Filed 5/17/22 P. v. Ortega CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B312372
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA113572-02)
v.
EDWARD ORTEGA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Lillian Vega Jacobs, Judge. Affirmed.
John Steinberg, 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, Senior
Assistant Attorney General, Idan Ivri and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Edward Ortega, convicted of first degree murder in 2011
along with his codefendant Dennis Flores, appeals the superior
court’s denial of his petition for resentencing pursuant to Penal
Code section 1170.951 after determining Ortega had failed to
make a prima facie showing he was entitled to relief. Because
Ortega’s jury was not instructed on either the felony-murder rule
or the natural and probable consequences doctrine, the jury’s
finding of premeditation necessarily means it concluded he had
acted with express malice when committing the crime, making
Ortega ineligible for resentencing under section 1170.95 as a
matter of law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Ortega’s Conviction for First Degree Murder
Ortega and Flores were charged in an information filed
June 23, 2010 with the murder of Erick Roche, Jr. (§ 187,
subd. (a)), with special firearm-use (§ 12022.53, subds. (b), (c), (d),
(e)(1)) and criminal street gang (§ 186.22, subd. (b)) enhancement
allegations. Ortega and Flores were jointly tried before separate
juries.2
The People’s evidence at trial established that Felicia
Cleaver was driving her car with Guadalupe Adame and Flores
on the night of November 19, 2009 when they saw Roche. Asked
by Flores where Roche was from (meaning what was his gang
affiliation), Adame, who knew Roche from high school, said he
was from a tagging crew associated with the Pico Nuevo criminal
1 Statutory references are to this code.
2 Flores’s jury, but not Ortega’s, heard Flores’s audiotaped
statements to police officers concerning the crime. Flores
identified Ortega as the shooter.
2
street gang. She did not know if he had been admitted to Pico
Nuevo.
After picking up Ortega, Cleaver and her passengers again
saw Roche. Cleaver testified that Flores told her to stop the car,
let him and Ortega out and return in a few minutes. Cleaver had
heard someone from the rear seats, where Ortega and Flores
were sitting, say, “We’re going to hit him up.” When the men
returned to the car, Flores was holding a gun. One of the men
said, “We got him.”
Adame testified Cleaver had stopped the car near an alley.
She saw Flores and Ortega chase Roche into the alley, heard the
word “Peanut” (a derogatory term for the Pico Nuevo gang) and
two gunshots. When Ortega and Flores returned to the car,
Flores said they had “hit up” Roche, who had said “he wasn’t from
nowhere.”
Two neighbors testified they heard two gunshots and saw
two young men run from the alley to a car waiting nearby.
Roche’s body was found in an alley in an area within the
territory of the Pico Nuevo gang. He died from gunshot wounds
to the head.
The prosecution presented evidence that Rivera 13 and Pico
Nuevo were rival gangs in the City of Pico Rivera with a long
history of animosity, including numerous shootings. The People’s
gang expert testified Flores was a member of Rivera 13 and, in
his opinion, Ortega was an associate of the gang.
Ortega presented an alibi defense. His girlfriend testified
Ortega was with her all day and night on November 19, 2009. In
rebuttal a homicide detective testified the girlfriend had not
given the alibi when she was interviewed in February 2010. She
first mentioned it in January 2011.
3
The trial court instructed the juries on murder using, in
part, CALJIC Nos. 8.00 (Homicide—Defined), 8.10 (Murder—
Defined), 8.11 (“Malice Aforethought”—Defined) and 8.20
(Deliberate and Premeditated Murder), as well as instructions on
second degree murder and voluntary manslaughter. As pertinent
to Ortega’s current appeal, his jury was instructed pursuant to
CALJIC 8.11 that “‘Malice’ may be either express or implied. [¶]
Malice is express when there is manifested an intention
unlawfully to kill a human being. [¶] Malice is implied when: [¶]
1. The killing resulted from an intentional act; [¶] 2. The natural
consequences of the act are dangerous to human life; and [¶]
3. The act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life.” The
jury was also instructed, pursuant to CALJIC No. 8.20, “All
murder which is perpetrated by any kind of willful, deliberate
and premeditated killing with express malice aforethought is
murder of the first degree,” with the court defining the terms
“willful,” “deliberate” and “premeditated.”
With respect to accomplice liability, in addition to CALJIC
Nos. 3.00, 3.01 and 3.10, defining “principal,” “aiding and
abetting,” and “accomplice,” the court instructed pursuant to
CALJIC No. 3.14 that “[m]erely assenting to or aiding or
assisting in the commission of a crime without knowledge of the
unlawful purpose of the perpetrator and without the intent or
purpose of committing, encouraging or facilitating the
commission of the crime is not criminal.” There were no
instructions on the felony-murder rule (e.g., CALJIC Nos. 8.21,
8.27) or the natural and probable consequences doctrine (e.g.,
CALJIC No. 3.02).
4
Ortega and Flores were both convicted of first degree
premeditated murder with true findings that the murder had
been committed for the benefit of a criminal street gang. Ortega’s
jury found true the allegation a principal had personally used
and intentionally discharged a firearm causing death. Flores’s
jury found not true the allegation he had personally used and
intentionally discharged a firearm causing death, but found true
that a principal had used a firearm in that manner. Each man
was sentenced to an aggregate indeterminate state prison term of
50 years to life. We affirmed the judgments on appeal. (People v.
Ortega (Oct. 3, 2012, B231422) [nonpub. opn.]; People v. Flores
(Oct. 3, 2012, B234019 ) [nonpub. opn.].)
2. Ortega’s Petition for Resentencing
In March 2019 Ortega, representing himself, filed a
petition for resentencing pursuant to section 1170.95. Ortega
checked boxes on the printed form petition to establish his
eligibility for resentencing relief, including the boxes stating he
had been convicted of first or second degree murder pursuant to
the felony-murder rule or the natural and probable consequences
doctrine and could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189 by
Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437).
The court granted Ortega’s request for appointment of
counsel. The prosecutor filed a memorandum opposing the
petition on constitutional grounds. Ortega’s appointed counsel
filed reply memoranda addressing the constitutionality of Senate
Bill 1437 and arguing the petition established a prima facie case
for relief requiring the court to issue an order to show cause and
hold an evidentiary hearing on Ortega’s request to be resentenced
even though no felony-murder or “independent natural and
5
probable consequence” instruction had been given at Ortega’s
trial.
At a hearing on April 12, 2021 to determine whether
Ortega had made a prima facie case for relief, the court confirmed
the People had withdrawn their opposition to the petition on
constitutional grounds. The court then described its
understanding of the case “having reviewed the record of
conviction.” The court indicated its tentative ruling was to find
that Ortega had not made a prima facie showing because Ortega,
not Flores, shot Roche and also because Ortega’s jury had not
been instructed on the felony-murder rule or the natural and
probable consequences doctrine.
After hearing argument of counsel, the superior court
denied the petition. Explaining its ruling, the court stated, “And
the facts as I read them [earlier in the hearing] come straight out
of the appellate opinion where the appellate opinion indicates
that they deemed Ortega to be the shooter. But in any event, as I
indicated, those instructions that [Ortega’s counsel] indicated
were not given to the jury, they were not instructed on felony
murder and they were not instructed under the natural and
probable consequences doctrine. So I am going to deem that a
prima facie showing has not been made showing that petitioner is
entitled to relief for the reasons I indicated.”
Ortega filed a timely notice of appeal.
6
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e); see People v. Lewis (2021) 11 Cal.5th
952, 957 (Lewis).) It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
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 because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, at p. 957; Gentile, at
p. 843.)
As amended by Senate Bill No. 775 (Stats. 2021, ch. 551,
§ 2) (Senate Bill 775), effective January 1, 2022, the ameliorative
provisions of Senate Bill 1437 now also apply to attempted
murder and voluntary manslaughter. Section 1170.95,
subdivision (a), as amended, provides, “A person convicted of
felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed on a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable
consequences doctrine or manslaughter” may file a petition to
have that sentence recalled and to be resentenced on any
remaining counts if the other conditions of section 1170.95 apply.
7
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must
appoint counsel to represent the petitioner, if requested
(§ 1170.95, subd. (b)(3)), and direct the prosecutor to file a
response to the petition, permit the petitioner to file a reply and
determine if the petitioner has made a prima facie showing that
he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. 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. . . . 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
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
8
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).) The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Gentile, supra, 10 Cal.5th at
pp. 853-854.)
2. Ortega Is Ineligible for Resentencing Relief as a Matter of
Law
To reiterate, section 1170.95 permits resentencing relief for
individuals found guilty of murder only if they were convicted of
felony murder, murder under the natural and probable
consequences doctrine “or other theory under which malice is
imputed to a person based solely on the person’s participation in
a crime.” Here, the record of conviction, properly considered to
determine whether Ortega made a prima facie showing he is
entitled to resentencing relief, as held in Lewis, supra, 11 Cal.5th
at page 971, established that Ortega was neither tried nor
convicted under any of those now-invalid theories of accomplice
liability. Based on the instructions given and the guilty verdict
on first degree, premeditated murder, the jury necessarily found
that Ortega, whether the shooter or a direct aider and abettor,
acted with express malice. Malice was not imputed to him. As
such, he was ineligible for resentencing relief as a matter of law,
and his petition for resentencing was properly denied without
issuance of an order to show cause.
Without disputing that neither a felony-murder nor a
natural and probable consequences instruction was given at his
trial, Ortega nonetheless insists the superior court erred in
finding he failed to make a prima facie showing of entitlement to
9
resentencing relief, arguing that, in ruling he was Roche’s actual
killer, the superior court improperly relied on the factual
summary in our opinion affirming Ortega’s conviction and
engaged in impermissible factfinding at the prima facie stage of
the section 1170.95 process. The Supreme Court in Lewis not
only said it was proper at the prima facie stage for the superior
court to look at the record of conviction in determining whether a
petitioner has carried the burden of making a prima facie
showing he or she falls within the provisions of section 1170.95
(Lewis, supra, 11 Cal.5th at p. 971) but also observed that
appellate opinions “are generally considered to be part of the
record of conviction.” (Id. at p. 972.) Ortega, however, contends
Senate Bill 775’s amendments to section 1170.95 now preclude
any reliance on factual summaries in a prior appellate decision
affirming the murder conviction.
Among its other changes to section 1170.95, Senate Bill 775
expanded subdivision (d)(3)’s language concerning the conduct of
the hearing to determine whether the petitioner is entitled to
relief after issuance of an order to show cause. Section 1170.95,
subdivision (d)(3), now provides, in part, “The admission of
evidence in the hearing shall be governed by the Evidence Code,
except that the court may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural
history of the case recited in any prior appellate opinion.”
Ortega contends that, by expressly allowing the superior
court at the evidentiary hearing to consider the appellate
opinion’s description of the procedural history of the case, Senate
Bill 775 implicitly prohibited the consideration of the appellate
10
court’s factual summary of the case. He additionally contends
that, although this provision regarding use of a prior appellate
opinion is in subdivision (d)(3) detailing evidentiary requirements
at the hearing after issuance of an order to show cause, given
Senate Bill 775’s purpose of expanding the rights of petitioners,
we should infer the Legislature also intended the same limitation
be applied to a determination under subdivision (c) concerning
the petitioner’s required prima facie showing. “If the Legislature
had intended to allow the trial court to use hearsay in the prior
record on appeal, including the factual summary of the prior
opinion, at the prima facie stage,” Ortega insists, “it would have
clearly so stated.”
The Attorney General disagrees with both aspects of
Ortega’s subdivision (d)(3) argument. The language at issue
expressly authorizing use of the procedural history of the case as
recited in a prior appellate opinion, the Attorney General argues,
does not impliedly prohibit use of other portions of the opinion,
including the factual summary, provided they meet the express
evidentiary requirements of subdivision (d)(3). And even if there
were an implied prohibition, it would apply only at the
evidentiary hearing following issuance of an order to show cause,
not at the prima facie stage, where such use was authorized by
Lewis.
Because we affirm the superior court’s order based on the
jury’s necessary finding that Ortega had acted with express
malice, not the court’s reliance on our opinion on direct appeal,
we defer to another day expressing any view on these issues.3
3 As the Attorney General correctly explains, whether the
superior court erred in determining Ortega was Roche’s actual
killer based on its reading of our prior opinion is immaterial
11
(See generally People v. Clements (2022) 75 Cal.App.5th 276, 292
[the “specificity” of Senate Bill 775’s amendment of
section 1170.95, subdivision (d)(3), “indicates the Legislature has
decided trial judges should not rely on the factual summaries
contained in prior appellate decisions when a section 1170.95
petition reaches the stage of a full-fledged evidentiary hearing”].)
Ortega next argues the court’s instruction on implied
malice with CALJIC No. 8.11 was equivalent to a natural and
probable consequences instruction and permitted the jury to
convict him on a now-prohibited theory of imputed malice. This
argument is doubly flawed. First, Ortega is incorrect that an
aspect of the definition of implied malice—the killing resulted
from an intentional act, the natural and probable consequences of
which were dangerous to human life4—is the equivalent of a
because the court’s second reason for ruling Ortega had failed to
make the required prima facie showing—there were no felony-
murder or natural and probable consequences instructions, and
Ortega could not have been convicted on a now-invalid theory of
imputed malice—is sufficient to affirm the order denying
Ortega’s petition. (See Conservatorship of McQueen (2014)
59 Cal.4th 602, 612 [“a trial court’s order will ordinarily be
upheld if it is legally correct on any basis”]; People v. Smithey
(1999) 20 Cal.4th 936, 972 [“[A] ruling or decision, itself correct in
law, will not be disturbed on appeal merely because given for a
wrong reason. If right upon any theory of the law applicable to
the case, it must be sustained regardless of the considerations
which may have moved the trial court to its conclusion”; internal
quotation marks omitted].)
4 As defined by CALJIC No. 8.11, the act must also be
deliberately performed with knowledge of its danger to, and
conscious disregard for, human life. (See also CALCRIM
No. 520.)
12
natural and probable consequences instruction within the
meaning of Senate Bills 1437 and 775. As we held in People v.
Mancilla (2021) 67 Cal.App.5th 854, a case involving a finding of
implied malice as an element of provocative act murder,
“‘[M]urder includes both actus reus and mens rea elements. To
satisfy the actus reus element of murder, the act of either the
defendant or an accomplice must be the proximate cause of
death.’ Consideration of the natural and probable consequence of
the defendant’s conduct in the context of provocative murder, as
with any case of implied malice murder, relates to proximate
cause—that is to the actus reus element of the crime, not the
mens rea element that was the focus of Senate Bill 1437.” (Id. at
p. 868, fn. omitted.) A finding of implied malice murder does not
involve a now-prohibited imputation of malice. (See Gentile,
supra, 10 Cal.5th at p. 850 [“notwithstanding Senate Bill 1437’s
elimination of natural and probable consequences liability for
second degree murder, an aider and abettor who does not
expressly intend to aid a killing can still be convicted of second
degree murder if the person knows that his or her conduct
endangers the life of another and acts with conscious disregard
for life”].)
Second, as discussed, by finding him guilty of first degree,
premeditated murder, Ortega’s jury necessarily found Ortega had
acted with express, not implied, malice during the fatal shooting
of Roche, whether he was the actual killer or a direct aider and
abettor. The petition for resentencing was properly denied at the
prima facie stage.
13
DISPOSITION
The postjudgment order denying Ortega’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
14