Filed 7/5/22 P. v. Ortega CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312561
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA053938)
v.
JAIME ORTEGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Juan Carlos Dominguez, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Thomas T. Ono, 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, Scott A. Taryle and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________________
Jaime Ortega appeals from an order denying his petition
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for resentencing under Penal Code section 1170.95. A jury
previously convicted Ortega of two counts of attempted murder in
violation of sections 664 and 187, subdivision (a), and one count
of murder in violation of section 187, subdivision (a). We
affirmed those convictions on direct appeal. (People v. Juan C.
Rodriguez et. al. (Aug. 18, 2004, B160212) [nonpub. opn.]
(Rodriguez).)
The trial court denied Ortega’s petition for resentencing
these convictions at the prima facie stage, without appointing
counsel, after finding Ortega ineligible for relief under section
1170.95 as a matter of law. The trial court determined that the
record of conviction established that Ortega was the actual killer
on the murder conviction and that section 1170.95 relief did not
apply to the attempted murder convictions. Ortega timely
appealed.
We affirm as to the murder conviction. The record shows
that Ortega is not eligible for resentencing of his murder
conviction as a matter of law because he was the actual killer.
The error committed by the trial court in not appointing Ortega
counsel, as required by People v. Lewis (2021) 11 Cal.5th 952
(Lewis), was harmless.
We reverse as to the attempted murder convictions. Since
the trial court’s decision, the Governor signed into law Senate
Bill No. 775 (2020–2021 Reg. Sess.). Effective January 1, 2022,
Senate Bill No. 775 amended section 1170.95 to include
1 Undesignated statutory references herein are to the Penal
Code.
2
individuals convicted of attempted murder under the natural and
probable consequences doctrine. (Stats. 2021, ch. 551, § 2.) We
remand for further proceedings on Ortega’s attempted murder
convictions.
BACKGROUND
A. Factual Background
These facts are taken from our 2004 decision affirming
Ortega’s conviction. (Rodriguez, supra, B160212.)2 “Rodriguez
and Ortega are members of the El Monte Flores gang. . . . [¶] On
August 30, 2001, [at approximately 1:00 a.m.] Ortega drove
Rodriguez and two other confederates in a Chevrolet Lumina. . . .
Someone in Rodriguez’s vehicle shot five or six times, hitting and
critically injuring Tapia.” (Id. at p. 2.)
“On August 30, 2001, at approximately 2:00 a.m.,
Rodriguez and Ortega were passengers in the same Chevrolet
Lumina that they were in an hour earlier. Rodriguez yelled
‘Northside Bolen’ to Robert Garcia and Eva Ruiz, who were
sitting outside a donut shop. Garcia responded ‘Northside
Monte.’ The driver of the Chevrolet Lumina made a u-turn and
Rodriguez and Ortega exited the vehicle. Garcia was shot fatally.
Ortega was holding a gun.” (Rodriguez, supra, B160212 at p. 3.)
“A jury found both Ortega and Rodriguez guilty of murder
and two counts of attempted murder. The jury found the
allegation that a principal personally and intentionally
discharged a firearm to be true with respect to each crime and
that the discharge caused great bodily injury to Tapia and great
2 We grant Ortega’s unopposed request to take judicial notice
of our prior opinion. (Evid. Code, §§ 452, subd. (d), 459.)
3
bodily injury and death to Garcia. The jury found that Ortega
personally and intentionally discharged a firearm which caused
great bodily injury and death to Robert Garcia.” (Rodriguez,
supra, at p. 6.)
“The court sentenced both Ortega and Rodriguez to three
indeterminate terms of 25 years to life, plus two life terms, each
with the possibility of parole, plus a twenty-year determinate
term.” (Rodriguez, supra, at p. 7.)
The record on appeal contains the jury’s verdict, which, in
relevant part, states: “We further find the allegation that said
defendant, JAIME ORTEGA personally and intentionally
discharged a firearm, a handgun, which proximately caused great
bodily injury and death to ROBERT GARCIA within the meaning
of Penal Code Section 12022.53(d) to be TRUE.”
B. Procedural Background
In 2004, this court affirmed the judgment of convictions.
(Rodriguez, supra, B160212.)
In 2018, the Legislature passed and the Governor approved
Senate Bill No. 1437 (2017–2018 Reg. Sess.), which came into
effect January 1, 2019. Section 1170.95 was enacted as part of
the legislative changes effected by Senate Bill No. 1437. (Stats.
2018, ch. 1015, § 4.)
In March 2021, Ortega filed a petition for resentencing
pursuant to section 1170.95. In April 2021, the trial court denied
the petition at the prima facie stage without appointing counsel.
The court found Ortega was ineligible for relief as a matter of
law. Ortega filed a timely notice of appeal.
4
In October 2021, while this appeal was pending, the
Governor signed into law Senate Bill No. 775 (2020–2021 Reg.
Sess.). Effective January 1, 2022, Senate Bill No. 775 amends
section 1170.95 to cover certain attempted murder convictions.
(Stats. 2021, ch. 551, § 2.) Both parties addressed Senate Bill
No. 775’s effect on this matter in their briefing.
C. Request for Judicial Notice and Jury Instructions
Ortega has filed a request for judicial notice requesting
that we take notice of the direct appeal filed in People v. Juan C.
Rodriguez et al., supra, B160212. We grant that request.3 That
file contains jury instructions relevant to Ortega’s arguments in
this appeal.
First, it contains an instruction to the jury on attempted
murder on a natural and probable consequences theory.
Second, it contains a jury instruction titled “Intentional
and Personal Discharge of Firearm/Great Bodily Injury,” which
states in relevant part: “It is alleged [in Count[s] 4] that the
defendant[s] Jaime Ortega intentionally and personally
discharged a firearm [and [proximately] caused [death] to a
person] [other than an accomplice] during the commission of the
crime[s] charged. [¶] If you find the defendant[s] Jaime Ortega
guilty of [one or more] of the crime[s] thus charged, you must
determine whether the defendant[s] Jaime Ortega intentionally
and personally discharged a firearm [and [proximately] caused
3 We grant Ortega’s unopposed request to take judicial notice
of the record in case No. B160212. (Evid. Code, § 459; Cal. Rules
of Court, rule 8.252(a).) The trial court took judicial notice of the
record in case No. B160212.
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[death] to a person] [other than an accomplice] in the commission
of [that] [felony].”
Third, under the title of “Intentional and Personal
Discharge of Firearm/Great Bodily [Injury] by a Principal,” it
reads: “It is alleged [in Count[s] 2, 3 & 4 ] that a principal
intentionally discharged a firearm [and [proximately] caused
[great bodily injury] [or] [death] to a person] [other than an
accomplice] during the commission of the crime[s] charged. [¶] If
you find the defendant[s] guilty of [one or more of] the crime[s]
thus charged, you must determine whether a principal
intentionally discharged a firearm [and [proximately] caused
[great bodily injury] [or] [death] to a person][other than an
accomplice] in the commission of [that] [those] [felony] [felonies].”
Finally, there is an instruction on the definition of
“principals,” stating: “Persons who are involved in [committing]
[or] [attempting to commit] a crime are referred to as principals
in that crime. Each principal, regardless of the extent or manner
of participation is equally guilty. Principals include:
1. Those who directly and actively [commit] [or] [attempt to
commit] the act constituting the crime, or
2. Those who aid and abet the [commission] [or] [attempted
commission] of the crime.”
DISCUSSION
A. Applicable Law
On January 1, 2019, Senate Bill No. 1437 took effect
“ ‘to amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to 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
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indifference to human life.’ ” (Lewis, supra, 11 Cal.5th at p. 959.)
Senate Bill No. 1437 amended sections 188 and 189 and added
section 1170.95, which provides a procedure for individuals
convicted of murder who could not be convicted under the law as
amended to retroactively seek relief. (Lewis, supra, 11 Cal.5th at
p. 957.)
Section 1170.95 also created a procedure whereby
individuals convicted of murder under the now-invalid natural
and probable consequences doctrine or felony murder rule may
petition to vacate their convictions and to be resentenced. First,
it created a three-part eligibility test: (1) the defendant must
have been charged with murder by means of a charging document
that allowed the prosecution to proceed under a theory of felony
murder or under the natural and probable consequences doctrine;
(2) the defendant must have been convicted of first or second
degree murder; and (3) the defendant could no longer be
convicted of first or second degree murder due to changes to
sections 188 and 189 effectuated by Senate Bill No. 1437.
(§ 1170.95, subd. (a).)
Next, it required that a petition for relief under
section 1170.95 must include a declaration that the petitioner is
eligible for relief based on meeting these above requirements, the
superior court case number, the year of conviction, and a
statement as to whether the petitioner requests the appointment
of counsel. (§ 1170.95, subd. (b)(1)(A)–(C).) “Where the petition
complies with section 1170.95 subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess
whether the petitioner has made ‘a prima facie showing’ for
relief.” (Lewis, supra, 11 Cal.5th at p. 960, citing § 1170.95,
subd. (c).)
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If the court determines the petitioner has made a prima
facie showing of eligibility for relief, it must issue an order to
show cause. (§ 1170.95, subd. (c).) If the parties do not stipulate
that the petitioner is entitled to relief at that point, then the
court must hold a hearing and vacate the murder conviction if the
prosecution fails to prove that the petitioner is ineligible for relief
beyond a reasonable doubt. (§ 1170.95, subd. (d).)
On October 5, 2021, the Governor signed into law Senate
Bill No. 775 (2020–2021 Reg. Sess.), which expanded the section
1170.95 petition process to include individuals convicted of
“attempted murder under the natural and probable consequences
doctrine.” (Stats. 2021, ch. 551, § 2.) It became effective January
1, 2022.
B. Ortega Is Ineligible for Resentencing of His Murder
Conviction as a Matter of Law
Ortega argues that the trial court erred in denying his
petition for resentencing of his murder conviction when it
determined that he was ineligible for relief because he was the
actual killer, citing the jury’s verdict and our prior decision in
this matter. Ortega claims that to reach this conclusion, the trial
court engaged in impermissible fact finding and that it was not
entitled to rely on our prior decision for anything but the
procedural history of the case. Ortega also asserts that the jury
instructions were inconsistent as to whether he or his
codefendant was the actual killer, so the trial court could not rely
on the record of conviction as a matter of law. We disagree on all
accounts.
At the prima facie review stage, the court should deny a
section 1170.95 petition if the petitioner is ineligible for relief as
a matter of law. (Lewis, supra, 11 Cal.5th at pp. 970–971; People
8
v. Mancilla (2021) 67 Cal.App.5th 854, 864–865 (Mancilla).)
To make this determination, the court looks to the record of
conviction: “The record of conviction will necessarily inform the
trial court’s prima facie inquiry under section 1170.95, allowing
the court to distinguish petitions with potential merit from those
that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
Previous appellate opinions in the same matter are “generally
considered to be part of the record of conviction,” but the
“probative value” is “case specific.” (Id. at p. 972.) There is
nothing in Lewis that limits the probative value of previous
appellate opinions to the procedural history of a case. (Ibid.)
Jury instructions are also part of the record of conviction. (People
v. Soto (2020) 51 Cal.App.5th 1043, 1055.) Courts may also rely
on jury verdicts in the prima facie inquiry under section 1170.95.
(See Mancilla, supra, 67 Cal.App.5th at p. 867.)
At the prima facie stage, the trial court may not engage in
factfinding involving the weighing of evidence or the exercise of
discretion. (Lewis, supra, 11 Cal.5th at p. 972.)
The record of conviction supports the trial court’s
determination that Ortega is ineligible for relief as to his murder
conviction because he was not convicted of felony murder or
murder as an aider or abettor under a natural and probable
consequences theory. (§ 1170.95, subd. (a)(3).) Instead, the jury
explicitly found true that he was the actual murderer, returning
a verdict form stating: “JAIME ORTEGA personally and
intentionally discharged a firearm, a handgun, which
proximately caused great bodily injury and death to ROBERT
GARCIA within the meaning of Penal Code Section
12022.53(d) . . . .” A defendant who was convicted based on a
record demonstrating that he was the actual killer is ineligible
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for resentencing under section 1170.95. (People v. Cornelius
(2020) 44 Cal.App.5th 54, 58 (Cornelius); accord, People v.
Tarkington (2020) 49 Cal.App.5th 892, 899, disapproved of on
other grounds by Lewis, supra, 11 Cal.5th at p. 962 [“The verdict
form contains the jury’s finding that Tarkington personally used
a deadly and dangerous weapon, a knife. In short, the record
shows that as a matter of law, Tarkington was the actual
killer . . . .”].) In Cornelius, our colleagues in the Second District,
Division Six, held that a defendant was not eligible for relief
because the jury convicted him of second degree murder and
found true that he personally and intentionally used a firearm to
commit the crime. “Thus, the jury implicitly found Cornelius was
the ‘actual killer,’ and the changes to sections 188 and 189 are
inapplicable.” (Cornelius, supra, 44 Cal.App.5th at p. 58.) The
same is true here, except that the verdict here was explicit that
Ortega used a firearm to kill Garcia.
There is no evidence that the trial court engaged in any
impermissible fact finding in reaching its conclusion. It was
entitled to rely on the record of conviction, including the jury’s
verdict and our previous decision citing this verdict.
(Mancilla, supra, 67 Cal.App.5th at p. 867; Cornelius, supra,
44 Cal.App.5th at p. 58.) In citing these parts of the record as the
basis for its decision, the trial court did not weigh any evidence
nor assess the credibility of any witnesses.
Ortega’s claim that the jury instructions were inconsistent,
so the trial court could not reach its conclusion without weighing
evidence, is without merit. Ortega argues that “the jury was
never instructed to determine whether appellant alone or a
principal alone or both personally shot Robert Garcia.” This is
not supported by the record. As detailed above, the trial court
10
instructed the jury specifically as to Ortega alone, and the jury
found Ortega used a firearm to shoot Garcia. The trial court also
instructed the jury that principals were persons who were
involved in committing a crime and included both those who
directly committed the crime and who aided and abetted the
crime. Thus, there was no inconsistency between the jury
instructions stating that it is alleged that a principal
intentionally discharged a firearm that proximately caused great
bodily injury or death,4 and the instructions stating that it is
alleged that Ortega himself discharged the firearm,5 because
Ortega could be a principal who directly committed the crime.
Ortega’s reliance on People v. Salas (2001) 89 Cal.App.4th
1275 is misplaced. In Salas, as Ortega himself admits, the jury
never found that the defendant used the firearm that killed the
victim. The jury in Salas found that a principal in the crime used
a firearm, but never found that the defendant personally used a
firearm. (Id. at pp. 1278–1279.) Here, the jury explicitly
returned a verdict form stating that Ortega used the firearm that
killed Garcia.
4 These instructions read: “It is alleged [in Count[s] 2, 3 & 4]
that a principal intentionally discharged a firearm [and
[proximately] caused [great bodily injury] [or] [death] to a
person] . . . .”
5 These instructions read: “It is alleged [in Count[s] 4] that
the defendant[s] Jaime Ortega intentionally and personally
discharged a firearm [and [proximately] caused [death] to a
person][other than an accomplice] during the commission of the
crime[s] charged.”
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We affirm the denial of Ortega’s petition as to the murder
conviction because the record of conviction establishes that
Ortega is ineligible for relief as a matter of law.
C. Failure to Provide Counsel Was Harmless Error on
the Murder Conviction
Ortega is correct that the trial court erred by denying his
resentencing petition at the prima facie stage without appointing
counsel. (Lewis, supra, 11 Cal.5th at pp. 961–972.) The People
agree. The dispute between the parties is whether this error was
harmless.
In its recent decision in Lewis, the California Supreme
Court, resolving a disagreement among the Courts of Appeal,
held that once a petitioner files a facially sufficient petition
requesting counsel, the trial court must appoint counsel before
performing any prima facie review under section 1170.95,
subdivision (c): “[P]etitioners who file a complying petition
requesting counsel are to receive counsel upon the filing of a
compliant petition.” (Lewis, supra, 11 Cal.5th at p. 963.)
Lewis held that failure to provide counsel under
subdivision (c) of section 1170.95 is error under state law, and is
tested for harmless error under People v. Watson (1956) 46 Cal.2d
818 (Watson). (Lewis, supra, 11 Cal.5th at pp. 972–974.)
Applying Watson, reversal is warranted if there is a reasonable
probability that Ortega would have obtained a more favorable
result had counsel been appointed. (See Mancilla, supra,
67 Cal.App.5th at p. 864, citing Watson, supra, 46 Cal.2d. at
p. 836.)
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For there to be a reasonable probability that Ortega could
have obtained a more favorable result with counsel, he must be
eligible for relief under section 1170.95. As discussed above,
Ortega was not eligible for resentencing of his murder conviction
under section 1170.95 as a matter of law, so the trial court’s
failure to appoint counsel was harmless error.
D. We Remand for the Trial Court to Address in the
First Instance Resentencing of the Attempted
Murder Convictions
The trial court denied Ortega’s petition to resentence his
attempted murder convictions because the law at the time of his
petition did not cover attempted murder convictions. With the
amendment to the section 1170.95 petition process to include
individuals convicted of attempted murder under the natural and
probable consequences doctrine, both parties ask us to reverse
and remand for further proceedings as to Ortega’s attempted
murder convictions. We agree that the new law applies to Ortega
because his appeal is not yet final. (People v. Montes (2021)
71 Cal.App.5th 1001, 1006.) The record reflects, and the People
concede, that Ortega may be eligible for relief because the jury
was instructed on the natural and probable consequences
doctrine for attempted murder.
13
DISPOSITION
The order denying Ortega’s motion for resentencing under
section 1170.95 is affirmed as to the conviction for murder and
remanded for further proceedings as to the convictions for
attempted murder. On remand, the court must appoint counsel
under Lewis. (Lewis, supra, 11 Cal.5th at p. 963.)
*
HARUTUNIAN, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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