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C.A. Division, for Fifth Time, Rejects Arguments Advanced by Slayer
By a MetNews Staff Writer
The Court of Appeal for this district on Friday, for the fifth time over a 22-year period, rejected contentions put forth by a man convicted in Los Angeles Superior Court on Oct. 6, 1999, of the second-degree murder of his uncle, with a finding that he personally used a firearm.
In an opinion that, like previous ones, was not certified for publication, Div. Two dismissed the appeal by Saul Pelayo from an order by Los Angeles Superior Court Judge David Stuart denying his motion challenging a $5,000 restitution fine imposed on him at his sentencing on Nov. 3, 1999 by then-Judge Meredith Taylor, now retired. Taylor did not inquire as to his ability to pay, as required by the 2019 decision in People v. Duenas, he protested.
The appeals panel—comprised of Presiding Justice Elwood Lui and Justices Victoria M. Chavez and Brian M. Hoffstadt—which previously appointed counsel to represent Pelayo on appeal, recited “the general common law rule that once execution of a criminal defendant’s sentence has commenced, the trial court loses jurisdiction to modify the sentence,” found that no exception applies, and declared:
“[B]ecause the trial court lacked jurisdiction to modify the restitution fine, its order denying appellant’s motion requesting to stay or reduce the fine did not affect his substantial rights and is not an appealable postjudgment order.”
The case is People v. Pelayo, B317900.
Conviction Affirmed
On Oct. 4, 2000, Div. Two, in an unpublished decision by then-Presiding Justice Candace Cooper (now a mediator/arbitrator), affirmed Pelayo’s conviction, and the California Supreme Court denied review on Dec. 20, 2000. Pelayo was back in Div. Two seeking a writ of habeas corpus which was summarily denied on Sept. 19, 2005. On his third trip to Div. Two, Pelayo appealed from Stuart’s denial of his motion, pursuant to recent legislation, to strike the firearm allegation and resentence him. He had been sentenced by Taylor to 15 years to life in prison, plus 10 years based on the firearm enhancement.
Stuart held that the “case is final and there is no separate, independent ground for resentencing” and Lui, Chavez and Taylor affirmed on Nov. 21, 2018.
Resentencing Again Sought
On Nov. 12, 2020, Div. Two, in an opinion by Lui, rejected Pelayo’s contention that he had been found guilty under the felony-murder rule, which has now been largely legislatively abrogated—but not as to a person who was “the actual killer”—and maintained he is entitled to resentencing.
“Appellant intentionally killed the victim, with malice,” Lui said in an opinion affirming Stuart’s denial of the motion.
Lui noted:
“The jury believed the prosecution witnesses, who testified that appellant deliberately fired three shotgun blasts, one at the unarmed victim’s head, despite pleas to stop.”
Pelayo has also litigated in the federal courts. In 2004, a magistrate judge of the U.S. District Court for the Central District of California found his petition for a writ of habeas corpus was time-barred and a District Court judge adopted the report and recommendation; the Ninth U.S. Circuit Court of Appeals reversed for reconsideration in light of a recent decision; on remand, it was determined that there had been tolling, but a magistrate judge found, on the merits, that no federal constitutional violation had occurred, and a judge so ruled.
The killing took place in San Fernando on Halloween in 1995. Federal authorities apprehended him three years later when he was crossing the border from Mexico.
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