Filed 6/1/21 P. v. Pineda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

ALEJANDRO PINEDA,

Defendant and Appellant.

 B304786

 (Los Angeles County

 Super. Ct. No. VA126268)

APPEAL from an order of the Superior Court of 

Los Angeles County. Roger T. Ito, Judge. Affirmed.

Thomas Ian Graham for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and Stacy S. Schwartz, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________________
2

In 2011, defendant and appellant Alejandro Pineda was 

involved in two separate criminal incidents: In the first, he 

assaulted and robbed Marc Wilkinson (Wilkinson); in the second, 

he was involved in a similar scenario during which Jaime 

Augustin Negrete (Negrete) shot and killed Hugo Ortiz (Ortiz).

After being charged with various crimes, in 2015, a jury 

convicted defendant of first degree residential robbery (Pen.

Code, § 211; count 2);1 assault with a firearm (§ 245, subd. (b); 

count 3); murder (§ 187, subd. (a); count 4); and first degree 

burglary (§ 459; count 8).2 He was sentenced to life in state 

prison without the possibility of parole, plus 25 years to life. On 

direct appeal,3 we reversed the jury’s true findings on section 

12022.53 enhancements attached to counts 3 and 8, and agreed 

with the parties that defendant’s sentence on count 3 should have 

been stayed pursuant to section 654; we remanded the matter to 

the trial court with directions. (People v. Negrete (May 30, 2017, 

B265670) [nonpub. opn.], p. 3 (Negrete).)

In 2019, defendant filed a petition for resentencing 

pursuant to section 1170.95. After reviewing the petition, the 

People’s oppositions, and defendant’s replies, the trial court found 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 Counts 1 through 3 related to the incident involving 

Wilkinson. Count 1 charged defendant with attempted murder; 

the jury found defendant not guilty on this count. Counts 4 and 8 

concerned the incident during which Ortiz was killed.

3 The direct appeal was brought by defendant and Negrete.
3

that defendant had established a prima facie case and held an 

evidentiary hearing pursuant to section 1170.95, subdivision (d). 

Following the presentation of evidence and argument, the trial 

court denied defendant’s petition, finding that he was a major 

participant in the underlying felony and acted with reckless 

disregard for life.

Defendant timely filed a notice of appeal, arguing that 

insufficient evidence supports the trial court’s finding that he was 

a major participant in the armed robbery who acted with reckless 

indifference to human life.

Because the trial court’s order is supported by substantial 

evidence, we affirm.

FACTUAL BACKGROUND

The Crimes

On August 20, 2011, Wilkinson went to Los Angeles to buy 

marijuana from defendant. After meeting in a public parking lot, 

the men drove together in Wilkinson’s car to a house in Bell 

Gardens. As soon as Wilkinson approached a detached garage at 

the residence, defendant shoved him. At that moment, two men 

approached Wilkinson with baseball bats, demanding money. 

One man hit Wilkinson in the leg, and Wilkinson struggled with 

the men. Then, a third man approached with a gun. All the 

while, defendant stood by the door. Wilkinson pleaded for his 

life, and the men took his money, phones, wallet, and knife. After 

threatening to kill him if he said anything, the men eventually 

walked Wilkinson to his car and let him drive away. (Negrete, 

supra, B265670, at pp. 5–6.)

Several months later, on December 17, 2011, Jaime 

Martinez (Martinez) agreed to go with Ortiz and Adam Rosales to 

meet up with defendant, who was acting as a “‘middle man’” in a 
4

drug transaction, at a doughnut shop. (Negrete, supra, B265670, 

at pp. 5–6.)

After a five-minute conversation at the doughnut shop, the 

group followed defendant to the Bell Gardens house. Once at the 

location, defendant told Ortiz to leave his gun behind in the car, 

and the men followed defendant to the detached garage. 

(Negrete, supra, B265670, at p. 6.)

As soon as the group entered the garage, they were 

“‘ambushed’” by men with a wooden baseball bat and a gun. At 

some point, defendant struck Martinez with the bat. As this was 

occurring, Negrete shot and killed Ortiz. (Negrete, supra, 

B265670, at pp. 6–7.)

Gang Evidence

At trial, a gang expert testified that Negrete was a member 

of the Bratz gang and that the house where the crimes occurred 

was a long-standing Bratz location. He was not familiar with 

defendant and did not believe that he was a member of the gang. 

That said, the expert opined that the crimes were committed in 

association with or for the benefit of the Bratz gang. (Negrete, 

supra, B265670, at pp. 8–9.)

PROCEDURAL BACKGROUND

On May 14, 2019, defendant filed a petition for 

resentencing pursuant to section 1170.95. At the initial hearing 

on December 9, 2019, the trial court granted an order to show 

cause and ordered an evidentiary hearing pursuant to 

subdivision (d). Also at that time, the parties stated that they did 

not intend to call witnesses at the evidentiary hearing, and they 

agreed that the trial court could consider the record of conviction.

At the January 16, 2020, evidentiary hearing, the trial 

court indicated that to prepare for the hearing, it had reviewed 
5

“the entirety of the record of conviction including the trial 

transcripts.” It then detailed the facts of the crimes as follows:

“So [defendant] was, for lack of a better word, a 

. . . facilitator for two distinct robberies, one of which the victim’s 

name was Mark Wilkinson, which predates the murder case—or 

should I say the felony murder case by about three or four weeks.

“And in that particular case Mr. Wilkinson and [defendant] 

had agreed to a drug transaction. [Defendant] took 

Mr. Wilkinson to the location where the transaction was to take 

place. Mr. Wilkinson had a substantial amount of cash with him. 

Mr. Wilkinson was directed where to go and Wilkinson—

[defendant] followed or I should say directed Mr. Wilkinson to go 

into a garage type location, which is according to testimony, is a 

known Bratz street gang hangout.

“Once in the location, Mr. Wilkinson relate[d] he was 

pushed by [defendant] into the garage or into that room and 

immediately confronted by multiple individuals armed with 

baseball bats, some of whom struck Mr. Wilkinson, and 

Mr. Wilkinson was threatened not by [defendant] but by two 

individuals who were at that location who pointed guns at him. 

One racked a round and said words to the effect give us the 

money or we’ll quote, unquote, ‘Blow your fucking head off.’

Mr. Wilkinson complied. [¶] . . . [¶]

“Subsequent to that date, [defendant] once again acted as 

a go-between or as a facilitator for a second transaction. This 

time between several individuals who were the victims on the 

187, the 211/187 case, an individual named Rosales, the victim 

Ortiz . . . .

“In any event, it’s at least two individuals. . . . [¶] . . . [¶] 

And those individuals were driven to the location by [defendant],
6

either were driven to or were accompanied to the location in a 

vehicle by [defendant]. [Defendant] instructed them to relinquish 

any firearms that they had in their possession at the time, that 

they were going to go into the garage area. Once again, the 

known Bratz gang hangout. [¶] . . . [¶]

“[Defendant] directed the three individuals, number one, to 

relinquish their firearms. I think it was Mr. Ortiz who had a 

firearm on him who removed it and put it under the car seat, and 

the three victims went into the location ostensibly for the purpose 

of purchasing methamphetamine.

“[Defendant]—there was statements, testimony to the 

effect that [defendant] told Ortiz and/or the other individuals 

don’t bring a gun with you because there might be children or 

something to that effect. Then [defendant] and the three victims 

went into the location, whereupon [defendant] pushed one of the 

three victims, I think it was Mr. Martinez, to the ground. 

Martinez was then assaulted by individuals with baseball bats.

“Mr. Martinez relates that it was [defendant] who used a 

baseball bat on him. . . .

“So for the most part I think that is the extent of the fact 

pattern that was presented at the trial of both . . . [defendant] 

and Negrete. [Defendant] was convicted of the felony murder not 

as the actual shooter but as a participant, as an aider and abettor 

on that 211 count.”

After some discussion by counsel of the sequence of events,

the trial court continued:

“There were varying accounts of exactly the sequence that 

takes place in the garage. . . .

“But more specifically for my analysis I do want to note the 

following. I’ve had a chance to review the appellate record 
7

which—in which the appellate court made some specific findings 

that are along the lines of the analysis that is used for 1437, 

1170.95. That is specifically for the special circumstance to apply 

the law requires that the person be a major participant and that 

he act with reckless disregard.

“Those were analys[e]s that the Court of Appeal actually 

said, well, [defendant] was a major participant in the fact he 

acted with reckless disregard.[4] The analysis for 1170.95 

purposes—I don’t know if it’s exactly the same analysis, but I’m 

going to go ahead and indicate for my own purpose I kind of 

reviewed it de novo.

“But keeping in mind that the Court of Appeal did make 

those findings, I’m not resting my own analysis exclusively to the 

Court of Appeal’s analysis because I’m not quite certain that it’s 

exact same analysis. I don’t know if that was the intention, but I 

do know that was included in the special circumstance allegation. 

In order for him to find special circumstance, you have to have 

those two things as a nonshooter.”

After defense counsel erroneously argued that our opinion 

in Negrete, supra, B265670, at page 16, deeming defendant a 

4 It appears that the trial court is referring to our finding in 

Negrete that defendant “was a major participant in the burglary,” 

by “lur[ing] Ortiz and his companions to the garage,” disarming 

them, and then “actively participat[ing] in the ‘ambush.’” 

(Negrete, supra, B265670, at pp. 16–17.) We also held that 

defendant acted with reckless indifference to human life by 

“actively participat[ing] in an armed robbery with known gang 

members,” “purposely disarm[ing] Ortiz and his companions, 

leaving them helpless during an attack that he knew was going 

to occur. And, after the shooting, [defendant] fled the garage and 

failed to summon help.” (Negrete, supra, B265670, at p. 17.)
8

“major participant” who acted with reckless disregard, predated 

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

5 the trial court 

explained:

“I think we can all agree that Banks requires a multiplepart analysis as to the, quote unquote, ‘culpability’ of the 

nonshooter.

“And I want to make the following observation. In the 

hypothetical—I should say in the event that [defendant] had only 

been involved in the 211/187 as an aider and abettor, the 

argument in my estimation is much more compelling that his 

level of culpability would be lesser and this is why.

“Wilkinson, which predated the Ortiz murder, involved the 

same set of characters, involved a similar M.O., and most 

significantly my estimation Wilkinson was subjected to an 

enormously dangerous and scary predicament where he was 

threatened with firearms. He was told in no uncertain terms 

that his head would be blown off. They racked a round and they 

also used bats in assaulting Mr. Wilkinson in attempting to get or 

in fact succeeding to get—I think it was $9,000 he had on him for 

this elicit marijuana transaction.

“But [defendant] was present during that assault and was 

present during that robbery. And why I think that is significant 

is this. Because the second part of this analysis requires whether 

5 Our opinion in Negrete was filed in 2017; Banks and People 

v. Clark (2016) 63 Cal.4th 522, 611 (Clark) were decided in 2015 

and 2016, respectively. Defendant concedes this misstep in his 

reply brief, noting that Banks and Clark were decided after 

defendant’s conviction and sentence.
9

or not he acted with reckless disregard, and that is more in line 

with what I’ve indicated with [Tison v. Arizona (1987) 481 U.S. 

137]. Okay?

“This individual—in my estimation [defendant] had to be 

on notice of the level of brutality and violence that the Bratz gang 

members whom he arguably set up and orchestrated that initial 

robbery, that level of knowledge of their behavior, their level of 

violence, that the potentiality for enormous harm—in my 

estimation it’s very, very possible Wilkinson would have been 

murdered as well, given the fact they had multiple firearms, they 

put guns to his head, they told him they would blow his fucking 

head off and they assaulted him with the bats. Any one of those 

things, the bats, the firearms, could have resulted in Wilkinson’s 

death. . . .

“However, that fact pattern in my estimation is very 

compelling to determine whether or not [defendant] acted, 

number one, as a major participant, because it was quite certain 

from his own statement and from statements of others that [he] 

was the linchpin and the facilitator for both of these incidents.

“More specifically, on the second incident with Negrete and 

[defendant], [defendant] is the one that set it up. He is the one 

that disarmed—I should say Ortiz. He is the one that was 

perhaps not the mastermind, but the person who got it all set up. 

He was the individual, and he did not stay—the evidence was not 

that he stayed outside of the garage. The evidence was he did not 

stay in the car. He was not a getaway driver as in some of these

circumstances are. He was not a passive bystander to the 

incident that occurred inside the garage. He was an active 

participant.
10

“And, [defense counsel], my estimation is because he was 

present when Wilkinson was assaulted, was robbed and there 

was a great deal of brutality involved, that in my estimation 

demonstrates his reckless disregard vis-à-vis the second incident. 

And that is because if he sees this happen to Mr. Wilkinson, he 

knows—in my estimation he would know that the level of 

violence or the level of defensiveness that’s possible with now 

actual drug dealers . . . .

“[Defendant] was aware of this, and so the potentiality for 

harm is in my estimation exponentially greater. That is, you 

take guys in there that are perhaps prone to violence themselves, 

who arm themselves with firearms themselves, you disarm them, 

you put them into this closed environment where there’s baseball 

bats and people armed with firearms . . . . [¶] . . . [¶]

“And along the lines of the Banks analysis, step 3, what 

awareness did the defendant have of the particular dangers 

posed by the nature of the crime, weapons used or past 

experience or conduct with the other participants? In my 

estimation that militates most certainly to that degree of reckless 

disregard.

“Factor number 4 was the defendant present at the scene of 

the killing in a position to facilitate or prevent the actual 

murder. . . . In my estimation that presence inside the garage, 

using a baseball bat, not running away or fleeing when the fight 

goes down, he is participating. He is part of this crime and he’s 

using a dangerous, deadly weapon himself. Then finally after the 

fatal shot is fired, he runs away and then flees for some period of 

time out of the country.”

The trial court tentatively concluded that “the D.A. would 

in fact be able to prove beyond a reasonable doubt that 
11

[defendant] acted as a major participant and acted with reckless 

disregard for human life in the actual felony murder.” After 

hearing further argument from defense counsel, the court 

reiterated that “[i]t’s beyond a reasonable doubt.”

DISCUSSION

I. Relevant law

Section 1170.95 provides a mechanism whereby people 

“who believe they were convicted of murder for an act that no 

longer qualifies as murder following the crime’s redefinition in 

2019[] may seek vacatur of their murder conviction and 

resentencing by filing a petition in the trial court.” (People v. 

Drayton (2020) 47 Cal.App.5th 965, 973.)

In order to obtain resentencing relief, the petitioner must 

file a facially sufficient section 1170.95 petition and then satisfy 

two prima facie tests to demonstrate that he potentially qualifies 

for relief, thereby meriting an evidentiary hearing. (§ 1170.95, 

subd. (c).)

At the evidentiary hearing, the parties may rely upon 

evidence in the record of conviction or new evidence to 

demonstrate whether the petitioner is eligible for resentencing. 

(§ 1170.95, subd. (d)(3).) The prosecution bears the burden of 

proving, “beyond a reasonable doubt, that the petitioner is 

ineligible for resentencing.” (§ 1170.95, subd. (d)(3); see also 

People v. Lopez (2020) 56 Cal.App.5th 936, 942, review granted 

Feb. 10, 2021, S265974; People v. Rodriguez (2020) 58 

Cal.App.5th 227 (Rodriguez), review granted, Mar. 10, 2021, 

S266652 [reaching same result albeit for a different reason]; 

People v. Clements (2021) 60 Cal.App.5th 597, 617–618, review 

granted, Apr. 28, 2021, S267624; People v. Duchine (2021) 60 

Cal.App.5th 798, 813–814; People v. Harris (2021) 60 Cal.App.5th 
12

939, 952, review granted, Apr. 28, 2021, S267802; and People v. 

Hernandez (2021) 60 Cal.App.5th 94, 103; but see People v. Duke

(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, 

S265309 [holding that the prosecution need only prove “that the 

defendant could still have been convicted of murder under the 

new law—in other words, that a reasonable jury could find the 

defendant guilty of murder with the requisite mental state for 

that degree of murder [under current law]. This is essentially 

identical to the standard of substantial evidence, in which the 

reviewing court asks ‘“whether, on the entire record, a rational 

trier of fact could find the defendant guilty beyond a reasonable 

doubt. . . . [¶] . . .” [Citation.]’ [Citation.]”].) Only if the 

prosecution cannot meet its burden is the defendant entitled to 

vacatur of the murder conviction and resentencing as set forth in 

section 1170.95, subdivision (e).

We review for substantial evidence the trial court’s factual 

determination under section 1170.95, subdivision (d)(3), that the 

prosecution proved beyond a reasonable doubt that the defendant 

was ineligible for resentencing. (Rodriguez, supra, 58 

Cal.App.5th at p. 238.)

II. The trial court did not err

The trial court properly denied defendant’s petition for 

resentencing because at the evidentiary hearing, it determined, 

beyond a reasonable doubt, that defendant is guilty of murder 

under current law as a major participant in the burglary who 

acted with reckless indifference to human life. (§ 189, subd. 

(e)(3).) As set forth above, the trial court summarized and 

applied the relevant Banks and Clark factors to defendant’s case. 

In so doing, it noted that defendant facilitated and participated in 

a violent robbery just four months before the robbery/murder at 
13

issue. And, regarding the second incident, the trial court detailed

defendant’s unmistakable participation in and facilitation of the 

events that led to the murder.

In addition, the trial court expressly relied upon Banks and 

Clark in finding that defendant acted with reckless indifference 

to human life. Specifically, defendant was present when 

Wilkinson was assaulted and robbed, thereby putting him on 

notice of the level of violence that could occur at one of these drug 

deals at the gang home. And, during the December incident, 

defendant expressly disarmed the victims and then put them in a 

closed environment where people were waiting with baseball bats 

and firearms. (Banks, supra, 61 Cal.4th at p. 803 & fn. 5.)

To the extent defendant characterizes the evidence 

differently and asks us to draw a conclusion different than the 

one reached by the trial court, his argument fails. It is wellsettled that when considering a challenge to the sufficiency of the 

evidence, we do not reweigh the evidence or redraw competing 

inferences from competing circumstances. (People v. Nguyen

(2015) 61 Cal.4th 1015, 1055–1056.)
14

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT