Filed 11/2/23 P. v. Moreno CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BRENDA MORENO,

Defendant and Appellant.

 B319890

 (Los Angeles County

 Super. Ct. No. KA042134)

APPEAL from an order of the Superior Court of Los 

Angeles County, Rob B. Villeza, Judge. Affirmed.

Alex Coolman, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Seth McCutcheon and William H. 

Shin, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Brenda Moreno (defendant) appeals the trial court’s order 

denying her petition for resentencing filed pursuant to Penal 

Code section 1172.6.

1 Concluding there was no error, we affirm. 

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The underlying crimes

On a Tuesday night in late September 1998, defendant and 

four others—her roommate, her roommate’s boyfriend (the 

boyfriend), and two of his friends (Dennis Barroso and Brian 

Scott)—drove around the San Gabriel Valley committing a rash 

of violent crimes. Defendant joined in because she “wanted to get 

the money” from the robberies they planned to commit “to buy 

drugs and to pay [her] rent.”

With the roommate driving an SUV, the group prepared for 

the spree by making three stops—two separate stops to pick up a 

total of four shotguns and four handguns, and one stop to pick up 

black knitted gloves.

After the boyfriend suggested driving to Diamond Bar to 

find their first victim, defendant willingly gave the roommate 

driving directions.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

Effective June 30, 2022, section 1170.95 was renumbered 

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

For the sake of simplicity, we refer to the section by its new 

numbering only.
3

For their first crime of the evening, the group followed a 

woman driving an Infiniti. When the woman pulled over across 

the street from her house, the boyfriend and his two friends got 

out of their SUV, with shotguns and handguns on display. They 

demanded the woman’s purse, her watch and her necklace. The 

boyfriend drove off in the Infiniti. One of the boyfriend’s friends 

expressed his intention to “shoot her,” and the others had to talk 

him out of it. Afterwards, the group rendezvoused at the 

boyfriend’s apartment to split up the proceeds of the carjacking. 

Defendant “wanted to go and do it again” because it “seemed like 

fun” and “was so easy.” One of the boyfriend’s friends declined to 

continue.

The group then tried to commit a second carjacking in 

Rosemead, but ultimately failed. As before, the roommate 

followed the intended victim into his driveway, and the boyfriend 

and his remaining friend jumped out of the SUV to point 

shotguns at the driver. But the driver honked his horn, put his 

car in reverse, and drove away—but not before the remaining 

friend shot at the car.

After that failure, the roommate drove up alongside a group 

of four pedestrians—a man named Gilbert Rivas (Rivas), his 

fiancée, his fiancée’s teenage son and Rivas’s teenage brother. 

The boyfriend and his friend leaned out of the SUV’s windows

and demanded to know Rivas’s gang affiliation; when Rivas 

replied that he did not “bang,” the two men in the SUV 

proclaimed their affiliation with the “Valinda Flats” gang. They 

then jumped out of the car—with the two men again wielding 

shotguns. Rivas’s teenage brother handed over cash, some 

cigarettes and his new black Nikes. Defendant then demanded 

that Rivas’s fiancée hand over her rings. When she hesitated and 
4

explained that her rings had little monetary value but great 

sentimental value, defendant yelled, “Take off your rings, bitch!” 

and punched her in the face. When Rivas told defendant that she 

did not need to hurt his fiancée or disrespect them, the 

boyfriend’s friend shot Rivas in the stomach and the boyfriend 

shot Rivas twice more—once in the back and once in the head. 

They all got back into the roommate’s car, leaving Rivas to die 

from his wounds.

The next day, defendant dropped off the stolen Infiniti at a 

body shop; shredded some documents from the Diamond Bar 

robbery; changed her appearance by cutting and dyeing her hair; 

and spent the rest of the day “g[etting] high” and watching 

movies.

B. Plea, conviction, and sentencing

On June 1, 1999, defendant entered a plea agreement in 

which she pleaded guilty to second degree murder (§ 187, subd. 

(a)) and one count of robbery (§ 211) in exchange for the dismissal 

of the remaining charges and a sentence of 15 years to life in 

prison. As part of the plea agreement, defendant agreed 

to testify fully and truthfully at all stages of the trial of her 

codefendants—the roommate, the boyfriend, and the boyfriend’s 

friend. The trial court sentenced defendant to the agreed-upon 

term of 15 years to life. Defendant did not appeal her conviction.

II. Procedural Background

On November 30, 2020, defendant filed a petition for 

resentencing under section 1172.6. After appointing counsel for

defendant and entertaining briefing, the trial court in October

2021 issued an order to show cause and set the matter for an 

evidentiary hearing. 
5

On April 20, 2022, the trial court held an evidentiary 

hearing. At the beginning of the hearing, the court recited the 

list of documents that it had reviewed and considered for the 

purposes of the hearing. Among other things, that list included 

(1) the pleadings and attached exhibits; (2) the record of 

conviction, which included “the preliminary hearing transcript” 

and “portions of the trial transcript, including the testimony of 

[defendant] as a witness for the People against the remaining 

defendants”; (3) the plea agreement; and (4) the Court of Appeal 

decision issued in the boyfriend’s friend’s appeal on April 24, 

2001.2 Defendant had no objection to the admission of any of the 

listed items. Defendant introduced no new evidence and did not 

testify. 

The trial court denied defendant’s petition after finding, 

beyond a reasonable doubt, that she was a major participant in 

the underlying robbery and had acted with reckless disregard for 

human life. Specifically, the court found defendant (1) played a 

major role in planning the robberies and “provided directions to 

the targeted areas where the incidents occurred”; (2) knew guns 

would be used to commit the robberies because she was inside the 

car when they were retrieved and used in the earlier incidents;

(3) was aware of the danger posed by the crime because the 

boyfriend’s friend had previously fired his weapon during the 

failed carjacking; (4) did nothing to minimize the risk of violence 

but instead escalated the Rivas robbery by punching Rivas’s 

fiancée in the face when she refused to hand over her rings,

causing Rivas to intervene, leading to his death; and (5) did not 

render any aid to Rivas but fled with the others.

2 (People v. Barroso et al. (Apr. 24, 2001, B135322) [nonpub. 

opn.].)
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III. Appeal

Defendant filed this timely appeal.

DISCUSSION

Defendant argues that the trial court erred in denying her 

petition because (1) the court impermissibly relied on the facts 

set forth in the appellate opinion involving the boyfriend’s friend, 

in violation of section 1172.6, subdivision (d)(3); and (2) the court 

misconstrued one snippet of her testimony at the boyfriend’s 

friend’s trial.3

I. Pertinent Law

In 2018, our Legislature amended the definition of 

“murder” in our state to preclude a jury from “imput[ing]” the 

“malice” element of that crime “based solely on [a defendant’s] 

participation in a crime.” (§ 188, subd. (a)(3).) Our Legislature’s 

purpose was to ensure that “[a] person’s culpability for murder 

[is] premised upon that person’s own actions and subjective mens 

rea.” (Stats. 2018, ch. 1015, § 1(g).) As amended, liability for 

murder is limited to persons (1) who are the actual killer; (2) who 

aided and abetted the actual killer in the murder (that is, who 

acted with the intent to kill); or (3) who were a major participant 

in the underlying felony that resulted in the killing, but only if 

3 In her opening brief, defendant argued that the record did 

not support five specific factual findings made by the trial court.

This argument was premised on the trial court’s incorrect 

reference to only one of three volumes of transcripts from the 

boyfriend’s friend’s trial. When the People pointed out the trial 

court’s error and explained how the other two volumes of 

transcripts set forth the evidence that supported the factual 

findings defendant attacked, defendant in her reply appropriately 

withdrew that argument. Thus, we have no occasion to address 

it.
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they also acted with reckless indifference to human life. (§§ 188, 

subd. (a)(3), 189, subd. (e); e.g., People v. Johns (2020) 50 

Cal.App.5th 46, 58-59.)

Section 1172.6 is the procedural vehicle by which persons 

convicted in now-final judgments can seek to vacate convictions 

that do not satisfy the now-current definition of “murder.” 

Where, as here, a defendant files a facially sufficient petition and 

the record does not otherwise foreclose relief as a matter of law, 

the trial court must issue an order to show cause and convene an 

evidentiary hearing. (§ 1172.6, subd. (c).) At the hearing, the 

People have the burden of proving to the trial court, as an 

independent factfinder, that a defendant is guilty of murder on a 

still-valid theory. (§ 1172.6, subd. (d)(3).) At that hearing, the 

Evidence Code “govern[s],” “except that the court may [also] 

consider” (1) “evidence previously admitted at any prior hearing 

or trial that is admissible under current law,” (2) “stipulated 

evidence,” (3) “matters judicially noticed,” and (4) “the procedural 

history of the case recited in any prior appellate opinion.” (Ibid.)

II. Analysis

Neither of defendant’s arguments has merit.

The trial court did not err by impermissibly considering the 

facts from the appellate opinion in the boyfriend’s friend’s case. 

To begin, the trial court did not rely on the facts from that 

opinion. Defendant asserts that the court cited the opinion for 

the proposition that defendant jumped out of the car to confront 

Rivas and the others while armed, but the trial court cited the 

preliminary hearing transcript—not the appellate opinion. 

Further, whether defendant was armed at that time was not a 

critical factor in the trial court’s analysis of whether she acted 

with reckless indifference to the value of human life; indeed, the 
8

court remarked that “defendant didn’t supply or use guns during 

the crime spree.” (Italics added.) Lastly, even if the trial court 

had relied on the passage from the appellate opinion indicating 

that all three people who jumped out of the SUV were armed, this 

error is not cognizable because defendant forfeited the error by 

saying she did not “object” to the trial court’s unrestricted 

reliance on that opinion. Defendant’s argument that section 

1172.6, subdivision (d)(3), precludes a forfeiture or waiver was 

rejected in People v. Vance (2023) 94 Cal.App.5th 706, 713-714. 

We see no basis to disagree with Vance.

The trial court also did not misconstrue a snippet of her 

testimony from the boyfriend’s friend’s trial. At that trial, she 

testified, “. . . I chose to get off and sock this lady, and maybe that 

did trigger off the shooting . . . maybe I was the person that 

triggered off the shooting, you know, and I feel good.” (Italics 

added.) She further explained, “Even though I’m crying, I feel 

good that I came out and I said the truth because this guy’s life 

was taken away.” (Italics added.) Defendant complains that the 

trial court read the first snippet of her testimony as indicating 

that she “fe[lt] good” about triggering the shooting. We agree 

that the full context of her testimony would not support this 

reading, but the trial court did not construe her testimony in this 

way. To the contrary, when assessing whether defendant acted 

with reckless indifference to human life, the court repeated 

defendant’s statement verbatim on two occasions but on neither 

occasion commented on defendant’s use of the word “good.” We 

decline to invalidate the court’s ruling on the basis of a 

misconstruction of the court’s reasoning.

And even if we assume that the trial court somehow 

committed either error, those errors were harmless because 
9

substantial evidence supports the trial court’s finding beyond a 

reasonable doubt that defendant acted with reckless indifference 

to human life—even if we ignore the contents of the appellate 

opinion and construe the “feel good” comment in the manner 

defendant suggests.4 (People v. Nieber (2022) 82 Cal.App.5th 458, 

476 [applying substantial evidence review].)

In People v. Banks (2015) 61 Cal.4th 788 (Banks) and 

People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court

spelled out that a defendant acts with reckless indifference to 

human life when she “‘“knowingly engag[es] in criminal activities 

known to carry a grave risk of death.”’” (Banks, at p. 801, 

quoting People v. Estrada (1995) 11 Cal.4th 568, 577, 

quoting Tison v. Arizona (1987) 481 U.S. 137, 157.) Our Supreme 

Court has identified a number of considerations bearing on 

whether a defendant has acted with reckless indifference to 

human life. “No one of these considerations is necessary, nor is 

any one of them necessarily sufficient” (Banks, at p. 803); what 

matters is the totality of the considerations (In re Scoggins (2020)

9 Cal.5th 667, 677). The considerations are: (1) “Did the 

defendant use or know that a gun would be used during the 

[underlying] felony,” and, relatedly, “[h]ow many weapons were 

ultimately used?”; (2) “Was the defendant physically present at 

the crime,” such that she had “the opportunity to restrain the 

crime or aid the victim?”; (3) “What was the duration of the 

interaction between the perpetrators of the [underlying] felony 

and the victims?”; (4) “What was the defendant’s knowledge of . . . 

her confederate’s propensity for violence or likelihood of using 

4 We need not examine the major participant element 

because defendant concedes this element. (People v. Bascomb

(2020) 55 Cal.App.5th 1077, 1084, 1087.)
10

lethal force?”; and (5) “What efforts did the defendant make to 

minimize the risks of violence during the felony?” (Ibid., citing 

Clark, supra, 63 Cal.4th at pp. 618-623.) 

The Banks factors support the trial court’s finding that 

defendant acted with reckless indifference to human life.

First, defendant knew that guns would be used in the 

confrontation with Rivas and his family. She was present when 

the group retrieved the cache of guns; she was present when the 

boyfriend and his friends displayed the guns during the first 

carjacking and second failed carjacking; and she was present 

when the boyfriend’s friend shot at the fleeing victim of the 

second carjacking. Whether defendant herself used a gun does 

not diminish her awareness that her compatriots were “locked 

and loaded.” 

Second, defendant knew of the propensity for violence of 

her cohorts because of what happened in the two carjackings 

earlier in the evening.

Third, defendant was present at the crime scene and played 

an integral part in the robbery. When defendant believed Rivas’s 

fiancée was not complying quickly enough with the group’s 

demands, she stepped forward and punched the fiancée in the 

face and demanded her rings. It was that conduct that 

immediately escalated the confrontation, as defendant herself 

acknowledged when testifying.

Fourth, defendant did nothing to minimize the risk of 

violence. To the contrary, defendant knew the boyfriend’s friend

was trigger happy and she nevertheless escalated the situation 

by punching Rivas’s fiancée. 

Finally, defendant did nothing to aid Rivas when he was 

shot. She fled with the others, and later disguised her looks to 
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evade arrest. 

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ