Filed 7/9/21 P. v. Maldonado CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN DINO MALDONADO,

Defendant and Appellant.

 B305685

 (Los Angeles County 

 Super. Ct. No. A593783)

APPEAL from an order of the Superior Court of Los 

Angeles County. Dorothy L. Shubin, Judge. Affirmed. 

Valerie G. Wass, 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, Assistant 

Attorney General, Amanda V. Lopez and Stephanie A. Miyoshi, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

Defendant and appellant Ruben Dino Maldonado appeals 

from the denial of his petition for resentencing pursuant to Penal 

Code section 1170.95. We affirm.

Defendant was charged with five felonies arising from a 

series of crimes committed with three codefendants against 

multiple victims on the night of October 27, 1988: one count of 

murder (Pen. Code, § 187, subd. (a)), one count of assault (§ 245, 

subd. (a)(1)), two counts of robbery (§ 211), and one count of 

attempted robbery (§ 211, § 664). A robbery-murder special 

circumstance allegation was also alleged (§ 190.2, subd. (a)(17)). 

In December 1989, defendant pled guilty to one count of 

second degree murder and one count of robbery. The remaining 

counts and special allegation were dismissed as part of the plea 

agreement. Defendant was sentenced to 15 years to life in prison

for the murder with a three-year concurrent term for the robbery

and credited with 776 days of presentence custody credits. 

In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was 

passed. Penal Code section 1170.95 was enacted as part of the 

legislative changes effected by Senate Bill 1437 and became 

effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)

In early 2019, defendant filed in propria persona a form 

petition for resentencing pursuant to Penal Code section 1170.95. 

The court appointed counsel for defendant. Defendant 

subsequently substituted in privately retained counsel. The 

court issued an order to show cause. The prosecution filed an 

opposition, defendant filed a reply, and the parties filed 

supplemental briefing. 

An evidentiary hearing pursuant to Penal Code 

section 1170.95, subdivision (d)(3) was held March 9, 2020. 

Defendant was present, represented by counsel, and the 
3

proceedings were reported. The court stated it had read the 

parties’ briefs and reviewed the case file, including the plea 

transcript and the preliminary hearing transcript. The 

prosecution offered the transcript of defendant’s May 2018 parole

board hearing, and it was admitted into evidence (the court 

having overruled defendant’s objection to the transcript at a prior

hearing). Defendant offered the testimony of Derrick Limbaga, 

one of defendant’s accomplices who also happened to be his 

cousin. His testimony was admitted over the prosecution’s 

objection. No other evidence was offered at the hearing. Neither 

party contends here that any evidence was improperly admitted 

or excluded at the hearing. 

After entertaining argument, the court denied defendant’s 

petition, explaining “that the prosecution has established beyond 

a reasonable doubt that [defendant] is guilty of murder under the 

theories of implied malice as well as major participant who acted 

with reckless disregard for human life.” The court stated it 

considered “the totality of the evidence” including “the 

preliminary hearing transcript, the parole hearing transcript of 

[defendant]” and the testimony presented at the hearing. The 

court underscored that defendant’s own statements established 

he was the “ringleader” who was “showing others how to live a 

life of violence,” he “initiated the attack” on the victim, and he 

engaged in “a pattern of extreme violence” that evening. 

Defendant appealed. He contends the trial court erred in 

denying his petition because the evidence fails to show beyond a 

reasonable doubt that he could be found guilty of murder under 

any theory that remains viable under the law as amended by 

Senate Bill 1437. Defendant says he was not the actual killer 

and the evidence at best supports murder under the now 
4

invalidated natural and probable consequences doctrine. We do 

not agree. 

Initially, we note the trial court, in accordance with Penal 

Code section 1170.95, subdivision (d)(3), sat as an independent 

factfinder and held the prosecution to the beyond a reasonable 

doubt standard of proof. While our Supreme Court is currently 

considering the issue (see, e.g., People v. Lopez (2020) 

56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974), 

we agree with Lopez that is the correct standard to be applied at 

a post-OSC evidentiary hearing pursuant to section 1170.95, 

subdivision (d)(3). 

We review the trial court’s order for substantial evidence. 

(People v. Clements (2021) 60 Cal.App.5th 597, 618, review

granted Apr. 28, 2021, S267624 [appellate court reviews trial 

court’s factual findings on a Pen. Code, § 1170.95 petition for 

substantial evidence]; see also 9 Witkin, Cal. Proc. 5th Appeal 

§ 365 (2020) [“Where the evidence is in conflict, the appellate 

court will not disturb the verdict of the jury or the findings of the 

trial court.”]; People v. Hernandez (2008) 45 Cal.4th 295, 299

[factual findings by court reviewed for substantial evidence].)

Recently, our Supreme Court explained that 

“notwithstanding Senate Bill 1437’s elimination of natural and 

probable consequences liability for second degree murder, an 

aider and abettor who does not expressly intend to aid a killing 

can still be convicted of second degree murder if the person knows 

that his or her conduct endangers the life of another and acts 

with conscious disregard for life.” (People v. Gentile (2020) 

10 Cal.5th 830, 850.) 

Defendant did not challenge below that he was a major 

participant in the assault on Mr. Ramirez, the murder victim. 
5

Indeed, defendant referred to himself as the “ringleader” during 

the crime spree that resulted in the fatality. He only argued the 

evidence did not establish that he acted with reckless 

indifference. 

The following nonexclusive list of factors is relevant to the

inquiry whether a defendant acted with reckless indifference: 

“What role did the defendant have in planning the criminal 

enterprise that led to one or more deaths? What role did the 

defendant have in supplying or using lethal weapons? What 

awareness did the defendant have of particular dangers posed by 

the nature of the crime, weapons used, or past experience or 

conduct of the other participants? Was the defendant present at 

the scene of the killing, in a position to facilitate or prevent the 

actual murder, and did his or her own actions or inaction play a 

particular role in the death? What did the defendant do after 

lethal force was used? No one of these considerations is 

necessary, nor is any one of them necessarily sufficient.” (People 

v. Banks (2015) 61 Cal.4th 788, 803.)

The evidence amply supports the conclusion that defendant 

here acted with reckless indifference. Defendant admitted that

he and his accomplices were driving around that evening in 

October 1988 “looking for victims to hurt,” and that he initiated 

the assault on Mr. Ramirez and beat him until he was 

unconscious on the ground. He said that while Mr. Ramirez lay 

helpless on the ground, his accomplice, Mr. Limbaga, retrieved a 

hammer from the truck and struck Mr. Ramirez “three times” in 

the back of the head. Defendant did nothing to assist 

Mr. Ramirez while his accomplice engaged in this behavior, but 

got back into the truck with his accomplices, divvied up the 

money stolen from Mr. Ramirez and then continued to drive 
6

around looking for additional victims “to hurt.” This testimony 

was bolstered by the officer’s testimony at the preliminary 

hearing that defendant made consistent statements during two 

separate police interviews conducted a couple of days after the 

crimes occurred. 

DISPOSITION

The order denying defendant’s resentencing petition is

affirmed. 

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. 

WILEY, J.