People v. Olivas CA1/1

Filed 10/15/20 P. v. Olivas CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A159163 v. PEDRO JOAQUIN OLIVAS, (San Mateo County Super. Ct. No. SC058741A) Defendant and Appellant.

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.

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