Filed 10/15/20 P. v. Olivas CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO JOAQUIN OLIVAS,

Defendant and Appellant.

 A159163

 (San Mateo County

 Super. Ct. No. SC058741A)

Defendant filed a petition for resentencing under Penal Code1

section 1170.95. The trial court denied defendant’s petition, finding he was 

convicted as the actual killer. Defendant’s appellate counsel has filed a brief

in which he raises no issues and asks us to review the record independently 

under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has advised 

defendant of his right to file a supplemental brief to bring to this court’s 

attention any issue he believes deserves review. Defendant did not do so. 

Our review of the entire record reveals no arguable issues cognizable in this 

appeal. We therefore affirm.

PROCEDURAL BACKGROUND

The San Mateo County District Attorney’s Office charged defendant on 

June 2, 2005 with murder (§ 187, subd. (a)) and assault on a child resulting 

1 All statutory references are to the Penal Code. 
2

in death (§ 273ab). A jury convicted him in 2007 of both charges. The court 

sentenced defendant to 25 years to life in prison. The Court of Appeal 

affirmed his conviction and sentence in 2009. (People v. Olivas (Oct. 29, 2009, 

A120088) [nonpub. opn.].) 

In March 2019, defendant filed a petition for resentencing under 

section 1170.95. He alleged he was not the actual killer, did not have the 

intent to kill, was not a major participant in a felony, and could not be 

convicted of murder because of changes to section 188. The trial court 

appointed counsel to represent defendant. 

The court denied defendant’s petition for resentencing explaining that 

after reviewing the documentation, it was apparent defendant was convicted 

as the actual killer. 

FACTUAL BACKGROUND

We derive the facts from our prior nonpublished opinion upholding 

defendant’s conviction, People v. Olivas, supra, A120088.

L.E. lived at her sister’s house with her sister’s family and a second 

sister. L.E. gave birth to Fernando in October 2002. Three months later, she 

returned to work leaving the infant with her sisters. On April 5, 2004, L.E. 

moved out of her sister’s home and into an apartment. 

Shortly after midnight on April 9, 2004, L.E. and defendant brought 

Fernando, then 17 months old, to the Seton Medical Center in Daly City. 

Though breathing, he was unconscious and unresponsive. Dr. Mark 

Alderdice and the medical staff made efforts to resuscitate the child; however, 

sadly, Fernando later died at Stanford Medical Center on April 13. 

Within minutes of their arrival at the hospital, Alderdice asked 

defendant what had happened. Defendant said Fernando had fallen off a bed 

that was two to three feet high onto the carpeted floor, tried to get up, fell 
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again, and bumped his head into a wall heater. Fernando was unresponsive. 

According to defendant, no other incidents had occurred that might account 

for the child’s comatose state. 

Further examination of Fernando revealed bruising on his forehead 

just above the nose and minor bruising on his legs. A CT scan revealed a 

subdural hematoma on the right side of Fernando’s brain. He had retinal 

hemorrhages in both eyes and was also bleeding from the gum area 

underneath his upper lip. The tear to the tissue in the gum area appeared to 

be fresh and likely occurred within a matter of hours before Fernando was 

brought to the hospital. Residual blood was discovered in his throat. 

Dr. Alderdice, a board-certified emergency medicine physician 

practicing in that capacity since 1989 and the administrative director for the 

emergency departments of 10 hospitals, suspected Fernando may have been 

violently shaken due to the subdural hematoma with the retinal 

hemorrhages. He thought it was “inconceivable” that the child would have 

sustained the injuries he had as a result of a fall from the bed and bumping 

his head into a wall heater. 

Alderdice found defendant’s demeanor to be extremely unusual and 

striking because he seemed agitated and angry unlike parents in that 

situation who were typically fearful and upset over a child’s injury. Neither 

parent told him the child had been hurt before the alleged fall from the bed. 

Police Detective Albert Cisneros spoke with defendant and L.E. at 

Seton Medical Center at 2:00 a.m. on April 9. Defendant told Cisneros he 

had driven L.E. to the BART station at around 7:00 p.m. the preceding day

and Fernando was with them. Upon returning to the apartment, defendant 

fed, bathed, and changed Fernando. After Fernando fell asleep, defendant 

took him to the bedroom, and placed him in the center of the queen-sized bed 
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with a pillow on either side of him. He left the room to call L.E. to find out 

when she would be done at work. Defendant told L.E. words to the effect that 

“he didn’t want to be kept waiting, he had to take care of his business. He 

didn’t want to do this again.” 

After finishing his call, defendant heard a “boom,” went into the 

bedroom, and saw Fernando “stagger[ ] up on his feet” and then fall forward 

and hit his head on the wall heater. The child fainted in his arms. He did 

not know why he did not call 911. He took Fernando with him and went to 

pick up L.E. at the San Francisco International Airport where she worked. 

Though Cisneros told defendant his account was inconsistent with 

Fernando’s injuries, defendant repeated the account he had already given, 

and repeated that account again when he was reinterviewed at the police 

station. Defendant told Cisneros the injuries to Fernando probably occurred 

when the child was in the care of L.E.’s sisters. 

Cisneros spoke with defendant on a third occasion on June 5, 2005. 

Defendant initially repeated his earlier account but when Cisneros told him 

the crime lab found blood on Fernando’s clothing, defendant stated for the 

first time that Fernando had fallen from the couch earlier in the evening with 

a baby bottle in his mouth. This fall, according to defendant, caused 

Fernando to bleed from the gum area of his mouth. Once again, he reiterated 

he had not been happy about how long he had to babysit for Fernando that 

evening, this caused problems between him and L.E., and he was considering 

ending his relationship with her. He also reiterated his claim that L.E.’s 

family members were responsible for Fernando’s injuries. 

Photos of Fernando taken by Detective Joseph Bocci at the Stanford 

Medical Center showed “at least one dozen” bruises on Fernando, most of 

which were on his head “running parallel with the eyebrow line along the 
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bridge of the nose over to the opposite side of the temple.” There was “faint 

bruising” at the “lower jaw line area,” and Bocci noticed a reddish circular 

mark about the size of a 50-cent piece, in the middle of Fernando’s chest. 

 A criminalist determined the bed at the crime scene was two feet two 

inches in height and was located four feet away from the wall heater. The 

criminalist observed blood stains on a pillowcase and on the top sheet of the 

bed, saw no signs of impact on the heater, and found no blood on it. A layer 

of undisturbed dust was on the heater that would have been displaced if 

someone had struck the heater. The criminalist opined the heater was not 

disturbed within the previous nine hours or the night before. 

L.E.’s sisters testified Fernando did not have any bumps, bruises, 

broken bones or other injuries when he and his mother moved out on April 5, 

2004. He never had any serious injuries when he lived with them. 

Forensic pathologist Thomas Rogers performed Fernando’s autopsy. 

He opined that Fernando died from “multiple blunt injuries,” consistent with 

being beaten to death. In Dr. Rogers’s opinion, Fernando’s injuries were 

inconsistent with having been caused by a fall off a bed, landing on a carpet, 

and then hitting his head against a wall heater. It was significant that 

Fernando sustained blunt injuries over a wide area of his body. 

Neuropathologist Hannes Vogel examined Fernando’s brain. Dr. Vogel 

opined that the subdural hematoma was a result of infliction of traumatic 

injury. His examination suggested there may have been some injury to 

Fernando’s spinal cord, as well. Vogel believed there was “no chance 

whatsoever” that Fernando’s injuries occurred as a result of a fall from a bed 

that was two feet off the floor. The multiple severe hemorrhages in front of 

and behind Fernando’s retinas, in Vogel’s opinion, were indicative of a blunt 

force trauma. Based on his examination, Vogel testified that although he 
6

could not exclude a severe car accident or fall from a high building as possible 

causes of Fernando’s injuries, it would be a “stretch” to attribute injuries of 

such severity even to a fall from a two-story building or a car accident 

without restraints at 30 to 40 miles per hour. 

Dr. Peter Egbert of the ophthalmic pathology laboratory at Stanford 

Medical Center examined Fernando’s eyes, and concluded that the pattern of 

injuries he observed “occurs exclusively . . . in abusive injuries.” In his 

opinion, no explanation other than child abuse accounted for Fernando’s 

retinal hemorrhages. 

Forensic DNA analysis revealed that Fernando’s blood was on a baby 

jumper located on the dresser, a baby pajama top found on the shower 

curtain rod, as well as the pillowcase and top sheet taken from the bed. 

Fernando’s blood was also found on the on the T-shirt defendant was wearing 

on the night of the incident, along with defendant’s own blood. Another stain 

on defendant’s T-shirt was found to contain a mixture of Fernando’s and 

defendant’s blood. 

The defense rested without introducing any evidence. In closing 

argument to the jury, defense counsel maintained that defendant’s 

statements to the police about the circumstances of Fernando’s injuries were 

consistent and true, and urged the jury to find that the prosecution failed to 

prove defendant’s guilt beyond a reasonable doubt. 

DISCUSSION

Initially, we recognize the court in People v. Cole (2020) 52 Cal.App.5th

1023, 1028, recently held “that Wende’s constitutional underpinnings do not 

apply to appeals from the denial of postconviction relief,” and that People v. 

Serrano (2012) 211 Cal.App.4th 496, 500, 503, held the Wende “ ‘prophylactic 

framework’ ” does not extend beyond the first appeal of right from a criminal
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conviction. Nonetheless, we have reviewed the record and found no arguable 

issues. 

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) limited

the felony-murder rule by adding subdivision (e) to section 189. That 

subdivision provides: “A participant in the perpetration or attempted 

perpetration of a felony listed in subdivision (a) in which a death occurs is 

liable for murder only if one of the following is proven: [¶] (1) The person was 

the actual killer. [¶] (2) The person was not the actual killer, but, with the 

intent to kill, aided, abetted, counseled, commanded, induced, solicited, 

requested, or assisted the actual killer in the commission of murder in the 

first degree. [¶] (3) The person was a major participant in the underlying 

felony and acted with reckless indifference to human life, as described in 

subdivision (d) of Section 190.2.” (§ 189, subd. (e), italics added.) 

Section 1170.95 permits defendants convicted of murder to seek 

retroactive relief if changes in the law made by Senate Bill 1437 would affect 

their previously sustained convictions. Such is not the case here. 

The trial court correctly determined defendant was ineligible for relief 

as a matter of law because he was the actual killer. We further note in 

defendant’s prior appeal of his conviction, he did not raise the issue of 

insufficiency of the evidence. Section 1170.95 relief is not available for a 

defendant who personally commits murder. (See People v. Cornelius (2020) 

44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.) Accordingly, 

we conclude defendant is not entitled to sentencing relief pursuant to 

section 1170.95. 

Having independently reviewed the record, we conclude there are no 

reasonably arguable issues requiring further review. We thus affirm the 

order denying defendant’s resentencing petition. 
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DISPOSITION

The order denying the section 1170.95 petition is affirmed. 
9

MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A159163

People v. Olivas