Filed 1/11/22 P. v. Ortega CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060069
v. (Super. Ct. No. 16NF1172)
DAVID STEVEN ORTEGA, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Richard M. King, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Vincent
P. LaPietra and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant David Steven Ortega contends the trial court erroneously denied
his petition to vacate his murder conviction and be resentenced under Penal Code section
1170.95. 1 However, because the jury found appellant either personally killed the victim
with malice, or he directly aided and abetted the killing with such intent, he is ineligible
for resentencing relief as a matter of law. We therefore affirm the trial court’s denial
order.
FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 2015, David Douglas and John Anderson confronted appellant
and his fellow gang member Edgar Ramirez for spray painting gang graffiti in their
neighborhood. Nothing came of this initial encounter, but after the two groups parted
ways, Ramirez and appellant recruited several other members of their gang to get back at
Douglas and Anderson for daring to confront them. The retaliation was swift and deadly.
Although Ramirez did not partake in it, appellant and the new recruits ambushed Douglas
and Anderson while they were sitting in an SUV. During the attack, appellant and at
least one of his cohorts fired into the vehicle, killing Douglas and seriously wounding
Anderson.
Appellant and Ramirez were jointly tried. In closing argument, the
prosecutor contended appellant was guilty of first degree premeditated murder and
attempted premeditated murder because he either personally shot the victims with the
premeditated intent to kill, or he directly aided and abetted the shooting with such intent.
As for Ramirez, the prosecutor argued he was guilty of second degree murder for
recruiting his fellow gang members to carry out the attack, and he was guilty of attempted
murder because that offense was a natural and probable consequence of the targeted
crime of assault with a deadly weapon.
1
All further statutory references are to the Penal Code.
2
The jury was unable to reach a verdict as to Ramirez. However, it
convicted appellant as charged and found true a special circumstance allegation the
murder was committed to further the activities of his gang. (§§ 187, subd. (a), 189, subd.
(a), 190.2, subd. (a)(22).) In addition, the jury found appellant personally used a firearm
(§ 12022.53, subd. (b)), vicariously discharged a firearm causing death or great bodily
injury (§ 12022.53, subds. (d), (e)), and acted for the benefit of his gang (§ 186.22, subd.
(b)). The trial court sentenced appellant to life in prison without parole, plus multiple
indeterminate life terms, for his crimes.
With respect to the underlying trial, one other procedural issue bears
mentioning. Originally, appellant was also charged with personally discharging a firearm
causing death or great bodily injury under section 12022.53, subdivision (d). However,
the prosecution dismissed this allegation before trial, thinking it was duplicative of the
other firearm allegations. Thus, while the jury found appellant personally used a firearm
during the murder, which includes the act of displaying a gun in a menacing fashion, it
was not required to determine whether he actually fired the shots that killed Douglas and
wounded Anderson.
After we affirmed the judgment on appeal, appellant petitioned for
resentencing relief pursuant to section 1170.95, and the trial court appointed him counsel.
However, the court ultimately determined appellant was ineligible for resentencing
because, according to the record of conviction, he was not convicted of murder under the
felony murder rule or the natural and probable consequences doctrine. Therefore, it
denied his petition for failure to state a prima facie case for relief.
DISCUSSION
Appellant contends the trial court erred in relying on the record of
conviction to deny his petition. However, after briefing in this case was complete, the
California Supreme Court ruled trial courts may consider the record of conviction in
determining whether a defendant is eligible for resentencing under section 1170.95.
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(People v. Lewis (2021) 11 Cal.5th 952 (Lewis).) The Supreme Court determined “[t]his
is consistent with the statute’s overall purpose: to ensure that murder culpability is
commensurate with a person’s actions, while also ensuring that clearly meritless petitions
can be efficiently addressed as part of a single-step prima facie review process.
[Citation.]” (Id. at p. 971.)
In discussing section 1170.95, Lewis also made clear that resentencing is
permitted under that section only if the defendant was convicted of murder under the
felony murder rule or the natural and probable consequences doctrine. (Lewis, supra, 11
Cal.5th at pp. 959-960.) So, if the record of conviction shows otherwise, the defendant is
not eligible for resentencing relief. (Id. at p. 972.)
As explained above, appellant was prosecuted for murder on the theory he
either shot Douglas with the premeditated intent to kill, or he directly aided and abetted
the shooting with such intent. The prosecutor did not rely on the felony murder rule or
the natural and probable consequences theory of aiding and abetting in securing
appellant’s murder conviction. However, the prosecutor did rely on that theory in
arguing codefendant Ramirez’s guilt on the attempted murder charge, and the jury was
instructed it could find Ramirez guilty of that offense if it was a natural and probable
consequence of the targeted crime of assault with a deadly weapon. The jury was also
instructed “all instructions apply to each defendant.” (Italics added.)
In his reply brief, appellant makes a cursory argument based on the
italicized word “each.” Even though only Ramirez was named in the instruction on the
natural and probable consequences theory of liability, appellant claims the jury could
have reasonably construed the instruction as applying to both him and Ramirez, since it
was told all instructions applied to each defendant.
There are two flaws in this argument. First, the natural and probable
consequences theory was limited to the crime of attempted murder. The prosecutor did
not argue that theory with respect to murder, nor was the jury instructed that theory
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applied to murder. Therefore, that theory does not assist appellant in his effort to vacate
his conviction for murder.
Second, although the jury was instructed that all the instructions applied to
each defendant, it was also told to separately consider the evidence as to each defendant
and to decide each charge for each defendant separately. (CALCRIM No. 203.) The
jurors were also instructed some of the instructions they were given may not apply,
depending on how they interpreted the evidence. (CALCRIM No. 200.) These
instructions alerted the jury to the possibility that some of the instructions may only apply
to one defendant and not the other.
This was also made clear by other aspects of the case. As noted, the
instruction explaining the natural and probable consequences theory of aiding and
abetting mentioned Ramirez by name, but it did not mention appellant. In addition,
during his closing argument, the prosecutor tailored that theory specifically to Ramirez;
he did not argue it applied to appellant. Instead, he argued appellant was guilty as either
a perpetrator or a direct aider and abettor. And we know the jury found that argument
convincing because in finding the gang special circumstance allegation true, it necessarily
determined appellant either intentionally killed Douglas himself, or he aided and abetted
the killing with the intent to kill. (See CALCRIM Nos. 702 & 736.)
On this record, it is readily apparent the jury determined appellant was
guilty of murder either because he was the actual killer, or he directly aided and abetted
the deadly shooting. Because appellant’s murder conviction did not rest on the felony
murder rule or the natural and probable consequences theory of aiding and abetting, the
trial court properly denied his petition for relief.
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DISPOSITION
The order denying appellant’s petition for resentencing under section
1170.95 is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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