People v. Ortiz CA2/5 ( 2022 )

Filed 12/16/22 P. v. Ortiz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B311516
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. BA108995)
JOSE ORTIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Reversed and
remanded with directions.
Barbara A. Smith, 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, Acting Supervising
Deputy Attorney General, and Nikhil Cooper, Deputy Attorney
General, for Plaintiff and Respondent.
Defendant and appellant Jose Ortiz (defendant) appeals
from an order summarily denying his petition for resentencing
pursuant to Penal Code section 1172.6 (former section 1170.95). 1
The Attorney General concedes a remand for further proceedings
in the trial court is required because the court should have
appointed counsel for defendant before ruling on his petition. We
will reverse and remand for that reason.
Defendant was convicted of five counts of first degree
murder in 1997.2 The evidence at trial established he was a
lookout while several other men entered a home and killed
former gang member Anthony Moreno (Moreno) and four other
individuals, including two children.
The jury was instructed on alternative theories of liability,
some of which implicated the natural and probable consequences
doctrine. The trial court summarized these theories in a special
instruction: “There are several theories of liability for murder in
this case: [¶] 1) The defendant was an aider and abet[t]or in each
murder; [¶] 2) The defendant was an aider and abet[t]or in the
murder of [Moreno] and the other murders were a natural and
probable consequence of said murder and were committed by a
principal in said murder; [¶] 3) The defendant was a co-
conspirator to the crime of murder in each count; [and] [¶] 4) The
defendant was a co-conspirator to the crime of robbery or murder,
and all the murders were committed by a co-conspirator in
1
Undesignated statutory references that follow are to the
Penal Code.
2
Defendant was tried with a co-defendant, Daniel Logan.
Three other defendants were tried separately.
2
furtherance of said conspiracy and were a natural and probable
consequence of such conspiracy.”
Defendant was sentenced to 129 years to life in prison.3 On
direct appeal, this court struck a gang enhancement but
otherwise affirmed the judgment.4 (People v. Logan (Aug. 31,
1998, B113206) [nonpub. opn.].)
Decades later, defendant filed a form petition for
resentencing under section 1172.6. He checked boxes to assert
(1) a complaint or information was filed against him that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,
(2) he was convicted of first or second degree murder pursuant to
one of those theories at trial, and (3) he could not now be
convicted of first or second degree murder because of changes to
sections 188 and 189. Defendant also requested appointment of
counsel.
The trial court denied the petition without appointing
counsel for defendant because the court believed he failed to
make a prima facie case for relief. The court reasoned: “A
petition for resentencing under [section 1172.6] is only available
to a person convicted of felony murder or murder under a natural
and probable consequences theory. [Citation.] The court has
read and considered the unpublished appellate opinion in this
3
Before sentencing, the trial court struck a multiple murder
special circumstance finding because “the jury should have been
told . . . they must find an intent to kill.”
4
This court granted defendant’s request to take judicial
notice of the record in his direct appeal. (Evid. Code, §§ 452,
subd. (d) and 459.)
3
case and finds that the defendant was found guilty of five counts
of first degree murder based on a direct aiding and abetting
theory, as such, he is not eligible for resentencing . . . .”5
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our
Supreme Court held that petitioners under section 1172.6 “are
entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that only after the appointment
of counsel and the opportunity for briefing may the superior court
consider the record of conviction to determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled
to relief.’ [Citation.]” (Id. at 957.) The Legislature subsequently
amended the statute to codify this holding. (Stats. 2021, ch. 551,
§ 1(b); see also § 1172.6, subd. (b)(3) [“Upon receiving a petition in
which the information required by this subdivision is set forth or
a petition where any missing information can readily be
ascertained by the court, if the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner”].)
Under Lewis and section 1172.6 as amended, the trial court
should have appointed counsel for defendant. The failure to do so
was prejudicial. (Lewis, supra, 11 Cal.5th at 974 [error in
deciding not to appoint counsel is prejudicial if it is reasonably
probable that if the defendant had been afforded assistance of
counsel his petition would not have been summarily denied].) As
the Attorney General appropriately concedes, the error is not
harmless because defendant’s record of conviction does not
establish that he is ineligible for resentencing as a matter of law.
5
A page (or pages) of the trial court’s minute order
apparently discussing the facts of the case appears to be missing
from the record on appeal.
4
The Attorney General acknowledges the trial court’s instructions
permitted the jury to find defendant guilty of “all five murders
because he conspired to commit an uncharged robbery in which a
co-conspirator killed the victims, and the killing was a natural
and probable consequence of the object of the conspiracy.”6
We shall accordingly reverse and remand with directions
for the trial court to appoint counsel, to issue an order to show
cause pursuant to section 1172.6, subdivision (c), and to
thereafter proceed consistent with section 1172.6, subdivision (d).
That is the disposition the Attorney General recommends, but
defendant suggests this is the “minimum” relief to which he is
entitled and urges us to instead “remand[ ] for resentencing.” We
decline. The prosecution must have the opportunity at the
statutorily prescribed hearing to prove defendant can be found
guilty of murder under current law.7 (§ 1172.6, subd. (d).)
6
The fact that defendant was convicted of first degree
murder does not preclude the possibility that the jury relied on a
natural and probable consequences theory. Defendant’s trial pre-
dated People v. Chiu (2014) 59 Cal.4th 155, in which our Supreme
Court held that “an aider and abettor may not be convicted of
first degree premeditated murder under the natural and probable
consequences doctrine.” (Id. at 158-159.)
7
We also reject defendant’s additional request that we
admonish the trial court that it should not rely solely on the
opinion from his direct appeal. The trial court will apply
prevailing law on remand.
5
DISPOSITION
The order denying defendant’s section 1172.6 petition is
reversed and the cause is remanded with directions to appoint
counsel, to issue an order to show cause pursuant to section
1172.6, subdivision (c), and to thereafter proceed consistent with
section 1172.6, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
6