Filed 9/23/26 P. v. Ojito CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
D085430
Plaintiff and Respondent,
(Super. Ct. No. SCD169261)
v.

GERALDO OJITO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Yvonne Esperanza Campos, Judge. Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General,
for Plaintiff and Respondent.
 INTRODUCTION
Geraldo Ojito was convicted of first degree murder with a firearm
enhancement and sentenced to serve 26 years to life in state prison. He

appeals from the denial of his petition for resentencing under Penal Code1
section 1172.6. He claims (1) the evidence that he aided and abetted the
murder was insubstantial, and (2) the court assessed the merits of his
petition under an incorrect legal theory. He asks us to reverse the court’s
order denying his petition. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND2
I.
First Degree Murder Conviction
On June 14, 2006, a San Diego County jury convicted Ojito of (1) first
degree murder (§ 187, subd. (a); count 1) with an enhancement for being
vicariously armed with a firearm (§ 12022, subd. (a)(1)), and (2) being an
accessory after the fact (§ 32; count 2). The jury also convicted one of Ojito’s
co-defendants, Pedro Garcia, of first degree murder with an enhancement for
personally discharging a firearm causing death. (Garcia, supra,
168 Cal.App.4th at p. 269.) The jury acquitted Ojito’s second co-defendant,
Mario O., of all charges. (Id. at p. 269, fn. 2.) The trial court sentenced Ojito

1 Undesignated statutory references are to the Penal Code.
2 On October 21, 2025, Ojito asked us to take judicial notice of the
reporter’s transcript from the direct appeal of his original conviction,
People v. Garcia (2008) 168 Cal.App.4th 261 (Garcia). The transcripts were
admitted into evidence at the resentencing hearing. We grant Ojito’s
unopposed request pursuant to Evidence Code sections 452, subdivision (d),
and 459.
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to 26 years to life in state prison. We affirmed the judgment on direct appeal.
(Garcia, supra, 168 Cal.App.4th 261.)
II.

Trial Record3
According to the testimony and evidence adduced at trial, “Ojito and
Garcia were the founding members of a tagging crew that evolved into a gang
known as TNS (Trust No Souls). Victim Manuel Barajas (also known as
. . . Manny) was a member or former member of another tagging crew that
had become a documented gang known as ALS (Another Logan Soldier).

“On the afternoon of August 11, 2002, Barajas,4 his long-time friends
[J.G.] . . . and [J.F.] . . . and [J.F.’s] four-year-old son Javier stopped at the
Gigante Market on 32nd Street and National Avenue in southeast San Diego
to buy carne asada for a picnic at the beach. When they exited [J.G.’s] truck
in the parking lot, . . . Garcia approached them from across the street. Garcia
and Barajas, who had fought previously, agreed to a one-on-one fight and
walked into the alley behind the market.
“A few minutes later, [J.G.], [J.F.], and Javier walked toward the alley
and met Barajas coming out of the alley. They saw Garcia on the ground
trying to stand up. Barajas told them he had knocked out Garcia with one

3 For convenience, our summary of the trial record quotes directly from
the relevant portions of our opinion in Ojito’s prior appeal, Garcia, supra,
168 Cal.App.4th 261. In compliance with section 1172.6, subdivision (d)(3),
we have conducted an independent review of the relevant portions of the
record, and we do not rely on our prior appellate opinion for the factual
findings necessary to resolve the issues presented here.
4 We have updated the prior opinion’s use of first names, last names,
nicknames, and initials to better conform with California Rules of Court,
rule 8.90, which “provides guidance on the use of names in appellate court
opinions” in order to “protect personal privacy interests.”
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punch. The group then entered the market to buy their groceries for the
beach. [J.F.] pointed out that Barajas had blood on his shirt, so Barajas left
the store and went home to change his shirt. Barajas lived with his sister
and brother-in-law in a house on the 3200 block of Logan Avenue around the
corner from the market.
“After they bought their groceries, [J.G.], [J.F.], and Javier got into
[J.G.’s] truck and [J.G.] drove toward Barajas’s house. As they passed the
alley between National Avenue and Logan Avenue to the north, they saw a
group of four to eight Hispanic males run out of the alley toward the market.
One of the males raised a hand and gestured or pointed toward the truck.
[J.G.] drove past Barajas’s house without stopping to pick up Barajas as
planned because he did not want to bring trouble to the house. Instead, he
turned right on 33rd Street, drove one block south to National Avenue,
turned right on National Avenue (westbound) and drove two blocks to
31st Street, turned right on 31st Street and then right from 31st Street back
onto Logan Avenue (eastbound), and parked in the middle of the 3100 block
of Logan Avenue. [J.G.], [J.F.], and Javier then exited the truck and walked
east on Logan toward Barajas’s house. [J.F.] was carrying a car club
(steering wheel locking device) he took from the truck.
“Meanwhile, a group of Hispanic males that included Ojito’s older
brother Mario . . . confronted residents of Gary [R.’s] home on the 3100 block
of Logan, demanding to know where ‘Manny’ was. [Gary] told them there
was no Manny living there and asked them to leave his property.
“Some or all of the group, including [Mario], then went to Barajas’s
house on the 3200 block of Logan and confronted Barajas’s brother-in-law
Angel [Z.], who was in his front yard with his two-year-old daughter. [Mario]
challenged [Angel], saying, ‘What’s up mother-fucker? You want some of this

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shit too, or what?’ At some point, Barajas came out of the house onto the
front porch and Ojito joined the group. [Mario] said to Barajas, ‘What’s up
fool? Come out here, punk. Come outside fool.’ A minute or two later,
Garcia’s cousin Favio [G.] . . . rode up on a bicycle and joined the group. He
yelled at Barajas, ‘You jumped my cousin, fool!’ Barajas responded, ‘I didn’t
jump nobody, fool. I beat his ass.’ [Favio] then pulled a handgun from his
midsection, pointed it at Barajas, and pulled the trigger, but the gun did not
fire. He lowered the gun and looked at it, pointed it at Barajas and pulled
the trigger a second time, and the gun again failed to fire.
“The group left [Angel’s] property and [Angel] took his daughter into
the house and locked the front door, leaving Barajas outside. A few minutes
later, [Angel] put his son and daughter in his car and drove [westbound] on
Logan Avenue. As he drove away, he saw Barajas standing on the corner of
Logan and 32nd Street with a neighbor.
“When [J.G.], [J.F.], and Javier exited [J.G.’s] truck and started
walking toward Barajas’s house, they saw Barajas on the corner of 32nd
Street and Logan walking toward them. Barajas met them near the corner
and they all began to walk westbound toward [J.G.’s] truck while Barajas
told them about the incident that had just occurred at his house.
“Before they reached the truck, Garcia and Ojito confronted them on
the sidewalk. Garcia was wearing a backpack on his chest and had his hand
in the backpack. [J.F.] brandished the car club he took from [J.G.’s] truck
and told Ojito and Garcia to ‘back the fuck up’ because his son was with him.
Moments later, a red car driven by Yovani [P.] stopped at the scene of the
confrontation. [Mario] and Ojito’s younger brother, Victor [R.], immediately
exited the car and joined Ojito and Garcia. [Yovani] also joined the group

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after pulling his car to the curb.” (Garcia, supra, 168 Cal.App.4th at pp. 268–
270, fns. omitted.)
“At the scene, Garcia was holding a white, blood-stained shirt over his
right temporal, forehead area, and had a large lump on that area of his head.
He appeared to be dazed and dizzy. Ojito, [Mario], and Garcia accused [J.F.],
[J.G.], and Barajas of jumping Garcia, and Ojito asked what Garcia had been
hit with. [J.F.], [J.G.], and Barajas replied that nobody had jumped Garcia.
[J.G.] and [J.F.] told Garcia to ‘take an ass whooping like a man.’ Garcia
responded ‘Fuck that shit, fuck that shit.’ He started to pull a gun out of his
backpack and [J.G.] told him, ‘Put that thing away.’ He responded, ‘It’s put
away[,]’ but he kept his hand in the backpack.
“[Mario] mainly confronted [J.F.], standing almost chest-to-chest in
front of him. [J.F.] attempted to put Javier in an adjacent fenced-in yard, but
[Mario] prevented him from doing so. [J.F.] told [Mario], ‘Back the fuck up off
me. Don’t you see my son next to me?’ Ojito, who was standing next to
Garcia, leaned toward Garcia and whispered something to him. Then Ojito
and Garcia told Barajas he had ‘better run.’ Barajas started running
westbound and Garcia took the handgun out of his backpack and fired it at
Barajas. Barajas jumped over a fence into a yard and Garcia and Ojito ran
after him. Garcia fired more shots and Barajas fell in the yard, got up and
ran a few more steps, and then fell again.
“[Yovani], Garcia, and Ojito then ran to [Yovani’s] car and got into the
car, and Ojito told [Yovani] to drive. As [Yovani] drove away from the scene,
Garcia gave the gun to Ojito. Garcia told [Yovani] to drive to a nearby Costco
store to look for a telephone. When they did not find a telephone at the store,
[Yovani] drove toward his house so Garcia and Ojito could use the telephone
there.

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 “Near [Yovani’s] house, police officers in a patrol car made a U-turn
and followed [Yovani’s] car with their overhead lights activated. [Yovani] did
not stop until he drove into his driveway because he did not have a license
and did not want the police to take his car. Before [Yovani] stopped, Ojito
announced he was going to run. When the car stopped, Ojito immediately
jumped out and ran from the scene with the gun.” (Garcia, supra,
168 Cal.App.4th at pp. 270–271, fns. omitted.)
“Ojito was arrested about six weeks later at the home of Jose [R.], . . .
following a stand-off with the San Diego Police Department SWAT team.
“Barajas sustained three gunshot wounds. He died from blood loss
caused by a bullet that entered his back and severed his spinal cord and then
hit a major (portal) vein, adrenal gland, his liver and a rib before coming to
rest under the skin of his chest.” (Garcia, supra, 168 Cal.App.4th at pp. 270–
272, fns. omitted.)
III.
Petition for Resentencing and Evidentiary Hearing
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill No. 1437) “significantly limited the scope of California’s felony-
murder rule and eliminated liability for murder under the natural and
probable consequences doctrine through two key provisions.” (People v.
Berry-Vierwinden (2023) 97 Cal.App.5th 921, 930 (Berry-Vierwinden),
disapproved on other grounds in People v. Lopez (2026) 19 Cal.5th 639;
Stats. 2018, ch. 1015, § 1, subd. (f).) “First, Senate Bill No. 1437 amended
section 189 so that ‘[d]efendants who were neither actual killers nor acted
with the intent to kill can be held liable for [felony] murder only if they were
“major participant[s] in the underlying felony and acted with reckless
indifference to human life[.]” ’ [Citations.] Second, it amended section 188 to

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provide that, when the felony-murder rule does not apply, a principal in the
crime of murder can only be convicted where he or she acted ‘with malice
aforethought,’ and ‘[m]alice shall not be imputed to a person based solely on
his or her participation in a crime.’ ” (Berry-Vierwinden, at p. 930.) “Senate
Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended.”
(See § 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 708.)
In November 2022, Ojito filed a petition to vacate his murder conviction

and resentence him pursuant to section 1172.6.5 The San Diego District
Attorney conceded Ojito was eligible for relief because the jury at his trial
was instructed improperly on a natural and probable consequences theory of
murder that is no longer valid. But the People asserted that relief should be
denied because he was guilty of aiding and abetting Barajas’s murder under
current law. Important here, the jury had not been instructed on a felony-
murder theory of murder, and the People did not contend Ojito was guilty
under a felony-murder theory.
The trial court conducted an evidentiary hearing in October 2024 and
reviewed the record from Ojito’s original trial. Over defense objection, the
court admitted additional evidence proffered by the prosecution that Ojito
had admitted to personally shooting three other rival gang members in

2002.6 After reviewing and considering the evidence presented, the trial
court denied appellant’s petition in December 2024.

5 The petition was brought pursuant to section 1170.95, which is where
the provisions of section 1172.6 were formerly codified.
6 Ojito contends the additional evidence was inadmissible pursuant to
Evidence Code section 1101, subdivision (a). But he does not raise the trial
court’s alleged evidentiary error as a separate appellate issue, nor assert the
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 Important here, the court based its ruling on two separate and
independent legal theories, an aiding and abetting theory and a felony-
murder theory. It is undisputed, however, that the felony-murder theory was
legally irrelevant.
The court’s ruling states, “The key question for the evidentiary hearing
was whether [Ojito] could be convicted of murder under the law after
January 1, 2019. Specifically, (i) was he a principal as an aider an abettor,
despite not being the actual killer? Did he act with the intent to kill aid,
abet, counsel, command, or assist the actual shooter? Or (ii) was he a major
participant in the underlying felony and did he act with reckless indifference
to human life, as per Penal Code [section] 190.2[, subdivision] (d)? The
[People] bore the burden of proof beyond a reasonable doubt to establish
[Ojito’s] guilt [of] first-degree murder, with express or implied malice.”
(Italics added.) The ruling continued, “The evidence clearly shows that
Petitioner acted with intent to kill in aiding and abetting the murder, or as a
major participant who displayed reckless disregard for human life.” The
court specifically found, Ojito 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 first degree murder.” . . .
Although he was not the actual killer [Ojito] intended to kill and assisted the
shooter, which is evident from the circumstances surrounding the incident.

error was prejudicial. As the Attorney General points out, “it is well
established that a reviewing court must consider even improperly admitted
evidence in determining whether there is sufficient evidence to support a
trier of fact’s finding of guilt.” (In re Z.A. (2012) 207 Cal.App.4th 1401, 1425.)
We do not need to address the admissibility of the additional evidence
because we conclude there was substantial evidence to support the trial
court’s ruling with or without it.

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[His] statement to the victim to ‘run’ only served to signal the intended
violence. His actions did not reflect those of someone horrified by the events;
instead they demonstrated the calculated behavior of a co-conspirator.”
DISCUSSION
I.
Substantial Evidence Supports the Trial Court’s Ruling
Ojito contends his resentencing petition should have been granted
because the evidence presented by the prosecution at the evidentiary hearing
was insufficient to support a finding that he aided and abetted Barajas’s
murder under current law. We are not persuaded. At the evidentiary
hearing, the People bore the burden to prove, beyond a reasonable doubt that
Ojito “is guilty of murder or attempted murder under California law as
amended by the changes to [s]ection 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (d)(3).) The evidence here was more than sufficient to
support a finding beyond a reasonable doubt that Ojito aided and abetted the
murder of Barrajas with intent to kill.
A trial court’s denial of a section 1172.6 petition is reviewed for
substantial evidence unless the court misunderstood the elements of the
applicable offense. (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).)
Under this standard, we review the record “in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (Ibid.) “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal
of the judgment.” (People v. Cravens (2012) 53 Cal.4th 500, 508.)

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 Under current law, murder is the unlawful killing of a human being
with malice aforethought. (§ 187, subd. (a).) Malice may be express or
implied. (§ 188, subd. (a).) Malice is express when a person manifests
specific intent to kill. (§ 188, subd. (a)(1).) “ ‘Malice is implied when a person
willfully does an act, the natural and probable consequences of which are
dangerous to human life, and the person knowingly acts with conscious

disregard for the danger to life that the act poses.’ ”7 (People v. Vargas (2022)
84 Cal.App.5th 943, 953.)
Under current law, guilt as an aider and abettor is “based on a
combination of the direct perpetrator’s acts and the aider and abettor’s own
acts and own mental state.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
In particular, “ ‘[a] person aids and abets the commission of a crime if, with
knowledge of the unlawful purpose of the perpetrator or the crime, he aids,
promotes, encourages or instigates by act or advice the commission of such
crime.’ ” (In re Hardy (2007) 41 Cal.4th 977, 1029 (Hardy).) Thus, in the case
of murder, the mens rea required is either (1) a specific intent to kill, or (2)
“knowledge that the perpetrator intended to commit the [dangerous] act,
intent to aid the perpetrator in the commission of the act, knowledge that the
act is dangerous to human life, and acting in conscious disregard for human
life.” (People v. Powell (2021) 63 Cal.App.5th 689, 711–713, italics removed.)
Based on our independent review of the record, the evidence adduced at
the evidentiary hearing was sufficient to support the trial court’s finding

7 Although Ojito was convicted of first degree murder, the People were
not required to prove a specific degree of murder in order to prevail at the
evidentiary hearing. (People v. Gonzalez (2023) 87 Cal.App.5th 869, 880–
881.)

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beyond a reasonable doubt that Ojito “acted with intent to kill” in aid and
abetment of Barajas’s murder. Indeed, it was overwhelming.
Starting with the evidence of shared intent to kill, the evidence easily
supports the inference that Ojito knew that Garcia was armed with a second
gun and was planning a second attempt on Barajas’s life, and that he shared
in his specific intent to kill. Ojito was present at Angel’s house where a failed
murder attempt on Barajas by a fellow gang member took place right in front
of him. Having just witnessed an attempted murder on Barajas’s life, Ojito
followed his fellow gang members to a second confrontation with Barajas on
the sidewalk near the corner of Logan and 32nd Street. He walked to the
second confrontation right beside Garcia, and multiple witnesses testified
that the gun in Garcia’s backpack was sticking out and visible to them. The
obvious inference from this evidence is that Ojito, too, knew that Garcia was
armed and they both intended the second confrontation to be deadly.
Turning to the evidence that Ojito aided and encouraged the murder,
the eyewitness evidence of multiple witnesses depicts sustained and
coordinated action between the two men. Ojito and Garcia were both major
participants in the argument between the two gangs on the sidewalk. After
Garcia took the gun out of his backpack for the first time, and was persuaded
by [J.G.] to put it back, Ojito whispered something in Garcia’s ear a few
seconds later and Garcia took it out again. Together, the two men both told
Barajas, “You better run.” Together, they both followed after Barajas. And
together, they both ran to Yovani’s car and cooperated to flee the scene and
hide the gun. This evidence overwhelmingly supports a finding beyond a
reasonable doubt that Ojito “aid[ed], promote[d], encourage[d] or instigate[d]
by act or advice the commission of [the] crime.” (Hardy, supra, 41 Cal.4th at
p. 1029.)

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 Ojito points to some evidence in the record that indicates he may not
have started running after Barajas until after Garcia started shooting. He
contends this evidence demonstrates that he took no action to participate in
the murder. We disagree. Whether Ojito started following Barajas before or
after Garcia began shooting, multiple witnesses testified that he did, in fact,
follow after him. It is a fair inference that, by following after his fellow gang
member, Ojito stood ready to help track Barajas down and provide back-up in
any physical encounter that took place if needed. Moreover, this asserted
timing of events—that Ojito followed Garcia only after he began shooting—
only strengthens the already overwhelming inference that Ojito knew Garcia
intended to kill Barajas when he followed after him. Substantial evidence
thus supports the trial court’s finding that Ojito shared Garcia’s specific
intent to kill and was therefore an accomplice to the murder of Barajas under
current law.
II.
The Trial Court’s Superfluous Findings of Fact Are Not Grounds for Reversal
As noted, in addition to finding that Ojito acted with specific intent to
kill, the trial court found that he acted as a “major participant” in an
unspecified felony “who displayed reckless disregard for human life.” Ojito is
correct that these findings correspond to findings that must be made under
current law to support a murder conviction pursuant to a felony-murder
theory, a theory that was not pursued here. He contends the court’s
mistaken assessment of the evidence under an irrelevant legal theory
requires reversal. We disagree.
The court’s additional and superfluous findings and discussion of the
felony-murder theory of liability are irrelevant. The court’s ruling is clear
that the felony-murder theory of liability was an alternate theory for ruling

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against Ojito, not an exclusive theory. The court explicitly addressed the
correct theory of liability and ruled that the evidence of specific intent was
sufficient beyond a reasonable doubt to support a murder conviction on an
aiding and abetting theory under current law. As we have explained, the
court’s ruling on the correct theory of liability is supported by substantial
evidence. The court’s findings that Ojito was also a major participant in an
unspecified felony and showed reckless indifference to human life during the
crime does not affect the existence of substantial evidence to support guilt
beyond a reasonable doubt with respect to the correct theory. This second
contention by Ojito accordingly lacks merit.
DISPOSITION
The order denying Ojito’s petition for resentencing is affirmed.

DO, J.

WE CONCUR:

MCCONNELL, P. J.

O’ROURKE, J.

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