Appointed appellate counsel filed an 

opening brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 

(Wende).) In the interests of justice, this court has reviewed the record and found no 

arguable issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 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”].) Thus, we affirm the order of the trial court.

I

FACTUAL AND PROCEDURAL BACKGROUND

We draw the facts from our prior opinion. “[O]n July 28, 2008, defendant 

was 17 years old. Defendant, who was a Varrio Little Town gang member, went to a 

retail store with fellow gang members Salvador Burciaga, Oscar Ramos, and Nestor 

Lopez. They purchased several items, including a distinctive hat. The presence of all 

four was recorded on store video.

“After they left, all four got into a car, which, according to a statement later 

given to police by Ramos, was driven by defendant. They stopped at Burciaga’s house. 

Burciaga went inside and came back out with a shotgun. Thereafter, they went to a 

location in Costa Mesa.

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). Subsequent statutory references are to 

the Penal Code.
3

“Several people were outside, including 15-year-old Angelic P. A witness 

reported seeing a man with a sawed-off shotgun running toward him, asking ‘where you 

guys from?’ Angelic P. was talking to a friend when she heard people screaming and 

running, and when she looked behind her there was someone running toward her with a 

shotgun, his face covered in a hoodie and wearing a hat. She tried to run but she tripped 

and fell, and then the man, later identified as Burciaga, shot her.

“Angelic P. suffered from numerous injuries, including a permanent 

collapsed lung and a shotgun pellet lodged in her heart. Numerous other pellets damaged 

other organs, including her colon, liver and spleen. She was hospitalized for two months, 

and when she went home she continued to have an open stomach wound. She was 

scarred from her chest to her pelvis.

“The police found a hat at the scene, which was recovered and traced to the 

hat purchased at the retail store by defendant and his companions. Approximately a week 

later, the police stopped a car Burciaga was driving. Defendant was also in the car. A 

symbol of Varrio Little Town was etched in the hood of the car.

“Defendant was arrested and read his rights. During an interview with 

police, defendant admitted he was present but claimed he did not participate in the 

shooting. He said he was in the backseat with Lopez and Burciaga was in the front 

passenger seat.” (People v. Pedroza (Nov. 8, 2016, G049089) [nonpub. opn.], fn. 

omitted.)

In March 2013, Pedroza was convicted of premeditated and deliberate 

attempted murder (§§ 664, subd. (a), 187, subd. (a)); street terrorism (§ 186.22, subd. 

(a)); and conspiracy to commit murder (§ 182, subd. (a)(1)). Numerous enhancements 

were also found true, including the allegation that a gang member vicariously discharged 

a firearm, causing great bodily injury (§§ 186.22, subd. (b)(1), 12022.53, subds. (d), 

(e)(1)). (People v. Pedroza, supra, G049089.) This court remanded for resentencing 

pursuant to People v. Franklin (2016) 63 Cal.4th 261, because Pedroza was 17 years old 
4

at the time the crimes were committed. We affirmed the judgment in all other respects. 

(People v. Pedroza, supra, G049089.)

On remand, the court sentenced Pedroza to 25 years in state prison for 

attempted murder, enhanced by section 12022.53, subdivision (c).

2

The remaining counts 

were stayed, stricken for sentencing purposes, or sentenced concurrently.

On July 13, 2022, Pedroza filed a petition pursuant to former section 

1170.95. His petition stated that he could not be convicted of murder or attempted 

murder under current law and requested resentencing. The court appointed counsel. The 

matter was briefed by Pedroza’s counsel and the district attorney.

On February 17, 2023, the court denied the petition at the prima facie stage. 

The court determined that based on “the record of conviction, including the jury 

instructions and verdicts, shows that the petitioner is ineligible for relief as a matter of 

law and thus fails to make a prima facie showing for relief. The jury instructions given to 

the jury properly instructed the jury on attempted murder, aiding and abetting, and 

conspiracy to commit murder. The jury instructions did not include any instructions on 

the natural and probable consequences doctrine, felony murder, or any other theory where 

malice could be imputed. Therefore, in finding the petitioner guilty of attempted murder, 

the record of conviction shows that the jury necessarily found that the petitioner acted 

with intent to kill. As such, the petitioner could clearly be convicted of attempted murder 

under current law.”

2

The court sentenced Pedroza under section 12022.53, subdivision (c), as a lesser 

included of section 12022.53, subdivisions (d), (e)(1), finding it would be an Eighth 

Amendment violation to do otherwise.
5

Pedroza filed a timely notice of appeal. After counsel filed a brief stating it 

found no arguable issues (see Wende, supra, 25 Cal.3d 436), we issued an order granting 

Pedroza 30 days to file a supplemental brief. He did not do so.

II

DISCUSSION

When defendant’s counsel identifies no arguable issues on appeal, an 

appellate court independently reviews the record for arguable issues. (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, the result will either be a reversal or a modification of 

the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

After independently reviewing the record, this court has found no arguable 

issues. The trial court properly limited its review to the record of conviction and did not 

engage in impermissible factfinding at the prima facie stage. (People v. Lewis (2021) 11 

Cal.5th 952, 971; People v. Drayton (2020) 47 Cal.App.5th 965, 980, abrogated on other 

grounds by Lewis, supra, 11 Cal.5th at p. 963.) The fact that the jury instructions did not 

instruct the jury on any theory that would be precluded under current law, such as natural 

and probable consequences or felony murder, lead to the conclusion that the jury could 

only have found that Pedroza acted with the intent to kill. Accordingly, he is precluded 

from relief under section 1172.6 as a matter of law.
6

III

DISPOSITION

The trial court’s order denying Pedroza’s section 1172.6 petition is 

affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

DELANEY, J.