People v. Ortega CA2/7

Filed 2/9/22 P. v. Ortega CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B308609

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA191775)
v.

JOSE LUIS ORTEGA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Reversed and
remanded with directions.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
 Jose Luis Ortega appeals from a postjudgment order
denying his petition for resentencing under Penal Code
section 1170.951 as to his 1996 conviction of felony murder. We
agree with Ortega the superior court erred in finding Ortega was
ineligible for relief without issuing an order to show case and
holding an evidentiary hearing to determine Ortega’s eligibility
for relief. In denying the petition, the court relied on the jury
finding true the special circumstance that Ortega committed the
murder in the commission of a robbery and carjacking, even
though Ortega was convicted almost two decades prior to the
Supreme Court’s holdings in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark),
which clarified the factors a jury should consider in finding a
defendant was a major participant who acted in reckless
disregard for life. The superior court also erred in engaging in
premature factfinding in finding as an alternative basis for its
denial of the petition that on the factual record before the court,
Ortega was a major participant who acted with reckless
disregard for life. We reverse the order and remand with
directions for the superior court to issue an order to show cause
and hold an evidentiary hearing pursuant to section 1170.95,
subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial
We described the 1996 shooting, robbery, and carjacking in
our prior opinion in People v. Ortega (Nov. 8, 2004, B160750)

1 All statutory references are to the Penal Code.

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[nonpub. opn.] (Ortega I). On August 20, 1996 Baudillo
Hernandez was stopped at a red light on Gage Avenue at the
intersection of Gage and Miramonte Boulevard. He saw a small
Toyota on Miramonte at the intersection. Hernandez also saw a
white van on Miramonte drive up behind the Toyota and around
it. The van stopped in front of the Toyota and blocked its path.
According to Hernandez, Ortega and two other Hispanic
males got out of the van and walked towards the Toyota. One of
the men pointed a gun at the driver of the Toyota, and the driver
got out of the car with his hands up. Hernandez heard the driver
plead with the men to take what they wanted but not to hurt
him. The assailants took several items from the driver’s pockets.
Hernandez saw Ortega get into the Toyota.2 The assailant with
the gun shot the driver of the Toyota, and the shooter and the
other assailant got back into the van and drove off behind Ortega,
who drove off in the Toyota.
Sergio Alvarado also witnessed the crimes while standing
in front of a house on Miramonte. He observed the Toyota drive
on Miramonte towards the intersection at Gage. The Toyota
pulled up behind the white van, which was already stopped at the

2 At trial, Hernandez testified the driver of the van yelled to
the others “let’s go, let’s go” while the victim said, “Don’t shoot.
Don’t shoot.” However, in a transcript of a 1996 interview
Hernandez gave the police (translated from Spanish), Hernandez
attributed all of these statements to the van driver. Hernandez
maintained the translated transcript of the interview was
inaccurate and the van driver never said, “Don’t shoot. Don’t
shoot.”

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intersection.3 A Hispanic male got out of the van carrying a gun
and forced the driver out of the Toyota. Alvarado heard the
driver plead for his life and then saw the Hispanic male shoot the
driver. Alvarado saw a second person emerge from the van and
get into the victim’s car. Alvarado saw the van drive away,
followed by the Toyota.
The driver of the Toyota died at the scene from the gunshot
wound. When interviewed by the police in 1996, Alvarado denied
seeing any tattoos on the shooter. However, when interviewed
again by the police in February 1999, Alvarado stated he saw a
tattoo with some letters on the back of the shooter’s head as the
shooter turned around to get back into the van. In August 1999
Alvarado selected Ortega’s photo from a six-pack photographic
lineup and indicated Ortega looked familiar from the day of the
incident.
In 1999 the police found the van believed to have been
used in the crimes. At the time the crimes were committed, the
van was registered to Ortega. Detective Ortiz located Ortega in
custody in Wyoming and went to interview him. In his tape-
recorded statement, Ortega told Detective Ortiz that he was an
active member of the Florencia 13 Gang. Ortega also admitted
he was the driver of the white van during the incident. He said
he was stopped at a light on Miramonte when one of the other
occupants of the van got out and decided to carjack the Toyota.
Ortega stated he did not know beforehand that the other
occupants planned to commit the crimes. Ortega claimed that
when he saw what was going on, he yelled out, “Hurry up, let’s

3 Alvarado admitted that he might have initially told
investigators that the van drove-up along side the Toyota, or
made a U-turn to “box-in” the Toyota.”

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go. Don’t shoot him.” Nonetheless, the person with the gun shot
the driver of the Toyota and then drove away in the victim’s car.
Ortega admitted that he followed the Toyota for a short distance
after the shooting. During the interview, Detective Ortiz saw
Ortega had a tattoo with some letters on the back of his head.

B. The Verdict and Sentencing
The jury convicted Ortega of first degree murder (§187,
subd. (a); count 1), robbery (§ 211; count 2); and carjacking (§ 215,
subd. (a); count 3). The jury found true the special circumstance
that the murder was committed in the commission of a robbery
and a carjacking. (§ 190.2, subd. (a)(17).) As to each offense the
jury found true a principal was armed in the commission of the
offense. (§ 12022, subd. (a)(1).)
The trial court sentenced Ortega on count 1 to life without
the possibility of parole based on the special circumstance of the
commission of the murder during a robbery, plus one year for the
firearm enhancement. As to count 1 the court also imposed and
stayed under section 654 a second term of life without the
possibility of parole based on the special circumstance of the
commission of the murder during a carjacking. The court stayed
the sentences on counts 2 and 3.

C. Ortega’s Appeal
Ortega argued on appeal, among other grounds, that the
trial court failed to instruct the jury that to find Ortega guilty of
felony murder as an aider and abettor to the robbery or
carjacking, the jury had to find he became an aider and abettor
before the murder occurred. Ortega also argued error with
respect to the jury’s consideration of the gang evidence and

5
ineffective assistance of counsel. We found no prejudicial error
and affirmed the judgment but removed the second life sentence
because Ortega was charged with only one count of murder and
one special circumstance. (Ortega I, B160750.)

D. Ortega’s Petition for Resentencing and the Superior Court’s
Ruling
On April 11, 2019 Ortega, representing himself, filed a
form petition for resentencing seeking to vacate his murder
conviction and be resentenced in accordance with recent
statutory changes relating to accomplice liability for murder. In
his petition, Ortega declared he “was convicted of 1st or 2nd
degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine,” and he “could not now be
convicted of 1st or 2nd degree murder because of changes made to
Penal Code §§ 188 and 189, effective January 1, 2019.” He also
checked the box on the form stating he was not the actual killer
and did not act with the intent to kill. Further, he asserted he
was not a major participant in the felony or did not act with
reckless indifference to human life. Ortega requested the court
appoint him counsel during the resentencing process. Ortega
attached to his petition what appears to be portions of his
attorney’s opening brief filed in Ortega I.
The superior court appointed counsel for Ortega and
ordered the People to file a response. The People argued in their
response that Senate Bill 1437 was unconstitutional and Ortega
was ineligible for relief because, by finding the felony-murder
special circumstance to be true, the jury must have found Ortega
intended to kill. Ortega responded in his reply that he was
entitled to issuance of an order to show cause because he was not

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a major participant and did not act in reckless disregard for
human life under the factors articulated by the Supreme Court in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522.
Ortega and the People filed supplemental briefing addressing
whether the court should issue an order to show case based on
Banks and Clark.
On September 2, 2020, following a hearing at which counsel
presented argument, the superior court denied the petition,
finding Ortega was ineligible for resentencing under
section 1170.95 because of the special circumstance finding by
the jury. The court explained there was a split of authority in the
Courts of Appeal as to whether any challenge to the evidentiary
support for the special circumstance finding under Banks and
Clark could be brought in a section 1170.95 petition or only by a
petition for writ of habeas corpus. The court agreed with the
reasoning in People v. Galvan (2020) 52 Cal.App.5th 1134, review
granted October 14, 2020, S264284 and other cases holding that a
petition for writ of habeas corpus was the exclusive remedy.
The superior court also looked at the underlying facts of the
case to support its finding Ortega was a major participant who
acted with reckless disregard for human life, explaining, “[T]here
is no dispute that [Ortega] was the driver of the van that blocked
the Toyota. There is no dispute that they, almost immediately
after the person who was driving the Toyota got out, shot him.
There is no dispute that the way this individual was shot, it
seemed to be, based on the witness’s testimony, unprovoked. It
seemed to be part of a well-coordinated plan, that they weren’t
going to leave any witnesses.” The court added that Ortega was
part of a gang, the gang was involved, and “this didn’t just
happen by accident. This was part of a gang thing to do crime in

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their area.” Further, Ortega’s testimony “definitely cuts against
him” because he said to the shooter, “‘Don’t shoot,’” which “shows
that he had knowledge that someone had a gun, that a firearm
was being used in the particular [crime,] and that is one of the
factors.” The court made other factual findings on the Banks and
Clark factors, including that as a gang member, the participants
“had to know there would be some kind of danger, possibly a
reaction to taking somebody’s car.” The court concluded, “I find,
based on the facts, which I am entitled to read, in the opinion and
in the transcript, which I read, that this defendant—that there is
no injustice or anything. There is nothing that, for example,
makes him a getaway driver. . . .”
Ortega timely appealed.

DISCUSSION

A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) eliminated the natural and probable consequences doctrine
as a basis for finding a defendant guilty of murder and
significantly limited the scope of the felony-murder rule. (People
v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile
(2020) 10 Cal.5th 830, 842-843, 847-848 (Gentile).) New
section 188, subdivision (a)(3), provides, “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” New section 189, subdivision (e)(3), in
turn, limits the felony-murder rule exception to the malice
requirement for aiders and abettors to circumstances where the

8
People prove the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.”
Senate Bill 1437 also provides a procedure in new
section 1170.95 for an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder under Senate Bill 1437’s changes to
sections 188 and 189.4 (Lewis, supra, 11 Cal.5th at p. 959;
Gentile, supra, 10 Cal.5th at pp. 842-843.) If the section 1170.95
petition contains all the required information, including a
declaration by the petitioner that he or she was convicted of
murder and could not now be convicted of murder because of
changes to section 188 or 189 (§ 1170.95, subd. (b)(1)(A)), the
court must appoint counsel to represent the petitioner upon his or
her request pursuant to section 1170.95, subdivision (b)(3).
Further, upon the filing of a facially sufficient petition, the court
must direct the prosecutor to file a response to the petition and

4 Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 551, § 2) amended section 1170.95, effective January 1, 2022,
to, among other changes, (1) apply section 1170.95 to convictions
for voluntary manslaughter and attempted murder; (2) add new
subdivision (b)(3), which requires the appointment of counsel at
the prima facie review stage if requested; (3) affirm the standard
of proof at the order to show cause hearing is proof beyond a
reasonable doubt; and (4) clarify that “[a] finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.”

9
permit the petitioner to file a reply, and the court must
determine whether the petitioner has made a prima facie
showing that he or she is entitled to relief. (See § 1170.95,
subd. (c).)
In determining whether the petitioner has made a prima
facie showing he or she is entitled to relief under section 1170.95,
subdivision (c), “[l]ike 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.”’” (Lewis, supra, 11 Cal.5th at p. 971.)
Appellate opinions are generally part of the record of
conviction, but as the Supreme Court in Lewis cautioned, the
opinion “‘might not supply all the answers.’” (Lewis, supra,
11 Cal.5th at p. 972.) Further, “[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.’” (Ibid.) Rather, at the
prima facie review stage, the court’s review is limited to “‘readily
ascertainable facts’” in the record (such as the crime of
conviction). (People v. Duchine (2021) 60 Cal.App.5th 798, 815.)
The jury instructions given by the trial court are part of the

10
record of conviction. (People v. Daniel (2020) 57 Cal.App.5th 666,
676; People v. Soto (2020) 51 Cal.App.5th 1043, 1055.)
If the petitioner makes a prima facie showing under
section 1170.95, subdivision (c), the court must issue an order to
show cause and hold a hearing “to determine whether to vacate
the murder conviction and to recall the sentence and resentence
the petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).)
If a hearing is held, “[t]he prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
Gentile, supra, 10 Cal.5th at p. 853.)

1. The major participant and reckless indifference
standards under Banks, Clark, and Scoggins
As discussed, Senate Bill 1437 amended section 189 to limit
the scope of the felony-murder rule, requiring the People to prove
beyond a reasonable doubt that the defendant “was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e)(3); see § 1170.95, subds. (a)(3) &
(d)(3).) “Penal Code section 190.2, subdivision (d), enacted by
initiative in 1990, provides that ‘every person, not the actual
killer, who, with reckless indifference to human life and as a
major participant’ aids or abets an enumerated felony, including
attempted [carjacking], that results in death may be convicted of
special circumstance murder and sentenced to death or to life
imprisonment without the possibility of parole. The statute, by
its text, imposes an actus reus requirement, major participation
in the enumerated felony, and a mens rea requirement, reckless
indifference to human life.” (In re Scoggins (2020) 9 Cal.5th 667,

11
674 (Scoggins); accord, Clark, supra, 63 Cal.4th at p. 615; Banks,
supra, 61 Cal.4th at p. 798.)
The Supreme Court in Banks, Clark, and Scoggins
enumerated the factors courts must consider in determining
whether the totality of circumstances demonstrates a defendant
was a major participant in the murder and acted with reckless
indifference to human life for purposes of liability for felony
murder rule and section 190.2, subdivision (d). In Banks, the
Supreme Court identified the relevant factors in determining
whether a defendant is a major participant: “What role did the
defendant have in planning the criminal enterprise that led to
one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the
defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the
killing, in a position to facilitate or prevent the actual murder,
and did his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was
used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted; accord,
Clark, supra, 63 Cal.4th at p. 611.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court specified the following relevant
factors: “Did the defendant use or know that a gun would be
used during the felony? How many weapons were ultimately
used? Was the defendant physically present at the crime? Did
he or she have the opportunity to restrain the crime or aid the
victim? What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for

12
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra,
61 Cal.4th at p. 803.)
As the Scoggins court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins,
supra, 9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at
p. 808 [“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire
that death as the outcome of his actions.’” (Scoggins, at pp. 676-
677, quoting Clark, supra, 63 Cal.4th at p. 617.)

2. The jury’s 1996 special circumstance finding did not
make Ortega ineligible for relief as a matter of law
In People v. Harris (2021) 60 Cal.App.5th 939, 954-958,
review granted April 28, 2021, S267802 (Harris), we rejected the
argument made by the People here that a petitioner is ineligible
for relief based on a jury’s pre-Banks/Clark felony-murder
special-circumstance finding absent a successful challenge to the
evidentiary support for the finding by a petition for writ of
habeas corpus. We also held in Harris that although the jury
could only find true the special circumstance allegation under

13
section 190.2, subdivisions (a)(17) and (d), if it found the
defendant aided and abetted the underlying felony while acting
as a major participant with reckless indifference to human life—
the same elements now required to show malice under
section 189, subdivision (e)(3)—“that pre-Banks/Clark finding,
without more, does not preclude relief under section 1170.95.”
(Harris, at p. 957.) As we explained, “Because the evidence
supporting Harris’s special circumstance finding has never been
reviewed under the standards set forth in Banks and Clark, the
superior court could properly determine he was ineligible for
relief as a matter of law only after reviewing the available record
of conviction in light of the Banks and Clark factors.” (Harris, at
p. 958)
The Attorney General argues our decision in Harris, supra,
60 Cal.App.5th 939 and other cases that reached the same
conclusion were wrongly decided, and we should instead follow
the holding to the contrary in People v. Galvan, supra,
52 Cal.App.5th at pages 1141 to 1144, review granted Oct. 14,
2020, S264284 and its progeny. The Attorney General has not
presented a persuasive reason why we should reject our decision
in Harris, and we decline to do so.

3. The trial court erred in engaging in premature
factfinding
The superior court engaged in improper factfinding in
making its alternative finding that Ortega was a major
participant who acted in reckless disregard for life. The court
relied on the fact Ortega admitted he was the driver of the van
that blocked the Toyota’s path and the court’s determination the
robbery-murder must have been “part of a well-coordinated plan”

14
given that the crimes occurred immediately after Ortega drove in
front of the Toyota. Further, as the Attorney General points out
on appeal, the court found Ortega knew the shooter had a gun
because he admitted he yelled to his accomplice, “Don’t shoot
him.”
Although Hernandez testified the van stopped in front of
the Toyota and blocked its path, Alvarado testified he observed
the Toyota pull up behind the van, which was already stopped at
the intersection. Thus, there is a disputed fact whether Ortega,
as the driver of the van, blocked the Toyota’s path (as described
by Hernandez) or was sitting at an intersection when the Toyota
pulled up behind the van and the shooter emerged and forced the
driver out of the Toyota, then shot him (as described by
Alvarado). Further, the superior court focused on the fact
Ortega, by yelling out not to shoot the driver, was admitting he
knew one of his accomplices had a gun. But the court ignored
Ortega’s statements to Detective Ortiz that he did not know the
occupants of the van were going to carjack the Toyota or commit
the other crimes, and once Ortega figured this out, he yelled at
the shooter not to shoot the driver. Further, Ortega’s statement
was consistent with Hernandez’s testimony that the driver of the
van (Ortega) said “let’s go, let’s go” before the shooting occurred.
Although it is relevant under Banks and Clark for purposes of
evaluating whether a defendant acts with reckless disregard for
human life that a defendant knows the shooter has a gun, it is
also significant whether the defendant knew it was likely lethal
force would be used and whether he or she made any effort to
minimize the risks of violence during the crime. (Scoggins,
supra, 9 Cal.5th at p. 677; Clark, supra, 63 Cal.4th at pp. 618-
622.)

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 The superior court’s factfinding, in accepting Hernandez’s
version of events over Alvarado’s and only portions of Ortega’s
statements to Detective Ortiz, was the type of factfinding
prohibited at the prima facie review stage. (Lewis, supra,
11 Cal.5th at p. 971; see People v. Duchine, supra, 60 Cal.App.5th
at p. 815.) Further, in reviewing Ortega’s petition, the court was
required to take Ortega’s factual allegations as true (including
that he was not a major participant and did not act with reckless
indifference to human life), and the court erred in rejecting these
factual allegations without first holding an evidentiary hearing.
(Lewis, at p. 971.)
DISPOSITION

The order denying Ortega’s petition for resentencing under
section 1170.95 is reversed. We remand for the superior court to
issue an order to show cause and to hold an evidentiary hearing
under section 1170.95, subdivision (d).

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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