Filed 3/20/26 P. v. Heredia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084124
v. (Super.Ct.No. RCR18132)
CATARINO HEREDIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne,
Judge. Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Chief
Assistant Attorneys General, Stephanie Chow and Elana Miller, Deputy Attorneys
General, for Plaintiff and Respondent.
1 Defendant and appellant Catarino Heredia appeals from the trial court’s denial of
his petition to vacate his 1991 attempted murder conviction. (Pen. Code,1 § 1172.6.)
Had the petition been granted, defendant, now age 57, sought resentencing on his
conviction for the remaining offenses he committed with an older coperpetrator when he
was 22 years old in 1990. Defendant’s appellate briefing commenced initially with a no-
issue brief filed by appointed counsel requesting our independent review for arguable
issues. (Citing Anders v. California (1967) 386 U.S. 738; People v. Wende (1979)
25 Cal.3d 436; but see People v. Delgadillo (2022) 14 Cal.5th 216, 228 [holding that
Anders/Wende mandatory independent review does not apply to postconviction appeals
arising under § 1172.6].) Defendant in his supplemental brief (see Delgadillo, at p. 232)
faulted the trial court for not expressly addressing at the section 1172.6 evidentiary
hearing whether his relative youth factored into the court’s determination that he was
guilty beyond a reasonable doubt of attempted murder. On the evidence presented at the
hearing, the court as the trier of fact found defendant harbored express malice in directly
aiding and abetting the victim’s near-slaying.
Defendant’s alternate defender had raised the issue of defendant’s youth at the
evidentiary hearing, citing People v. Pittman (2023) 96 Cal.App.5th 400 (Pittman). (See
id. at pp. 416-418 [finding the defendant’s youth, at age 21, relevant to guilt
determination in section 1172.6 proceedings, under consensus emerging case law].) We
vacated submission of the matter under Delgadillo and requested that the parties address
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Pittman-related issues on the merits. The parties have done so ably and on our review, as
we discuss post, we cannot say the trial court erred regarding consideration of defendant’s
youth. The issue was, as our full review discloses, raised multiple times over the course
of several continued hearings and we must credit the trial court’s statement it would
consider Pittman. Nor similarly do we find any ineffective assistance of trial counsel
(IAC) in not pressing for an express ruling regarding the effect, if any, of defendant’s
relative youth—given that counsel repeatedly raised the issue. In the absence of error or
IAC, we therefore affirm the trial court’s ruling denying defendant’s section 1172.6
petition.
BACKGROUND
In a joint trial with codefendant Victor Randy Lopez, the jury convicted defendant
of attempted murder (§§ 664, 187, subd. (a)), count 1), kidnapping for robbery (§ 209,
subd. (b), count 2), second degree robbery (§ 211, count 3), and automobile grand theft
(former § 487(3), count 4). The jury found enhancement allegations true that as to
count 1, a principal was armed with a firearm (§ 12022, subd. (a)(1)) and that Lopez
personally used a firearm in committing the attempted murder (§ 12022.5). The jury
further found on counts 1, 2, and 3 that Lopez personally inflicted great bodily injury on
the victim, and on counts 2, 3, and 4 that Lopez and defendant each personally used
firearms (§ 12022.5). The jury rejected the allegation that defendant committed the
attempted murder with premeditation and deliberation, but found that Lopez did so.
In January 1992, the trial court sentenced defendant to determinate and
indeterminate prison terms. The determinate term was 13 years, consisting of
3 consecutive terms of 7 years for the attempted murder, an additional year because a
principal was armed, and 5 years for defendant’s firearm use on another count, to be
followed by an indeterminate life term—with the possibility of parole—for the
kidnapping for robbery count. The court entered a stay on each of the remaining counts
and allegations. This Court affirmed the judgment in an unpublished opinion. (People v.
Heredia (Oct. 22, 1993, E010647) [nonpub. opn.].)
In May 2023, defendant filed his section 1172.6 petition to vacate the attempted
murder conviction and for resentencing. The prosecution opposed defendant’s requested
relief under the statute, but agreed the petition stated the necessary prima facie case to
proceed to an evidentiary hearing. The trial court issued an order to show cause (OSC)
setting an evidentiary hearing, which was continued several times. The court conducted
the hearing over several days in February, March, and June of 2024.
Defense counsel’s opening statement at the hearing summarized defendant’s
contention that his attempted murder conviction must be vacated under current law
because the evidence “will fail to show beyond a reasonable doubt that Mr. Heredia had
an intent to kill back in 1990.” This included because he “was in the presence of a much
older, more experienced individual who was the codefendant, Mr. Lopez.”
Defense counsel’s opening statement previewed the evidence towards granting
defendant’s petition in relevant part as follows. Lopez had “an angry relationship” with
the victim, claiming “over several months” that the victim owed a debt, resulting in “a
great deal of threats going back and forth between them,” whereas Heredia had no “prior
activity” or involvement with the victim.
4 “[O]n the date in question,” Lopez “went to confront [the victim],” taking his (i.e.,
Lopez’s) son with him “and [defendant] went with them.” Lopez and Heredia “both had
firearms” and the victim “was forced into his own vehicle,” where the victim, who
“indicated and testified that he was frightened,” persuaded his captors to allow his friend
(“Noney”) to accompany them in the car. “[W]hile they were in the car,” defendant was
“telling Noney . . . that they’re gonna let [the victim] go in a little while. They were
gonna drive him around and let him go,” supporting, counsel argued, the conclusion
defendant “did not have an intent to kill.” Counsel acknowledged that “[a]t one point
[defendant] was telling [the victim] to get down, and hitting him with a gun,” but, “at the
same time he was telling him we’re gonna let you go. This is all according to the
testimony of [the victim].”
Lopez drove the victim in his car, along with defendant and Noney, to Lopez’s
residence, where they changed vehicles to the one Lopez’s son had driven there. Noney
no longer accompanied them. Still, counsel emphasized the defense’s view (“we believe
the evidence will show”) that while “Lopez kept saying to kill” the victim, defendant
“said, No, let’s let him go.”
Continuing the chronology of events, defense counsel outlined how the trio
“arrived at a location in Riverside,” which later evidence at the hearing showed was in a
remote area on a frontage road. There, the victim “was ordered out of the car at
gunpoint,” with both Lopez and defendant “armed with firearms.” The victim “tried to
escape, but was stopped.” Defense counsel emphasized that while Lopez “told”
defendant “repeatedly to shoot” the victim, the victim’s testimony was that defendant
5 “stood over him [holding] the firearm, for five or six minutes, as Mr. Lopez continually
ordered [defendant] to shoot [the victim], and [defendant] refused to do so.” Lopez then
“took the gun away from [defendant] and shot [the victim].” The victim suffered three
gunshot wounds, including one in his upper chest, but he survived. Lopez and defendant
drove away.
Defense counsel acknowledged “some reference” in the prosecutor’s OSC hearing
brief “that my client said something about ‘breaking’ ” while in the car with the victim,
which the prosecutor alleged was slang for “shooting somebody in the car,” namely the
victim. Defense counsel emphasized that in the victim’s testimony at Lopez’s
preliminary hearing—much closer in time to the offense than at trial—the victim “never
says anything about [defendant] threatening to break the victim or . . . anything like that.”
Defense counsel’s concluding remarks in his opening statement included that the
jury “did not find [defendant] was the shooter” in the attempted murder, but rather only
armed vicariously as a coparticipant, and the jury rejected the premeditation allegation
against defendant. Counsel noted in light of a natural and probable consequences
instruction (CALJIC No. 3.02) that the jury “wasn’t required to find malice aforethought”
for attempted murder. In a colloquy with the court, counsel acknowledged the jury was
instructed on direct aiding and abetting liability as to the attempted murder. Counsel
summarized in conclusion that the “evidence in this case” for the court’s consideration
under section 1172.6 “will not show [attempted murder] beyond a reasonable doubt [but
rather] will in fact demonstrate that [defendant] did not have an intent to kill.” The court
summarized its role at the hearing in similar terms: “If I believe that the People have
6 failed to prove beyond a reasonable doubt that [defendant] is guilty of attempted murder,
I will be vacating his conviction.”
At subsequent points and over successive days during the hearing, defense counsel
returned to his opening remarks about defendant’s relative youth. Counsel cited in
particular “People versus Pittman” on the issue of defendant’s “age and . . . assess[ing]
specific intent.” Counsel provided the reporter citations for the case and, after the court
confirmed the case name (“P-I-T-T-M-A-N?”), the court stated: “I’ll look at [it].”
On a later hearing date, counsel brought up Pittman again, emphasizing its holding
“that the [trial] court [at a section 1172.6 hearing] should consider the youth of the
subject in assessing whether or not he formed the requisite mental state.” Counsel stated,
“[T]he admissible evidence would demonstrate that Mr. Lopez was substantially older
and more experienced, and in particular factually . . . that it was Mr. Lopez who had a
beef with [the victim], it wasn’t [defendant].” Defense counsel stressed: “So I think his
age is very important.”
Counsel reiterated this theme at the close of the evidentiary hearing. Arguing that
when defendant “repeatedly declined to [shoot the victim] and hesitated for five or six
minutes,” “[i]f he had an intent to kill at that point, certainly he would have followed the
order of the individual who is running the show, who is a more experienced criminal, and
who has his own gun and is ordering him repeatedly to shoot the victim, and he won’t do
it.” Counsel concluded by arguing that defendant’s “conduct in this case was [as] a
young man who used the firearm to aid and abet in a kidnap robbery,” but “with no intent
to kill on the part of [defendant].”
7 The trial court took a different view than the defense. Before making its ruling,
the court engaged in a “lengthy” review of the evidence, which the court “broke . . . down
into three parts,” consisting of “evidence that shows [defendant] had no intent to kill,”
evidence he harbored that intent, and the court’s conclusion as the trier of fact.
In reviewing the evidence pointing to intent to kill, the court highlighted that when
Lopez and defendant “talked about what they were going to do with [the victim],” both
men “each had guns pointed at him,” defendant was the one who “started hitting” the
victim and “had him bend down” in the car, and after Lopez “told [defendant] he wanted
to break [the victim], which [the victim] took to mean kill him execution style,” both
defendants “ordered [the victim] out of the car at gunpoint” on the frontage road. The
court noted the victim testified defendant forced him to the ground, “had a gun” in giving
the order, and that it was defendant who “cut . . . off” the victim “when he was trying to
get away on foot on the frontage road,” stopping him by running after him and “pointing
a gun at him.”
The court questioned “why” defendant and Lopez “together” would “force [the
victim down] onto his knees in a ditch in an isolated area at night at gunpoint,” with
defendant “cut[ting the victim] off at gunpoint . . . if he was just trying to [section] 245
him, assault him with a deadly weapon?” The court observed the victim “had already
been assaulted with a deadly weapon before that more than once.” The court also noted
testimony by the victim indicating “it switched” between Lopez and defendant “at times”
as to “who said he was going to break him” and who “was saying to let him go.” The
court acknowledged “different inferences you can take from that,” including “perhaps
8 some psychological ploy to keep [the victim] compliant until they got to their
destination.” The court, “at the end of the day,” returned to the fact that “both” Lopez
and defendant “working together forced [the victim] on his knees at gunpoint in a ditch in
an isolated area and prevented him from escaping.” The court earlier had noted the
victim testified that at this moment “he had no doubt that they, he used the word ‘they,’
they were going to kill him.”
Ultimately, the court adopted the view argued by the prosecutor at the underlying
trial. The court concluded, referencing the prosecutor’s argument: “This is a direct
quote, ‘[Defendant] wanted him dead. He just did not want to be the trigger man.’ ” The
court found “beyond a reasonable doubt [that] defendant had the intent to kill, he just did
not want to pull the trigger.” Determining that defendant “directly aided and abetted
[Lopez] with the intent to kill beyond a reasonable doubt,” the court denied defendant’s
section 1172.6 petition.
Defendant appealed and as noted above, the matter is before us now after merits
briefing. In particular, our order vacating submission under Delgadillo requested, citing
Pittman, that the parties brief the following issue: “[W]hether the trial court addressed
defendant’s request to consider his age and related youthful offender characteristics in
determining whether he acted with the requisite malice for attempted murder.” The order
also contemplated briefing on whether trial counsel failed to address the youth issue or
secure a ruling on it, if defendant asserted IAC below.
9 DISCUSSION
The parties have ably and thoroughly presented their merits briefing and, after our
foregoing review of the OSC proceedings and the governing law, our discussion is brief.
Respondent’s initial primary contention is that because the issue of guilt for
attempted murder turns on express malice—an actual intent to kill, even if not
premeditated—Pittman is distinguishable. Respondent argues based on this distinction
that the youth factors discussed in Pittman related to whether a defendant committed
implied malice murder are “irrelevant” to determining the mental state of a defendant
accused of attempted murder. We are dubious of respondent’s distinction but, as we
explain, we need not resolve the question here.
In Pittman, the appellate court agreed with the defendant that the trial court should
have considered factors related to his relative youth when it determined at his
section 1172.6 evidentiary hearing that he was guilty of implied malice murder.
(Pittman, supra, 96 Cal.App.5th at pp. 416-418.) The defendant in Pittman was 21 years
old at the time of his offense. (Id. at p. 416.) Pittman concluded, quoting a then-recent
case in a then-emerging body of authority, that “given the timing of the cases deciding
that youth is a relevant factor bearing on mental state in section 1172.6 petitions, ‘ “ ‘ it is
unlikely . . . that the trial court [or the parties] could have known to consider [Pittman’s]
age and maturity level.’ ” ’ ” (Pittman, at p. 416, bracketed language inserted by Pittman,
quoting People v. Oliver (2023) 90 Cal.App.5th 466 [the defendant in Oliver was
23 years old].) Holding that “Pittman’s youth is a relevant factor in assessing whether he
formed the requisite mental state for conviction,” the Pittman court reversed the denial of
10 the defendant’s section 1172.6 petition and remanded for a new evidentiary hearing.
(Pittman, at p. 404.)
Respondent distinguishes Pittman because it involved an implied malice murder
finding rather than express malice. That distinction is accurate, but likely of limited
value generally, and of no value here. It has limited general distinguishing value because
it is also true that many of the cases Pittman discussed arose in the context of considering
the relevance of youthful offender factors to upholding felony murder jury findings. (See
Pittman, supra, 96 Cal.App.5th at pp. 416-417.) Pittman found those factors “apply
equally in the context of implied malice murder.” (Id. at p. 417.)
We are skeptical of respondent’s claim those same factors are irrelevant to whether
a youthful defendant harbored express malice. For instance, the “policy interests”
Pittman identified as being at stake in both felony murder and implied malice murder—
including “that youth is relevant to a criminal defendant’s ability to perceive risk and
consequences, and therefore to the level of culpability” (Pittman, supra, 96 Cal.App.5th
at p. 417)—appear to apply equally to express malice. In this vein, Pittman looked to
“cases discussing the role of youth in relation to criminal culpability,” and found those
cases “ ‘stress[ed] two areas’: youthful offenders’ ‘relative impulsivity’ and ‘their
vulnerability to peer pressure.’ ” (Id. at p. 418.) Pittman noted settling recognition in the
case law that “ ‘ “[t]ransient rashness,” ’ ‘ “ ‘impetuosity’ ” ’ and ‘ “ ‘failure to appreciate
risks and consequences’ ” ’ are hallmarks of an immature brain.” (Ibid.) Thus, Pittman
cited “nearly uniform[]” “[r]ecent appellate cases” concluding “that a defendant’s
youth—defined, roughly, as being 25 years of age and younger—is a factor within the
11 totality of circumstances relevant to the requisite mental state for felony murder” and, as
Pittman held, implied malice murder. (Id. at p. 416.2)
It seems likely these factors would be equally relevant, contrary to respondent’s
claim, to determining whether a young person had the actual intent to kill necessary for
attempted murder. Such factors could indicate the person was carried away or
overwhelmed by impulsivity, rashness, susceptibility to suggestion or command, or
otherwise lacking the requisite express malice mental state at the moment of truth.
We need not, however, enter into an extended discussion or analysis that
respondent invites with contrary arguments on this question. Instead, even assuming
arguendo that defendant is correct that consideration of his relative youth was required, as
in Pittman, for the trial court to determine whether he harbored the requisite mental state,
the record and the standard of review require that we conclude the court did so.
In particular, when defense counsel cited Pittman’s importance regarding
defendant’s “age” for “assess[ing] specific intent,” the trial court expressly affirmed “I’ll
look at [it].” We must presume the court did so. (Evid. Code, § 664 [official duty
regularly performed].) Defendant faults the trial court for not specifically mentioning his
relative youth in its ruling. But as defendant acknowledges, a reviewing court presumes
the trial court follows the law and duly considers the matters and evidence presented to it.
2 The only outlier noted by Pittman in the emerging case law did so by implication at most; namely by “discussing” as Pittman noted, “[the] defendant’s youth, but suggesting that consideration was more relevant to the question whether he should be released on parole.” (Pittman, supra, 96 Cal.App.5th at p. 417, citing People v. Mitchell (2022) 81 Cal.App.5th 575, 595].)
12 (In re Julian R. (2009) 47 Cal.4th 487, 499; In re Jones (2022) 86 Cal.App.5th 1076,
1092 (Jones).) Thus, “[i] the usual case, the fact that a court did not specifically mention
certain evidence does not mean that the court ‘ignored’ that evidence.” (Jones, at
p. 1092.)
Defendant argues that, as in Jones, departure from the presumption is warranted
because of the then-newly-coalescing authority spotlighted in Jones and Pittman
recognizing consideration of relative youthfulness even for defendants in their twenties.
(See Jones, supra, 86 Cal.App.5th at p. 1092 [based on the date of the defendant’s
§ 1172.6 evidentiary hearing, “it is unlikely in this particular instance that the trial court
could have known to consider [20-year-old] Jones’s age and maturity level”].) Defendant
also turns to Pittman in this regard. There, the appellate court observed that the trial
court “did not mention the [emergent youth] subject in its otherwise comprehensive
ruling.” (Pittman, supra, 96 Cal.App.5th at p. 417.) As quoted by defendant, Pittman
concluded: “We cannot, therefore, assume the trial court implicitly considered it.” (Ibid.)
Defendant’s reliance on Jones and Pittman is flawed. Defendant omits that in
Pittman “there was no discussion of Pittman’s youth in the proceedings in the trial court”
whatsoever. (Pittman, supra, 96 Cal.App.5th at p. 417, italics added.) In Jones,
similarly, while the defendant’s trial counsel pointed to established case law concerning
youthful mitigation for minor defendants, counsel did not mention the then-recent
authority extending those considerations to young adult defendants like Jones. (See
Jones, supra, 86 Cal.App.5th at p. 1092 [trial court’s decision omitted discussion of youth
13 factor “just a few weeks after” People v. Harris (2021) 60 Cal.App.5th 939 was decided,
“without any remonstrance by defense counsel”].)
In contrast, as we set out supra in detail, defendant’s trial counsel repeatedly from
beginning to the end of the evidentiary hearing—stretched over multiple hearing dates—
continually raised the issue of defendant’s relative youth. Our full review of the lengthy
hearing proceedings, guided by the parties’ briefing, shows that the issue was not just
raised on an isolated occasion and perhaps forgotten. Instead, it was thoroughly
presented as a central theme at the hearing and, on this record, we presume considered by
the trial court. In particular, in reviewing Pittman as the trial court promised it would, the
court became, if it were not already, well-versed in considering youth in determining guilt
for young adult defendants, exactly as defendant requested.
Defendant suggests that because the hearing stretched over several months,
defense counsel’s references to the issue or to Pittman may have dulled. To the contrary,
however, we review the record in the light most favorable to the trial court’s ruling, not
against it. (See, e.g. Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The fact that
the hearing extended over multiple dates, and defense counsel each time raised and re-
raised the issue of defendant’s relative youth, persuades us that the issue and applicable
authority were considered by the trial court. On this record, moreover, we cannot say
there was any ineffective assistance of counsel in trial counsel’s thorough presentation of
the issue.
14 DISPOSITION
The trial court’s ruling denying defendant’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
FIELDS J.