Filed 10/27/26 P. v. Pina CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B348765
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. XCNA352024)
DANIEL MICHAEL PINA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry A. Bork, Judge. Affirmed.
The Mines Law Firm and Jasmine Mines for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.
____________________________
Penal Code1 section 1172.6 authorizes a trial court to
resentence a defendant who was convicted of murder if the
prosecution fails to prove beyond a reasonable doubt that the
defendant is guilty of that offense under our state’s law “as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (See § 1172.6, subds. (a), (d)(1), & (d)(3).)
Here, defendant Daniel Michael Pina, who had pleaded guilty to
second degree murder at the age of 20 in 1980, petitioned for
resentencing under section 1172.6. At the evidentiary hearing on
his petition, the prosecution presented the preliminary hearing
transcript in which an eyewitness identified Pina as the
individual who stabbed the victim in the chest, along with the
transcript of Pina’s plea hearing in which he admitted to stabbing
the victim. The trial court denied the petition based on its
finding that Pina personally killed the victim with the specific
intent to do so.
On appeal, Pina argues, inter alia, that his guilty plea does
not support the trial court’s denial of his petition because the plea
was not knowing, voluntary, and intelligent; the deferential
substantial evidence standard is inapplicable because no
witnesses testified at the evidentiary hearing; and the
eyewitness’s preliminary hearing testimony was unreliable and
uncorroborated. Assuming arguendo Pina’s section 1172.6
petition is a proper vehicle by which he may challenge his guilty
plea, he has not shown the plea was invalid. Further, we agree
with our sister Courts of Appeal that the substantial evidence
standard governs our review notwithstanding the absence of live
witness testimony. Applying that deferential standard here, we
1 Undesignated statutory citations are to the Penal Code.
2
reject Pina’s challenges to the eyewitness’s testimony. Pina’s
remaining claims of error are either unpersuasive or have been
forfeited. Finding no error, we affirm the denial of Pina’s
petition.
PROCEDURAL BACKGROUND2
We summarize only those facts pertinent to our disposition
of this appeal. We describe additional facts relevant to our
analysis in our Discussion, post.
On August 22, 1979, the People filed an information
charging Pina with the murder of Frank Ramirez, in violation of
section 187 (count 1), and the robbery of Ramirez, in violation of
section 211 (count 2). The People further alleged, inter alia, that
Pina committed the murder “during the commission and
attempted commission of a robbery in violation of [s]ection 211,”
which was a special circumstance permitting imposition of the
death penalty.
On January 3, 1980, Pina pleaded guilty to second degree
murder. On March 13, 1980, the trial court dismissed count 2
and the special circumstance allegation for count 1, and
sentenced Pina to a prison term of 15 years to life on count 1.
In 2022, Pina filed a petition for resentencing pursuant to
section 1172.6. The trial court later issued an order to show
cause.
2 We derive our Procedural Background in part from
admissions in the parties’ briefing and assertions made by the
Attorney General that Pina does not dispute in his reply brief.
(In re Lynex (2026) 118 Cal.App.5th 756, 764, fn. 3 (Lynex)
[utilizing this approach].)
3
On August 19, 2025, the trial court held an evidentiary
hearing on the petition. The People presented the transcripts of
Pina’s (1) preliminary hearing, (2) plea hearing, and (3)
sentencing hearing. The defense submitted two photographs in
support of Pina’s petition. The court denied the petition based on
its finding that Pina was the actual killer who acted with the
specific intent to kill.3
Pina timely appealed from the denial of his section 1172.6
petition.
APPLICABLE LAW AND STANDARDS OF REVIEW
A. Section 1172.6
“Effective January 1, 2019, the Legislature passed Senate
Bill [No.] 1437 ‘to amend the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, to
ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.’[4] [Citation.] In addition to
3 The judicial officer who denied Pina’s resentencing
petition was not the trial judge who accepted Pina’s guilty plea
and sentenced him.
4 The Attorney General acknowledges that a defendant
who actually killed the victim and was “convicted of murder
under the now-invalid second degree felony murder theory” may
be entitled to relief under section 1172.6. The Attorney General
maintains, however, this “limited exception” to the general rule
that “an actual killer [is] ineligible for relief” is inapplicable
because Pina “pled to second degree ‘malice aforethought
murder’ ” and Pina “was never subject to prosecution for second
degree felony murder . . . .” By failing to dispute this point in his
4
substantively amending sections 188 and 189 of the Penal Code,
Senate Bill [No.] 1437 added section [1172.65], which provides a
procedure for convicted murderers who could not be convicted
under the law as amended to retroactively seek relief.” (People v.
Lewis (2021) 11 Cal.5th 952, 959.)
Under section 1172.6, a defendant convicted of murder may
petition to have the conviction “vacated and . . . be resentenced on
any remaining counts . . . .” (See § 1172.6, subd. (a).) “ ‘If the
[defendant] makes a prima facie showing that [he or she] is
entitled to relief, the court shall issue an order to show cause’
[citation] and ‘shall hold a hearing to determine whether to
vacate the murder . . . conviction and to recall the sentence and
resentence the [defendant] . . . .’ [citation].” (See People v. Davis
(2024) 107 Cal.App.5th 500, 508–509 (Davis), quoting § 1172.6,
subds. (c) & (d)(1).)
“At the hearing to determine whether the [defendant] is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the [defendant] is
guilty of murder . . . under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019.
reply brief, Pina tacitly concedes he was not convicted under a
second degree felony murder theory. (See Reygoza v. Superior
Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in
which the Court of Appeal assumed that an assertion made by
the respondent was correct because the “defendant did not
dispute [the] respondent’s claim in his reply”].)
5 This provision “was initially enacted at section 1170.95,
and later renumbered as section 1172.6, effective June 30, 2022
[citation].” (See People v. Diaz (2026) 118 Cal.App.5th 545, 549,
fn. 1 (Diaz).)
5
The admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. . . . If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the [defendant] shall be
resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)
B. Standards of Review
“ ‘[W]hen the issue [on review] . . . is purely legal, such as
the proper interpretation and application of a statute or
constitutional provision, our review is de novo.’ [Citation.]”
(Lynex, supra, 118 Cal.App.5th at p. 766.)
Conversely, “we [ordinarily] review the trial court’s factual
findings following a section 1172.6, subdivision (d)(3) evidentiary
hearing for substantial evidence.” (See Diaz, supra,
118 Cal.App.5th at p. 557.) In reviewing a challenge to the
sufficiency of the evidence, we examine the “ ‘ “ ‘record in the
light most favorable to the judgment’ ” to determine whether it
discloses substantial evidence — “ ‘evidence that is reasonable,
credible, and of solid value’ ” — “ ‘from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’ ”
[Citation.]’ . . . . [Citation.]” (People v. Barrett (2025) 17 Cal.5th
897, 964.) We “ ‘ “ ‘presume[ ] in support of the judgment [or
order] the existence of every fact the jury could reasonably have
deduced from the evidence[ ]’ ” [citation]’ ” and do not “ ‘resolve
credibility issues or evidentiary conflicts’ ” or “ ‘inquire whether
the evidence might “ ‘ “ ‘be reasonably reconciled with the
defendant’s innocence.’ ” ’ ” [Citation.]’ . . . [Citation.]” (See ibid.)
6
Under the substantial evidence standard, “we must begin with
the presumption that the evidence . . . was sufficient” to support
the trial court’s findings, “and the defendant bears the burden of
convincing us otherwise.” (See People v. Sanghera (2006)
139 Cal.App.4th 1567, 1573–1574 (Sanghera).)
Pina argues, “Where, as here, the trial court ruled at the
evidentiary hearing on a cold record, with no live testimony, this
Court reviews the same paper record the trial court reviewed and
may exercise independent judgment on whether the prosecution
carried its burden beyond a reasonable doubt.” (Citing People v.
Vivar (2021) 11 Cal.5th 510, 528.)
“[A]ppellate courts that have considered this
[interpretation of Vivar] have uniformly rejected it . . . .” (See
People v. Underwood (2024) 99 Cal.App.5th 303, 313–314
(Underwood) [collecting cases].) Vivar “ ‘endorsed an
independent standard of review when evaluating a trial court’s
decision under section 1473.7 regarding whether to vacate a
conviction due to negative immigration consequences[,]’ ” which
analysis is “ ‘analogous [to the] prejudice determinations in
ineffective assistance of counsel claims’ ” that are “ ‘reviewed
independently as predominantly legal questions[.]’ ” (See People
v. Njoku (2023) 95 Cal.App.5th 27, 41–42.) In contrast, “a trial
court’s decision denying a petition under section 1172.6 following
an evidentiary hearing is predominantly a question of fact.
[Citation.] Where the trial court’s decision on review is
predominantly a question of fact, the appellate court reviews the
record for substantial evidence.” (See Underwood, supra, at
p. 314.)
We follow our colleagues’ approach and apply the
substantial evidence standard to the trial court’s factual findings.
7
(See Cruz v. Tapestry, Inc. (2025) 113 Cal.App.5th 943, 956
[“ ‘ “[W]e ordinarily follow the decisions of other districts [of our
state’s court of appeal] without good reason to disagree.” ’ ”].)
Additionally, “ ‘[r]egardless of the applicable standard of
review[,]’ ” “ ‘ “ ‘ “it is . . . [Pina’s] responsibility to affirmatively
demonstrate error’ ” ’ by “ ‘ “supply[ing] the reviewing court with
some cogent argument supported by legal analysis and citation to
the record.” ’ [Citation.]” [Citations.]’ . . . [Citation.]” (See County
of Los Angeles v. Niblett (2025) 116 Cal.App.5th 454, 463
(Niblett); see also Sanghera, supra, 139 Cal.App.4th at p. 1573
[“[T]he judgment challenged on appeal is presumed correct, and it
is the appellant’s burden to affirmatively demonstrate error.”].)
DISCUSSION
We reject Pina’s challenges to the trial court’s order
denying his section 1172.6 petition. First, he does not establish
his guilty plea was invalid. (Discussion, part A, post.) Pina also
does not show that the court failed to consider his youth and
purported cognitive defects (Discussion, part B, post), or that a
preliminary hearing transcript is, as a matter of law, insufficient
to sustain a finding after an evidentiary hearing that a defendant
is not entitled to resentencing under section 1172.6 (Discussion,
part C, post). We conclude substantial evidence supports the trial
court’s finding Pina actually killed Ramirez with the specific
intent to do so. (Discussion, part D, post.) Lastly, we reject
Pina’s contention the Supreme Court’s decision in People v.
Morris (2026) 19 Cal.5th 671 (Morris) undermines the trial
court’s ruling (Discussion, part E, post), and Pina forfeits
8
arguments he raises in his reply but not in his opening brief
(Discussion, part F, post).6
A. Pina Fails To Demonstrate His Guilty Plea Was Not
Knowing, Voluntary, and Intelligent
“A defendant’s guilty plea must be knowing, intelligent,
and voluntary.” (People v. Aguirre (2011) 199 Cal.App.4th 525,
528.) Pina argues his guilty plea did not satisfy this standard
because “the plea . . . bears hallmarks of duress and incapacity.”
Pina maintains he “was 19 years old[,7] . . . . had documented low
intellectual functioning[,] . . . . was facing the death penalty[,
and] was represented by counsel who, according to the record
before the trial court, did not investigate, did not interview
witnesses, and did not pursue available defenses such as
diminished capacity or intoxication.” Pina also claims to have
“told the probation officer” “[i]mmediately after the plea” that
6 Given these conclusions, we do not address the Attorney
General’s contention the trial court should have denied the
petition without issuing an order to show cause.
7 Pina cites an excerpt from the probation report for the
proposition he was 19 years old when he pleaded guilty. In fact,
the excerpt Pina cites reveals he was born in June 1959, meaning
he was 20 years old on the date of the murder and when he
entered his guilty plea. (See Procedural Background, ante
[noting that Pina pleaded guilty on Jan. 3, 1980]; Discussion,
part D, post [noting an eyewitness testified at the preliminary
hearing that the stabbing occurred on July 3, 1979].) We assume
solely for the purposes of this appeal that Pina is correct in
suggesting that the trial court could consider the contents of the
probation report at the evidentiary hearing on Pina’s
section 1172.6 petition.
9
Pina “was innocent and had pled only out of fear of execution.”
Assuming arguendo Pina may challenge the validity of his guilty
plea at a section 1172.6 evidentiary hearing, we conclude he fails
to demonstrate his plea was not knowing, voluntary, and
intelligent.8
Our high court has held that a defendant is competent to
plead guilty if that person is competent to stand trial. (See
People v. Wharton (1991) 53 Cal.3d 522, 584.) Under that
standard, the defendant must have “ ‘ “ ‘sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding . . . [and] a rational as well as factual
understanding of the proceedings against him.’ ” ’ [Citation.]”
(See People v. Buenrostro (2018) 6 Cal.5th 367, 386.) That Pina
was 20 years of age when he pleaded guilty does not establish his
incompetence under this standard.
Next, the sole basis for Pina’s assertion that he had
“documented low intellectual functioning” is an excerpt from the
probation report showing he left school at approximately age 16
and he had an “approx[imately] 10th grade” education level.
(Capitalization omitted.) A defendant does not have to complete
high school to be competent to stand trial.
Additionally, to the extent Pina asserts his trial counsel’s
supposed failure to investigate the case adequately and pursue
“available defenses” invalidates his guilty plea, that claim fails
because Pina does not support it with any citation to the record.
8 The Attorney General argues Pina’s “challenge to the
validity of his plea” “is not cognizable in a section 1172.6
proceeding.” Indeed, we doubt whether the statute authorizes a
defendant to contest the validity of a guilty plea. In any event,
we need not decide that question to resolve the instant appeal.
10
(See People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17
[noting that an appellate court may “ ‘decline to consider any
factual assertion unsupported by record citation at the point
where it is asserted[,]’ ” and that “ ‘[a]n appellate court “will not
develop . . . appellants’ arguments for them” ’ ”].)
Pina’s claim of duress fares no better. We acknowledge the
prosecutor indicated at the plea hearing that Pina had been
charged with “special circumstances mandating the death
penalty,” and that the probation report prepared after that
hearing indicates Pina stated “he was not guilty and pleaded
guilty only because he was offered a ‘deal’ and had ‘no defense’ ”
(capitalization omitted from second quotation). These facts fall
short of establishing duress. (See People v. Huricks (1995)
32 Cal.App.4th 1201, 1208 [indicating that a finding of duress
requires evidence the defendant’s “free will was overcome in
entering the plea” and not simply that he was subjected to the
same “pressure [experienced by] every other defendant faced with
serious felony charges and the offer of a plea bargain”].) We
further note Pina does not cite any authority establishing that
the mere presence of a death penalty charge constitutes duress
invalidating a guilty plea.
In sum, we reject Pina’s contention his guilty plea was not
knowing, voluntary, and intelligent.
B. Pina Has Not Shown the Trial Court Failed To
Consider Pina’s Youth and Alleged Intellectual
Deficits In Ruling on the Petition
Pina argues, “The trial court failed to meaningfully
consider . . . Pina’s youth and documented cognitive limitations.”
(Boldface & some capitalization omitted.) At the evidentiary
hearing, Pina contended his petition should be granted because,
11
among other things, (1) he was 19 when he committed the offense
and entered his guilty plea and (2) he “has documented low
intellectual ability.”9 On appeal, Pina claims pages 2416 to 2417
of volume 9 of the reporter’s transcript show that “the trial court
treated these factors as irrelevant.” (Boldface, italics, &
capitalization omitted.)
Pages 2416 to 2417 of volume 9 of the reporter’s transcript
do not show the trial court ignored Pina’s arguments; instead,
this excerpt shows the court welcomed additional arguments
from Pina’s counsel. Specifically, the excerpt reveals: (1) the
prosecutor raised several arguments, including the prosecutor’s
assertion that Pina’s youthfulness did not prevent him from
forming the intent to kill; (2) the trial court thanked the
prosecutor and invited Pina’s counsel to provide “any further
thoughts [the attorney] may have”; and (3) Pina’s attorney
thereafter made several arguments, including counsel’s assertion
that the report contains no police reports. Accordingly, Pina fails
to overcome the presumption that the trial court did in fact
consider whether his youth and purported cognitive restrictions
warranted resentencing relief under section 1172.6. (See Davis,
supra, 107 Cal.App.5th at pp. 511–512 [noting that the trial court
is “not required to describe every piece of evidence in making its
ruling” under § 1172.6, an appellate court “will not presume the
court failed to consider the evidence presented,” and “ ‘[a]s a
general rule, “ ‘a trial court is presumed to have been aware of
and followed the applicable law’ ” ’ ”].)
9 As we noted in our Discussion, part A, ante, Pina has
shown that he was 20 on the dates of the stabbing and the plea
hearing, respectively, and that he ceased attending school at
around age 16.
12
C. We Reject Pina’s Argument the Preliminary Hearing
Transcript Is, As a Matter of Law, Insufficient To
Meet the People’s Burden at an Evidentiary Hearing
Pina argues, “Decisional authority confirms that reliance
on a cold, untested preliminary hearing transcript is insufficient”
to discharge the People’s burden of proof at the evidentiary
hearing. (Boldface, italics, & some capitalization omitted.)10
In particular, Pina argues, “In People v. Pickett (2023)
93 Cal.App.5th 982, the Court of Appeal held that, at the prima
facie stage, reliance on contested preliminary hearing testimony
to defeat eligibility constitutes impermissible factfinding. While
Pickett addressed the prima facie inquiry, its logic extends to the
evidentiary hearing where the burden is even higher. If a court
cannot resolve credibility issues against a defendant at the prima
facie stage based on a cold preliminary hearing transcript, the
10 Pina further argues that because he did not stipulate
that the preliminary hearing transcript was the factual basis for
his guilty plea, that “transcript stands as ordinary documentary
evidence, and the rules of evidence and the burden of proof
apply.” Pina does not clarify whether he is contesting the
admissibility of the preliminary hearing transcript at the
evidentiary hearing. The Attorney General likewise notes, “It is
unclear what [Pina] is trying to convey in this argument.” We
thus decline to address it. (See People v. Evans (2011) 200
Cal.App.4th 735, 756, fn. 12 [declining to address an argument
that a party failed to support adequately]; Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles (2023)
94 Cal.App.5th 764, 792 [“ ‘We do not serve as “backup appellate
counsel,” or make the parties’ arguments for them.’ ”].)
13
same transcript cannot, standing alone, prove guilt beyond a
reasonable doubt.”11
Pina misapprehends the purpose of a section 1172.6
evidentiary hearing. Whereas the prima facie inquiry is designed
to determine whether “undisputed facts in the record” “refut[e]
the allegations in the petition” such that there would be no need
to “ ‘proceed to an evidentiary hearing’ ” (see People v. Prak
(2026) 121 Cal.App.5th 1040, 1049), the trial court at the
evidentiary hearing “ ‘act[s] as an independent fact finder[ ] to
determine beyond a reasonable doubt whether defendant is guilty
of murder under a valid theory of murder[ ]’ [citations]” (see
Underwood, supra, 99 Cal.App.5th at pp. 311–312). Put
differently, the fact that a trial court may not resolve factual
disputes arising from a preliminary hearing transcript at the
prima facie stage does not preclude the court from doing so at a
subsequent evidentiary hearing.
Lastly, Pina cites In re Lopez (2023) 14 Cal.5th 562 for the
proposition that “the section 1172.6 procedure exists to ensure
that murder convictions rest on currently valid theories
11 We note that after Pickett was decided, our high court
held, “[A] court, in determining at the prima facie stage whether
a petitioner was convicted under a now-invalid theory, [is
permitted to] rely on unchallenged, relief-foreclosing facts within
a preliminary hearing transcript to refute conclusory, checkbox
allegations” in a preprinted form declaration filed in support of a
section 1172.6 petition. (See People v. Patton (2025) 17 Cal.5th
549, 563–564.) In arriving at this conclusion, the Patton court
explained, “The extent to which it might be proper to rely on a
preliminary hearing transcript at the evidentiary hearing under
section 1172.6, subdivision (d) is not before us.” (Patton, supra,
at p. 569, fn. 11, italics added.)
14
supported by current evidence, not on the formalisms of old pleas
or old findings.” The page from Lopez that Pina cites, however,
simply enumerates certain general principles that govern murder
liability. (See Lopez, supra, at p. 579 [explaining, inter alia, that
an aider and abettor may no longer be convicted of first degree
premeditated murder under the natural and probable
consequences doctrine].) Additionally, Lopez did not concern a
section 1172.6 petition, but instead involved a defendant’s habeas
petition. (See Lopez, at pp. 567–568.) Because Pina fails to
explain why he believes Lopez nonetheless establishes that a
preliminary hearing transcript cannot sustain the People’s
burden at a section 1172.6 evidentiary hearing, we do not address
that matter further. (See Niblett, supra, 116 Cal.App.5th at
p. 466 [“ ‘ “[A]n appellant is required to not only cite to valid legal
authority, but also explain how it applies in his case.” ’ ”].)
D. Substantial Evidence Supports the Trial Court’s
Denial of Pina’s Section 1172.6 Petition
At the evidentiary hearing, the trial court found beyond a
reasonable doubt that Pina was the “actual killer” and Pina had
the “specific intent to kill.” Indeed, the preliminary hearing
transcript reveals Bryan K. testified that on July 3, 1979, he
(1) heard Pina or Pina’s accomplice demand Ramirez’s wallet and
(2) observed Pina stab Ramirez two or three times in the chest
with a knife while Pina’s accomplice held Ramirez’s left arm.12
The transcript also reproduces, verbatim, an autopsy report
prepared by the coroner, which “ascribe[s Ramirez’s] death to[ ]
12 We refer to the eyewitness who testified at the
preliminary hearing by first name and last initial to protect his
privacy. (See Cal. Rules of Court, rule 8.90(b)(10).)
15
[¶] . . . multiple stab wounds to [the] chest.” (Some capitalization
omitted.)13 Additionally, the transcript from Pina’s plea hearing
shows: (1) Pina answered in the affirmative when the prosecutor
asked whether (a) Pina “did with malice aforethought murder . . .
Ramirez” and (b) Pina “stab[bed] . . . Ramirez following [a] PCP
transaction”; and (2) Pina pleaded guilty to second degree murder
as charged in count 1 of the information.
The trial court reasonably could have inferred from the
preliminary hearing and plea hearing transcripts that Pina killed
Ramirez by stabbing him in the chest. The court also reasonably
could have deduced from the nature of the stabbing as described
by Bryan K. at the preliminary hearing (i.e., Pina stabbed
Ramirez two to three times in the chest) and from Pina’s
admissions at the plea hearing that Pina intended to kill Ramirez
when Pina stabbed him. (See People v. Rodriguez (2024)
103 Cal.App.5th 451, 458 [holding that a guilty plea is a judicial
admission that a trial court may consider at a § 1172.6
evidentiary hearing]; see also 4 Witkin, Cal. Crim. Law 5th (5th
ed. 2026) Pretrial, § 343 [“A guilty plea is an admission of every
element of the offense charged . . . .”].) Accordingly, substantial
evidence supports the trial court’s finding that Pina was
ineligible for relief under section 1172.6 as the actual killer who
acted with the intent to kill his victim.
Pina counters that Bryan K.’s testimony was “inherently
unreliable” because Bryan and Ramirez went to the location
where Ramirez was later stabbed to buy PCP, Bryan had been
drinking beer earlier that day, he was blind in one eye, and he
13 Pina does not argue the transcription of the autopsy
report included in the preliminary hearing transcript was
inadmissible at the evidentiary hearing.
16
“made his observations from the second story of an adjacent
apartment complex through a window.” Pina also argues that
because reports documenting Bryan’s interviews with the police
were not admitted, “[w]e cannot know whether [he] . . . initially
failed to identify . . . Pina, whether he picked someone else,
whether the lineup procedures were unduly suggestive, or
whether his identification was the product of police suggestion
rather than memory.” Further, Pina maintains Bryan’s
identification of Pina as the killer is “uncorroborated” by other
evidence such as witness statements, forensic evidence, or police
reports.
In asserting that Bryan K.’s testimony is uncorroborated,
Pina overlooks (1) his admissions at the plea hearing to stabbing
Ramirez and perpetrating second degree murder, and (2) the
autopsy report showing Ramirez died from multiple stab wounds
to the chest. Pina also ignores Bryan’s preliminary hearing
testimony that (1) Bryan jumped out of the window to try to save
Ramirez, (2) Pina’s accomplice then fought with Bryan, and
(3) Pina chased after Bryan with a knife. A rational factfinder
could have inferred from this evidence that Bryan got close
enough to Pina to determine that Pina was still holding a knife
after he stabbed Ramirez.
More fundamentally, Pina’s challenges to the reliability
and credibility of Bryan K.’s testimony fail under the deferential
substantial evidence standard. This is because “ ‘ “[c]onflicts and
even testimony [that] is subject to justifiable suspicion do not
justify the reversal of a judgment [or order], for it is the exclusive
province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a
determination depends. [Citation.]” ’ . . . [Citation.]” (See Davis,
17
supra, 107 Cal.App.5th at pp. 509–510.) Pina thus fails to
demonstrate the absence of substantial evidence supporting the
trial court’s denial of his resentencing petition.
E. Morris Does Not Undermine the Trial Court’s Order
Denying the Petition
In Morris, supra, 19 Cal.5th 671, our Supreme Court held
that under section 189, subdivision (e)(2), a defendant is liable
under the felony murder rule only if the People prove “the
defendant aided or abetted the actual killer in the lethal act
itself, and not just the underlying felony.” (See Morris, supra, at
pp. 677–678.)
Section 189, subdivision (e)(2) governs liability for murder
in the first degree. (See § 189, subds. (a) & (e)(2).) Pina pleaded
guilty to second — and not first — degree murder. (Procedural
Background, ante.) In any event, Pina argues, “Morris requires
reversal because the People failed to prove who committed the
lethal act.” (Boldface & some capitalization omitted.) That
argument fails for the reasons set forth in Discussion, part D,
ante. Pina’s reliance on Morris is thus unavailing.
F. Pina Forfeits Arguments He Raises in His Reply But
Omits from His Opening Brief
In his reply, Pina raises multiple arguments that do not
appear in his opening brief. Specifically, he contends: (1) the
defense attorney who advised Pina to plead guilty told Pina that
(a) intoxication was not a viable defense to the murder charge,
(b) Pina “face[d] execution if he reject[ed] the bargain, and . . .
[(c)] it does not matter who committed the physical act [that
killed Ramirez] because all participants are ‘equally guilty’ ”;
(2) although the probation report indicates witnesses other than
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Bryan K. “ ‘provided identifying information regarding the
suspect[,]’ ” “no reports exist as to what the ‘other witnesses’
repeatedly referenced in the probation report did or did not
witness”; (3) the trial judge who accepted Pina’s guilty plea and
sentenced him to 15 years to life in prison violated Pina’s right to
due process “[b]y proceeding to sentence [Pina] without
addressing or resolving the glaring disparity” between (a) the
guilty plea and (b) Pina’s statement to a probation officer that he
was not guilty; (4) “the near total absence of” the “master
investigative file” for the homicide prosecution (i.e., the “ ‘murder
book’ ”) “renders the evidentiary record legally insufficient to
sustain the prosecution’s heavy burden” (boldface & some
capitalization omitted from first and third quotations); (5) the
trial court’s “uncritical reading of [the] cold record . . . fails the
basic thresholds of reliability established by People v. Delgado
(2008) 43 Cal.4th 1059”; and (6) Bryan K.’s “claim of jumping out
of an extremely small window that photographic evidence shows
had bars affixed to them was unsupported by any investigative
reports . . . .”
None of these arguments appears in the opening brief. By
withholding these contentions from his opening brief, Pina
forfeited them. (See Niblett, supra, 116 Cal.App.5th at pp. 477–
478.)
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DISPOSITION
We affirm the trial court’s order denying defendant
Daniel Michael Pina’s petition for resentencing under Penal Code
section 1172.6.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
WEINGART, J.
M. KIM, J.
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