People v. Maldonado CA2/8

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305685
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A593783)
v.
RUBEN DINO MALDONADO,
Defendant and Appellant.
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.
**********
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
2
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
3
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.
4
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
5
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.
6