Filed 6/17/22 P. v. Ortega CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B311073
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA223544)
v.
JUAN MANUEL ORTEGA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Charlaine F. Olmedo, Judge. Reversed and Remanded.
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,
Daniel Chang and Colleen M. Tiedemann, Deputy Attorneys General,
for Plaintiff and Respondent.
INTRODUCTION
This is an appeal from the denial of appellant Juan Manuel
Ortega’s petition for resentencing under Penal Code section 1170.95.1
In 2004, Ortega was convicted of seven substantive offenses, including
two counts of special circumstance murder (§ 187, subd. (a), counts 1 &
2), the only offenses at issue in this appeal. As to count 1, the jury
found true the special circumstance allegations of multiple murder
(§ 190.2, subd. (a)(3)) and that the murder was committed in the
commission of carjacking and kidnapping (§ 190.2, subd. (a)(17)). As to
count 2, the jury found true the special circumstance allegations of
multiple murder (§ 190.2, subd. (a)(3)) and that the murder was
committed in the commission of kidnapping (§ 190.2, subd. (a)(17)).
In 2006, this court modified Ortega’s sentence and affirmed his
conviction in all other respects. (See People v. Ortega (Mar. 30, 2006,
B173836) [nonpub. opn.] (Ortega I).)
In May 2019, Ortega filed a verified petition for resentencing
under section 1170.95, which provides that persons who were convicted
under theories of felony murder or murder under the natural and
probable consequences doctrine, and who could no longer be convicted of
murder following the enactment of Senate Bill No. 1437 (S.B. 1437),
may petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (Stats. 2018, ch. 1015, § 1, subd.
(f).)
1 All further statutory references are to the Penal Code unless otherwise
stated.
2
Following appointment of counsel and briefing by the parties, on
February 10, 2021, the court issued a written ruling summarily denying
Ortega’s petition. In so ruling, the court stated that Ortega was
ineligible for relief as a matter of law. On the same date, the People
filed a supplemental brief withdrawing its opposition to Ortega’s
position at the prima facie stage of review under the reasoning set forth
in People v. Torres (2020) 46 Cal.App.5th 1168 (Torres), review granted
June 24, 2020, S262011, overruled on another ground in People v. Lewis
(2021) 11 Cal.5th 952 (Lewis); People v. Smith (2020) 49 Cal.App.5th 85
(Smith), review granted, July 22, 2020, S262835; People v. York (2020)
54 Cal.App.5th 250 (York), review granted November 18, 2020,
S264954. These cases hold that a jury’s true finding under the felony-
murder special circumstance statute (§ 190.2, subd. (a)(17)), made
before the Supreme Court decided People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), cannot
preclude eligibility for relief under section 1170.95 as a matter of law.
(York, supra, at p. 258, Torres, supra, at p. 1173; Smith, supra, at p. 93.)
On appeal from the trial court’s order, Ortega contends that the
People are bound by the withdrawal of their opposition to Ortega’s
position at the prima facie stage of review. He further contends that a
felony-murder special circumstance finding does not establish
ineligibility for relief as a matter of law and requests that we apply the
Torres line of cases.
Despite the People’s change in position in the trial court, the
Attorney General contends on appeal that the Torres line of cases was
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incorrectly decided, and that People v. Galvan (2020) 52 Cal.App.5th
1134 (Galvan) and its progeny should control our analysis. In Galvan,
the court of appeal held that a felony-murder special circumstance
finding predating Banks and Clark precludes relief under section
1170.95 as a matter of law. (Id. at pp. 1141–1143.) The Attorney
General also asserts that even if the Torres line of cases is correct,
Ortega is still ineligible for relief because his actions rise to the level of
major participation and reckless indifference under Banks and Clark.
Consistent with our prior decisions on the issue, we reverse the
trial court’s order in light of the Torres line of cases. We also refrain
from engaging, in the first instance, in the factfinding necessary to
determine major participation and reckless indifference under the
standards established by Banks and Clark. We reverse the order
summarily denying Ortega’s petition and direct the court to issue an
order to show cause and proceed consistent with section 1170.95,
subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
We recite the factual background from Ortega I. The principal
witness in the case was a drug seller who used the name Juan Perez.
His actual name is Ivan Sanchez, and we use that name in this
summary even though the briefing refers to him as Perez.
In August 2001, Sanchez’s drug supplies were running low and he
needed to replenish. He contacted another drug seller, Santo Pleitez,
who agreed to try to find a drug supplier. Pleitez came up with a third
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person, later identified as Samuel Nolasco, who agreed to take Sanchez
and Pleitez to a supplier at a particular location. On August 27, 2001,
Sanchez drove his Toyota Corolla, with Pleitez as a passenger, to a
location where they picked up Nolasco, who directed them to another
location where they would meet the drug supplier. Sanchez was
carrying $4,500 in cash to pay for the drugs he planned to buy. He told
the two men that he did not want to deal with gang members, and they
assured him that the person they were to meet was trustworthy.
They drove to a taqueria, and Nolasco indicated that he saw the
drug supplier arriving. Nolasco walked over to a parking lot and soon
returned, telling the men that they had to go to another location
because too many people were present at this one. They then drove to a
nearby restaurant. As they drove off, Nolasco pointed to a Toyota 4-
Runner that also was leaving the parking lot. The 4-Runner stopped at
a gasoline station, and the three men continued to the location
identified by Nolasco. They pulled into a parking space at that location.
The 4-Runner soon arrived and backed into another space. Nolasco
exited the Corolla and went over to the 4-Runner. He returned
suddenly, saying, “Start the car, they’re going to rob us.” Sanchez
followed that instruction and began backing out of the car space, but he
was blocked by the 4-Runner.
There were three men in the 4-Runner. One was later identified
as Ortega. He exited the 4-Runner carrying a handgun. Another man
with a handgun also exited.
Ortega went to the driver’s side of the Corolla, where Sanchez was
seated. He put the gun through the open window to Sanchez’s head,
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then reached inside and ran his hand around Sanchez’s waist. He
ordered Sanchez out of the car on threat of killing him. Sanchez exited
the vehicle and ran to the doorway of the restaurant. He saw Nolasco
trying to exit the vehicle, but the other man from the 4-Runner told him
not to get out and pushed him back inside the Corolla. That man told
Pleitez, then seated on the right side of the rear seat, to move behind
the driver’s seat. The man then got into the seat Pleitez had just
vacated. Ortega got into the driver’s seat of the Corolla and drove off.
The 4-Runner followed, driven by the third person who had remained in
that vehicle.
Sanchez asked someone at the restaurant to call the police, then
flagged down a cab, which took him to his home. He placed the $4,500
he was carrying inside the residence, then went to a police station to
report the carjacking. He did not then tell police how he happened to be
at the location where the carjacking occurred.
Later that afternoon, a Los Angeles City employee, stopped at a
traffic light, heard two gunshots, and on moving forward when the light
changed, saw a body in the roadway. The body was later identified as
that of Nolasco. Later that evening, a man in an apartment noticed a
white Lincoln parked along a freeway offramp. The interior light was
on, and the man saw a person slumped over with his wrists apparently
tied behind his back. Shortly after that, he heard a gunshot, and the
Lincoln drove off. Pleitez’s body was found in a lot by the offramp the
next day. His hands were tied behind his back; he had been shot in the
head at close range. Ortega’s fingerprint was found inside the
recovered Corolla.
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Ortega was taken into custody for the murders in November 2001.
At trial, the prosecution introduced evidence, via a gang expert, that
Ortega was a member of the Lincoln Heights gang, which was heavily
involved in selling narcotics.
While in jail Ortega was visited by his sister, Patricia Ortega.
Their visits were secretly tape recorded. Apparently suspecting as
much, they spoke in “Pig Latin,” both in English and Spanish. In one
exchange, Patricia warned Ortega not to say anything about driving the
car, and Ortega replied, “I already told them that,” but also said he told
police that he was high. They also spoke of Patricia sneaking
something into the jail for Ortega in a balloon.
By information, Ortega was charged with two counts of first
degree murder (§ 187, subd. (a), counts 1 & 2), three counts of
carjacking (§ 215, subd. (a), counts 3-5), and two counts of kidnapping
(§ 207, subd. (a), counts 6 & 7). As to count 1, the information alleged
the special circumstance allegations of multiple murder (§ 190.2, subd.
(a)(3)) and that the murder was committed in the commission of
carjacking and kidnapping (§ 190.2, subd. (a)(17)). As to count 2, the
information alleged the special circumstance allegations of multiple
murder (§ 190.2, subd. (a)(3)) and that the murder was committed in
the commission of kidnapping (§ 190.2, subd. (a)(17)). Also, numerous
enhancements were charged. Following trial, a jury convicted Ortega
on all counts. As to the murder counts, the jury found true the special
circumstance allegations, that a principal personally and intentionally
discharged a firearm which caused the victims’ deaths (§ 12022.53,
subds. (b)-(d), (e)(1)), and that the murders were committed for the
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benefit of and in association with a criminal street gang (§ 186.22, subd.
(b)(1)). The jury also found true firearm and criminal street gang
allegations as to the carjacking and kidnapping counts. Ortega was
sentenced to an overall term of life without the possibility of parole plus
165 years.
In his direct appeal, this court modified Ortega’s sentence by
striking the gang enhancements (§ 186.22, subd. (b)), and by ordering
that the abstract of judgment be amended to reflect imposition of the
middle term (rather than the upper term) for the kidnapping and
carjacking counts. In all other respects, this court affirmed the
judgment.
In May 2019, Ortega filed a verified petition for resentencing
under section 1170.95, claiming entitlement to relief because he was
convicted of two counts of first degree murder under a felony-murder
theory. Ortega also claimed he was not the actual killer. Ortega
requested that counsel be appointed on his behalf. The court appointed
counsel, the People filed an opposition, and Ortega filed a reply. The
People then filed a supplemental opposition.
On February 10, 2021, the court issued its written ruling denying
Ortega’s section 1170.95 petition. The court stated Ortega was
ineligible for relief as a matter of law because (1) he was convicted by a
jury of two counts of first degree murder with felony-murder special
circumstances, (2) he was never eliminated as one of the actual killers,
and (3) at the very least, he was a direct aider and abettor who
personally participated in every aspect of the crimes charged. The same
day, the People filed a supplemental brief withdrawing their opposition
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to the issuance of an order to show cause based on the Los Angeles
County District Attorney Office’s new policy adopting the reasoning set
forth in the Torres line of cases.2
DISCUSSION
Ortega contends the court erred by denying his section 1170.95
petition without issuing an order to show cause in reliance on the jury’s
true findings under the felony-murder special circumstance statute
(§ 190.2, subd. (a)(17)) that pre-date Banks and Clark. We agree with
his contention and decline the Attorney General’s request to engage in
factfinding in the first instance under Banks and Clark to determine if
Ortega was a major participant who acted with reckless indifference to
human life.3
1. Applicable Law
The legislature enacted S.B. 1437 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to
2 We note, as acknowledged by both parties, that the timing of the court’s
order and the People’s brief withdrawing its opposition is unclear from the
record.
3 Ortega contends that the People’s withdrawal of opposition to an order
to show cause precludes the Attorney General on appeal from contesting the
propriety of such an order. We disagree, and in any event the People’s
change of position did not obviate the trial court’s duty to determine whether
defendant made a prima facie case (taking the factual allegations in the
petition as true) for section 1170.95 relief. (People v. Drayton (2020) 47
Cal.App.5th 965, 978 (Drayton).)
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murder, to ensure that murder liability is not imposed on a person who
is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord,
§ 189, subd. (e); Lewis, supra, 11 Cal.5th at p. 959.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following the amendments to sections 188 and 189, to petition
the sentencing court to vacate the conviction and resentence on any
remaining counts. (See § 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he is
eligible for relief under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel, should
the petitioner seek appointment. (§ 1170.95, subd. (b)(1).)
Subdivision (e) of section 1170.95 provides that after the parties
submit briefing, “the court shall hold a hearing to determine whether
the petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that [he or she] is entitled to relief, the
court shall issue an order to show cause. If the court declines to make
an order to show cause, it shall provide a statement fully setting forth
its reasons for doing so.” (See also Lewis, supra, 11 Cal.5th at p. 962
[subd. (e) provides only for “a single prima facie” stage of review].)
To determine whether the petitioner has made a prima facie case
for section 1170.95 relief, the court “‘“takes petitioner’s factual
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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.”’ (Drayton, supra, 47 Cal.App.5th at p. 978, quoting Cal. Rules of
Court, rule 4.551(e)(1).) ‘[A] court should not reject the petitioner’s
factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ (Drayton, supra, at p. 978, fn. Omitted, citing In
re Serrano (1995) 10 Cal.4th 447, 456.) ‘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.”’ (Drayton, supra,
at p. 979, quoting Serrano, supra, at p. 456.)” (Lewis, supra, 11 Cal.5th
at p. 971.) “In 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.’
(Drayton, supra, . . . at p. 980.)” (Id. at p. 972.)
If the trial court determines that a prima facie showing for relief
has been made, it 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 in
the same manner as if the petitioner had not previously been
sentenced.” (§ 1170.95, subd. (d)(1).) During the evidentiary hearing,
the prosecutor and the petitioner may offer new or additional evidence
to meet their respective burdens. (§ 1170.95, subd. (d)(3).)
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2. Analysis
The parties dispute whether the jury’s felony-murder special
circumstance findings made prior to Banks and Clark preclude Ortega
from making a prima facie showing under section 1170.95, subdivision
(e). Relying on the Torres line of cases, Ortega asserts that these
findings do not preclude relief as a matter of law. The Attorney General
disagrees, and asserts that under Galvan and its progeny, the special
circumstance findings preclude Ortega from making a prima facie
showing as a matter of law.
Pending guidance from the Supreme Court on this issue, and
consistent with our prior decisions, we follow the Torres line of cases
holding that a pre-Banks and Clark special circumstance finding
“cannot preclude eligibility for relief under . . . section 1170.95 as a
matter of law, because the factual issues that the jury was asked to
resolve in a trial that occurred before Banks and Clark were decided are
not the same factual issues our Supreme Court has since identified as
controlling.” (York, supra, 54 Cal.App.5th at p. 258; accord, Smith,
supra, 49 Cal.App.5th at p. 93; Torres, supra, 46 Cal.App.5th at p.
1179.)
As amended by S.B. 1437, subdivision (e) of section 189 provides
that participation in the perpetration or attempted perpetration of an
enumerated felony (here, carjacking and kidnapping) in which a death
occurs renders a person liable for murder only if the person was the
actual killer, acted with the intent to kill as an aider and abettor, or
was a major participant in the underlying felony and acted with
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reckless indifference to human life as described in subdivision (d) of
section 190.2. Section 190.2, subdivision (d), in turn, provides for a
term of punishment by death or life imprisonment without the
possibility of parole for persons “not the actual killer, [but] who, with
reckless indifference to human life” and as major participants, aid, abet
or assist in the commission of any felony enumerated in paragraph (17)
of subdivision (a) which results in the death of some person or persons,
and who is found guilty of murder in the first degree. Subdivision
(a)(17) of section 190.2 lists carjacking and kidnapping as qualifying
felonies. (§ 190.2, subds. (a)(17)(B), (a)(17)(L).)
The special circumstance findings in this case indicate that the
jury found that Ortega, as an aider and abettor, either intended to kill
or acted with reckless indifference to human life as a major participant
in the robbery and burglary. However, because the jury rendered its
findings approximately 11 years prior to the Banks and Clark decisions
and did not specify whether Ortega acted with intent to kill, Ortega is
not precluded from showing that he could not be convicted of first
degree murder as redefined by S.B. 1437. (Torres, supra, 46
Cal.App.5th at p. 1179.)
The Attorney General asserts that the Torres line of cases was
wrongly decided and urges us instead to follow the reasoning set forth
in Galvan and its progeny. Pending resolution of this issue by the
Supreme Court, we continue to follow the Torres line of cases.
The Attorney General contends that even under the Torres line of
cases, any error by the trial court is harmless because Ortega’s “actions
13
rise to the level required by Banks and Clark.” However, the Supreme
Court has clarified that a trial court’s authority at the prima facie stage
of review is “limited,” in that it may not “engage in ‘factfinding
involving the weighing of evidence.’” (Lewis, supra, at p. 972, quoting
Drayton, supra, 47 Cal.App.5th at p. 980.) Hence, we do not read
section 1170.95 as precluding a petitioner from proffering evidence not
presented at trial to dispute whether he or she was a major participant
in the underlying felonies or acted with reckless indifference to human
life. (See § 1170.95, subd. (d)(3) [at the hearing to determine the
petitioner’s entitlement to relief, “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. . . .
The prosecutor and the petitioner may also offer new or additional
evidence to meet their respective burdens”]; Smith, supra, 49
Cal.App.5th at pp. 95–96; People v. Harris (2021) 60 Cal.App.5th 939,
959–960, & fn. 13.) We therefore decline the Attorney General’s request
to engage in factfinding in the first instance in this appeal. We reverse
the court’s order summarily denying Ortega’s petition and remand the
matter with directions to the trial court to issue an order to show cause
and hold a hearing under subdivision (d) of section 1170.95, in which
the parties may introduce new or additional evidence to meet their
respective burdens.
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DISPOSITION
The order summarily denying Ortega’s section 1170.95 petition is
reversed, and the matter is remanded with directions to issue an order
to show cause and to proceed consistent with section 1170.95,
subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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