Filed 1/31/22 P. v. Ordonaz CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C092859
v. (Super. Ct. No. 66841)
ROBERTO ORDONAZ,
Defendant and Appellant.
Defendant Roberto Ordonaz appeals from the denial of his petition to recall his
sentence pursuant to Penal Code section 1170.95. 1 He contends the trial court applied
the wrong legal standard when ruling on his petition. The People agree that remand is
1 Undesignated statutory references are to the Penal Code.
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appropriate, and we do too. We will vacate the order denying the petition and remand for
a hearing on defendant’s petition.
BACKGROUND
In 1984, defendant pleaded guilty to first degree murder and robbery and was
sentenced to an indeterminate 25-year-to-life term, along with a concurrent three-year
determinate term. During the plea, the prosecutor provided a factual basis incorporating
testimony from the codefendant’s trial, as well as defendant’s admissions to police
(acknowledging those statements were arguably in violation of Miranda v. Arizona
(1966) 384 U.S. 436 [16 L.Ed.2d 694]). The prosecutor stated: “Defendant not only
admitted to the police, but to his family members, that he participated in the offense,
contended that his crime partner was the gunman and inflicted the fatal shot to the victim,
contended to the police that even though he assisted the co-defendant, he did not
formulate the intent and the desire that the victim be killed.” The prosecutor added:
“Part of the reason . . . for the plea bargain includes the fact of the substantial evidentiary
problems regarding the admissibility in evidence against this Defendant, his confession to
the police, and the fact that statements from his family members flowed from that
confession to the police.”
Thirty-five years later, defendant petitioned for resentencing under section
1170.95. His petition asserted that he could not now be convicted of his murder charge
due to changes in section 189. He further declared, among other things, that he was not
the actual killer, he did not aid the killer with intent to kill, and he was not a major
participant and did not act with reckless indifference to human life.
The trial court appointed counsel to represent defendant.
The People moved to dismiss the petition arguing, among other things, that
defendant was an aider and abettor to murder and acted with intent to kill, and was
therefore ineligible for relief. Defendant countered that he had declared himself eligible
for resentencing, and the People’s conclusion was based on a probation report that relied
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on hearsay from police reports. Defendant added that nothing showed the victim’s
murder was preplanned. According to defendant, he had no intent to kill and did not
believe the codefendant would kill the victim.
The trial court denied the petition. The trial court summarized the evidence that
could have been presented at trial, saying it would have been sufficient to find defendant
guilty of first degree murder beyond a reasonable doubt. In so concluding, the trial court
relied on a 1983 preliminary hearing transcript as well as the factual basis provided
during defendant’s plea. The trial court explained: “This is sufficient evidence from
which a jury could have concluded or could now conclude establishes beyond a
reasonable doubt that defendant Ordonaz and [the codefendant] had taken the victim in
the victim’s car to the drainage canal, Ordonaz handed [the codefendant] the gun, and
[the codefendant] shot the victim execution-style in the back of the head with the gun
held only two inches from the victim’s head; the two dumped the body in the drainage
canal, and drove the victim’s car back through the mud; the area had been muddy and had
also muddied their clothes; they then went over to the home of Ordonaz’s sister, and
destroyed evidence of items they had stolen from the victim, and left the car downtown.
That defendant Ordonaz had a gun in his hand and handed it to [the codefendant] just
before [the codefendant] fired the execution-style shot is the most damaging piece of
evidence against Ordonaz, because that showed [that] he was directly aiding and abetting
[the codefendant] in the commission of a willful, premeditated, deliberate murder.
As such, the evidence would have been or would be sufficient for a jury to conclude,
beyond a reasonable doubt, that defendant Ordonaz is guilty of first degree willful,
premeditated, deliberate murder without need to rely on the natural and probable
consequences doctrine or the felony-murder rule.”
The trial court also found sufficient evidence for felony murder while acting as a
major participant with reckless disregard for human life. The trial court applied the
multifactor tests in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
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63 Cal.4th 522 to determine, respectively, whether defendant was a major participant, and
whether defendant, as an aider and abettor, acted with reckless disregard for human life.
The trial court concluded defendant did not make a prima facie showing of
eligibility for relief.
DISCUSSION
Defendant contends the order denying his section 1170.95 petition must be
reversed because the trial court applied the wrong legal standard. The People agree that
remand is appropriate.
As the California Supreme Court recently explained, “In addition to substantively
amending sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437 added
section 1170.95, which provides a procedure for convicted murderers who could not be
convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).) Under section 1170.95, the defendant “must file a petition
in the sentencing court averring that: ‘(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences doctrine[;] [¶]
(2) The petitioner was convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for
first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted
of first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.’ ” (Lewis, at pp. 959-960.)
Upon the filing of a facially sufficient petition, the trial court appoints counsel,
and then considers whether the petitioner has made a “a prima facie showing” for relief.
(Lewis, supra, 11 Cal.5th at pp. 960, 970.) If the trial court finds such a showing, it
issues an order to show cause, and holds a hearing to determine whether to vacate the
conviction and resentence the petitioner. (Id. at p. 960.) At the hearing, the prosecution
must “ ‘prove, beyond a reasonable doubt, that the petitioner is ineligible for
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resentencing,’ ” and the parties, “ ‘may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ ” (Ibid.)
To determine whether a prima facie showing has been made, the trial court can
consider the record of conviction, which may allow it to distinguish meritorious petitions
from those that are clearly not. (Lewis, supra, 11 Cal.5th at pp. 970-971.) But “[i]n
reviewing any part of the record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at p. 972.) The Supreme Court explained: “Like the analogous prima
facie inquiry in habeas corpus proceedings, ‘ “the court takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding whether the petitioner
would be entitled to relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citations.] ‘However, if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in the petition,” then “the court
is justified in making a credibility determination adverse to the petitioner.” ’ ” (Id. at
p. 971.)
Here, at the prima facie stage, the trial court considered evidence that it said could
have been presented at trial to conclude that such evidence would have supported a direct
aiding and abetting theory or felony murder. Such an evaluation of evidence required a
hearing.
We will vacate the order denying the petition and remand for a hearing on
defendant’s petition. In light of our conclusion, we need not address defendant’s further
argument that the trial court’s order violated his right to federal due process.
DISPOSITION
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The order denying the section 1170.95 petition is vacated, and the matter
is remanded for a hearing on defendant’s petition for resentencing.
/S/
MAURO, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
RENNER, J.
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People v. Ordonaz CA3
Combined Opinion