Filed 5/21/21 P. v. Cortez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077895
Plaintiff and Respondent,
v. (Super. Ct. No. SCS189535)
ADRIAN NATHANIEL CORTEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Gary G. Haehnle, Judge. Reversed and remanded with directions.
Lynda A. Romero, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Alan L. Amann, and Felicity Senoski, Deputy Attorneys
General, for Plaintiff and Respondent.
In July 2006, a jury convicted Adrian Nathaniel Cortez of first-degree
murder (Pen. Code,1 § 187, subd. (a)) and conspiracy to commit a crime
(§ 182, subd. (a)(1)) for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). Cortez admitted a prior strike conviction (§ 667, subds. (b)-(i)).
Cortez was sentenced to an indeterminate term of 76 years to life in prison.
In 2008, this court affirmed the convictions and remanded for
resentencing. (People v. Cortez et al. (Oct. 2, 2008, D049716, D050592)
[nonpub. opn.].)
In 2017, Cortez filed a petition for habeas corpus claiming instructional
error under People v. Chiu (2014) 59 Cal.4th 155 (Chiu). This court granted
the petition, set aside the first-degree murder conviction and remanded the
case with direction that Cortez could be retried for first degree murder on a
theory other than natural and probable consequences. (In re Cortez (July 14,
2017, D071551) [nonpub. opn.].)
On remand, the prosecution accepted reduction of the conviction to
second-degree murder instead of retrying the case.
In 2019, Cortez filed a pro. per. petition for resentencing under
section 1170.95. The trial court appointed counsel, received briefing, and
considered the record of conviction. Ultimately, the court denied the petition
by written order. The court found the evidence recited in this court’s original
opinion demonstrated Cortez was a direct aider and abettor and therefore
was not eligible for relief under section 1170.95.
Cortez filed a timely notice of appeal.
Cortez contends, and the Attorney General agrees, that the trial court
engaged in impermissible factfinding at the initial prima facie phase of the
petitioning process. Both parties contend we should reverse the trial court’s
1 All further statutory references are to the Penal Code.
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order and remand with directions to issue an order to show cause and
conduct further proceedings as required by section 1170.95. After careful
review of the record and consideration of the Attorney General’s concession of
error, we conclude the order should be reversed and the case remanded.
STATEMENT OF FACTS
The respondent’s brief contains a recitation of facts taken from our
2008 opinion. (People v. Cortez et al., supra, D049716, D050592.) We will
include that statement for convenience.
A. The People’s Evidence
1. The Murder
On October 16, 2004, Ignacio M. (Ignacio) was at a park in Chula Vista
along with several friends and his brother, victim Arturo M. (Arturo). Arturo
was a member of the Otay gang. At some point during the day, Arturo went
to a nearby restaurant. Around the same time that Arturo was walking back
from the restaurant to rejoin the group in the park, Fausto approached.
Fausto began asking the people in the group, “ ‘Where are you from?’ ”
Moments later, as Arturo approached the group, Fausto asked Arturo the
same question. Arturo responded by saying, “ ‘Otay.’ ” Fausto then began
shooting at Arturo with a gun. Ignacio ran for cover. Shortly thereafter,
Ignacio saw Fausto leave the scene in a waiting car.
Arturo died as a result of the gunshot wounds he received. An autopsy
revealed three gunshot wounds, two in Arturo’s torso, and one in his arm.
Police found a total of five shell casings from a .32–caliber gun within 15 feet
of Arturo’s body.
2. Accomplice Testimony
Varrio Chula Vista (VCV) gang members Raymond Pacheco and
William Parra testified at trial. Pacheco testified that in October 2004, he
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was a VCV gang member, as were Cortez, whom he knew as “Trusty,” and
Fausto, whom he knew as “Bullet.” Cortez was the leader of the VCV gang.
Pacheco stated that in the Fall of 2004, a member of the Otay gang—a rival
gang to VCV—shot VCV gang member Benjamin “Rocky” Moreno. On
October 16, 2004, several VCV gang members held a meeting at which this
shooting was discussed. Cortez, Pacheco, Parra, Fausto, and Jacob Sowder
were among the VCV gang members who attended the meeting. At the
meeting, Cortez asked whether anyone would be willing to shoot an Otay
gang member in retaliation for the shooting of Moreno, and Fausto and
Sowder volunteered to do so. Parra agreed to drive. Cortez gave Fausto a
gun. As the meeting disbanded, Fausto asked Pacheco if he wanted to go
along with Fausto to the shooting. Pacheco responded in the affirmative.
Pacheco testified that he, Parra, Fausto, and Sowder left the meeting
and got into Parra’s car. Parra drove the group around looking for Otay gang
members. When they saw several people standing around in a park, Parra
parked the car. Pacheco saw Fausto get out of the car and approach the
people who were standing in the park. Fausto spoke briefly to the people in
the park. Pacheco then saw Fausto fire a gun at Arturo. Arturo fell to the
ground, and Fausto fired more shots at Arturo while he was on the ground.
Fausto ran back to Parra’s car. Once in the car, Fausto said that he got “the
guy from Otay.”
Parra testified that on October 16, 2004 Cortez asked for volunteers to
retaliate against the Otay gang for shooting Moreno. Parra stated that
Cortez gave Fausto a gun, and that Fausto shot Arturo. Parra stated that he
accompanied Cortez to Alec Pojas’s house a few days after Arturo was shot.
Cortez sold Pojas a gun that was similar in appearance to the gun that Parra
had seen Cortez give to Fausto on the night Arturo was killed.
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3. Gang Evidence
Sergeant Eric Thunberg of the Chula Vista Police Department testified
as an expert on criminal street gangs. Sergeant Thunberg explained various
aspects of gang culture, including the notion that gang members are expected
to assist the gang in retaliating against anyone who shows disrespect for the
gang. Sergeant Thunberg described the history of the VCV gang, noting that
it was first documented as a gang in the 1970s. The Otay gang is a rival gang
to the VCV gang. Sergeant Thunberg opined that the charged offenses were
committed for the benefit of the VCV gang, to retaliate against Otay for its
shooting of a VCV gang member.
B. The Defense
Fausto testified at trial. He admitted that he was a VCV gang member
and that he had shot Arturo. Fausto denied that there had been a meeting of
VCV gang members on October 16, 2004 at which Cortez requested that VCV
members retaliate against the Otay gang. Fausto claimed that on the
evening in question, he had been planning to attend a party he had learned
about from his friend, Karina Lopez. Parra drove Fausto, Pacheco and
Sowder around, looking for the party. Fausto saw a group of people in the
park and got out of the car to see if anyone in the group knew the location of
the party. Fausto testified that Arturo came toward him in an aggressive
manner while shouting Arturo’s gang’s name. Fausto stated that he shot
Arturo because he believed Arturo was about to physically attack him.
Cortez’s sister and brother-in-law testified that Cortez was living in
Murietta, 60 miles north of Chula Vista, in the weeks preceding and following
the killing. Cortez’s sister testified that Cortez attended a family barbeque
and babysat for a neighbor in Murietta on the day and evening of the killing.
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C. Rebuttal
The People presented evidence that on September 15, 2004 a Chula
Vista police officer stopped a car that he suspected had been involved in a
different shooting incident. The car was registered to Moreno. Cortez and
Moreno were in the car. During that contact with police, Cortez fled the
scene.
DISCUSSION
At the outset of this discussion, we note our Supreme Court has
granted review in numerous cases arising under section 1170.95 as well as
other cases under Senate Bill No. 1437. Eventually, the court will provide
guidance to the trial and appellate courts on the proper approaches to
resolving petitions for resentencing under section 1170.95. Pending such
guidance, we will make our best efforts to resolve the cases before us.
Legal Principles
When a trial court receives a petition under section 1170.95, the court
may screen the petition to determine if the petitioner in ineligible for relief
under the section as a matter of law. (People v. Verdugo (2020) 44
Cal.App.5th 320, 329, review granted Mar. 18, 2020, S260493; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020,
S260598.)
The court’s ability to determine a petitioner is ineligible for relief upon
the initial filing is limited. The court may not engage in factfinding or make
credibility decisions. It can only utilize readily available facts which clearly
show the petitioner in not eligible as a matter of law. (People v. Drayton
(2020) 47 Cal.App.5th 965, 982.)
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Analysis
Here, the parties agree the court erred in finding Cortez was a direct
aider and abettor based on the review of our prior opinion. It is true there is
some evidence recited which could support a finding of direct aiding and
abetting by Cortez. However, it is also clear from our opinion in the habeas
corpus proceeding, that one of the theories of the prosecution was that Cortez
was liable for murder on a natural and probable consequences theory. We
reversed the first-degree murder conviction for violation of the holding in
People v. Chiu, supra, 59 Cal.4th 155. We remanded the case for retrial on a
theory other than natural and probable consequences. Notably, the
prosecution thereafter agreed to a second-degree murder plea. It is likely the
theory underlying the new plea was that the natural and probable
consequences of Cortez’s action justified a second-degree murder conviction.
In short, we find it is not possible at the initial stage of screening to resolve
the petition as a matter of law.
We agree with the appellant and the Attorney General that the court’s
order must be reversed, and the case remanded to the trial court for further
proceedings.
DISPOSITION
The order denying Cortez’s petition for resentencing under
section 1170.95 is reversed. The case is remanded to the trial court for
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further proceedings consistent with section 1170.95. We express no opinion
on the merits of the petition.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
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