People v. Ortiz CA2/6 ( 2021 )

Filed 3/17/21 P. v. Ortiz CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B300776
(Super. Ct. No.
Plaintiff and Respondent, F000270432003)
(San Luis Obispo County)
v.
SERGIO ORTIZ,
Defendant and Appellant.
Appellant Sergio Ortiz was convicted of second degree
murder in 1998. (Pen. Code, §§ 187, subd. (a), 189.)1 In 2019 he
filed a petition to vacate his murder conviction and obtain
resentencing pursuant to section 1170.95, which was added to the
Penal Code by Senate Bill No. 1437 (S.B. 1437). (Stats. 2018, ch.
1 All statutory references are to the Penal Code.
1015, § 4.) The trial court denied the petition because he had
failed to make a prima facie showing that he could not be
convicted of murder under current law. We affirm.
Procedural Background
In addition to being convicted of second degree murder,
appellant was convicted of conspiracy to commit assault by
means of force likely to produce great bodily injury. (§§ 182,
subd. (a)(1), 245, former subd. (a)(1), now subd. (a)(4).) The jury
found true an allegation that he had committed the murder for
the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) He
was sentenced to prison for 15 years to life. In a 2001
nonpublished opinion, People v. Garcia et al. (July 23, 2001,
B126854) [nonpub. opn.] (Garcia 1), we affirmed the judgment of
conviction as to appellant and his codefendants: Oscar Garcia,
David Rey, Gregory Vived, Jr., and Monte Weatherington.
Appellant was still incarcerated in 2019 when he filed his
petition for relief pursuant to section 1170.95. In support of the
petition, appellant declared: (1) he was convicted of second
degree murder under the natural and probable consequences
doctrine; (2) he could not currently be convicted of murder
because of changes made by S.B. 1437; (3) he was not the actual
killer; (4) he “did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in
the commission of murder;” and (5) he “was not a major
participant who acted with reckless indifference to human [life].”
The trial court considered the statement of facts in our
2001 opinion. Based on those facts, it denied appellant’s petition
because he had failed to make a prima facie showing that under
current law he could not “be convicted of second degree murder
on an implied or express malice theory.”
2
We affirm. We conclude that appellant’s showing did not
rise to the statutorily required “prima facie” level because the
statement of facts in our 2001 opinion establishes that under
current law he could be convicted of second degree murder on a
theory of implied malice.
Facts
The facts are taken from the statement of facts at pages 2-5
of our nonpublished Garcia 1 opinion, which was attached as
“Exhibit A” to appellant’s section 1170.95 petition.
“Paso Robles 13 (Paso 13) is a criminal street gang. [Raul]
Mosqueda, whose moniker is ‘dreamer,’ was a past associate of
Paso 13. Mosqueda was friendly with the members of Nameless
Crew Style (NCS), a rival gang that was engaged in ‘warfare’
with Paso 13. . . . Paso 13 put out a ‘green light’ on Mosqueda,
which meant that he was ‘free game’ to kill. [David] Rey and
[Oscar] Garcia were members of Paso 13, and [appellant]
associated with the gang. [¶] . . . Rey believed that Mosqueda
had falsely accused him of vandalizing [appellant’s] car. Rey told
[appellant] that Mosqueda had committed the vandalism. Rey
said he ‘was going to take care’ of ‘dreamer.’
“[¶]
“[¶]
“During the evening of April 12, 1998, Reginald Calhoun
went to the trailer park residence of [appellant] and [Monte]
Weatherington. [Appellant and other persons were present]
there. Mosqueda became the subject of conversation, and
everyone was saying, ‘Hey, we want to kick dreamer’s ass.’
“Calhoun was paged by [Gregory] Vived[, Jr.]. Calhoun
telephoned Vived, who said that Mosqueda was going to be at a
party in Paso Robles. . . .
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“Calhoun, [Manuel] Preciado, and [five other persons,
including appellant,] drove to the Paso Robles party in three cars.
Rey was the sole passenger in a car driven by Garcia. Rey was
armed with a knife that he displayed to Garcia inside the car.
Rey put the knife in his pocket. At the trailer park, Rey had not
displayed the knife or mentioned that he possessed it.
“After parking their cars in Paso Robles, Calhoun,
Preciado, and [the five other persons, including appellant,]
walked to the apartment where the party was occurring.
Weatherington knocked on the front door. A female opened the
door, and Weatherington asked to speak to ‘dreamer.’ Mosqueda
came to the door and said, ‘What do you guys want?’
Weatherington told him to come outside. Mosqueda said, ‘We
don’t want no problems here.’ Mosqueda closed the door, and
another person locked it.
“[¶] Calhoun picked up a potted plant and threw it through
a plate-glass window. Rey and Weatherington kicked the front
door open. Calhoun, Preciado, and [five other persons, including
appellant,] ran through the doorway into the apartment. They
were saying, ‘Get your beating like a man,’ and ‘You know what
time it is. You know it’s up.’ Everyone inside ‘just started
scattering.’ Mosqueda retreated into a bathroom and tried to
close the door. Calhoun testified that he and Rey pulled
Mosqueda out into the hallway, but other witnesses testified that
Weatherington did the pulling. Calhoun and [five other persons,
including appellant,] punched Mosqueda in the hallway. There
was ‘a big commotion of bodies’ and people were screaming.
“[¶]
“Mosqueda fell to the floor and was lying on his side
against a wall. Garcia said to Rey, ‘You got a knife. You got a
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knife. Stick him. Stick him.’ Rey stabbed Mosqueda four times
in the chest. Mosqueda crawled out of the hallway ‘like a baby’
on his hands and knees with blood on his face, chest, and
stomach. Rey, Vived, Garcia, [appellant], and Calhoun were
‘around him’ and were punching and kicking him. People in the
background were saying, ‘Leave him alone. He’s knocked out.[’]
Mosqueda fell to his side. Rey, Vived, Garcia, [appellant], and
Calhoun continued to hit and kick him. Garcia said, ‘Now what’s
up dreamer? . . . Now you ain’t talking. You’re not saying
nothing now, are you?’ Vived stopped ‘swinging and kicking’ and
‘jumped up against the wall.’ He said, ‘Oh shit . . . What
happened? What happened?’ Vived appeared to be ‘in shock.’
Everybody except [appellant] ceased attacking Mosqueda.
[Appellant] kicked him twice in the head. . . .
“Later that night, Preciado, appellant, and Weatherington
met Garcia in a parking lot. Garcia told them that Rey had
stabbed Mosqueda ‘penitentiary style, real quick,’ and that
anyone who said ‘anything to the cops’ would ‘get bumped off’ in
prison. Garcia said that Rey ‘had got his stripes.’ This meant
that Rey had earned respect from other gang members and ‘was
up at the top with the big boys . . . .’
“When Garcia left, Preciado, appellant, and Weatherington
went to a motel. According to Preciado, at the motel they
discussed the stabbing, agreeing that Rey ‘was wrong for doing it
. . . without saying anything . . . .’ But earlier in the evening
[appellant] had declared, ‘We got their guy. It’s going to be a
good night.’
“An expert on criminal street gangs testified that the
killing of Mosqueda had benefited Paso 13 because it had ‘slowed
5
down’ the escalation in violence between Paso 13 and NCS and
had ‘put [Paso 13] back on top.’”
Cause of Death
During oral argument on appellant’s section 1170.95
petition, his counsel said that at trial Dr. Walker had testified
“that the cause of death, period, was the four stab wounds . . . .
Nothing, no actions by [appellant] whatsoever caused the death.
In fact, all of their injuries [injuries inflicted upon Mosqueda by
persons other than Rey] according to the doctor were non[-]life-
threatening.” The Garcia 1 opinion states, “The [autopsy]
pathologist testified that, although Mosqueda had sustained
multiple contusions and abrasions that might have been caused
by being hit or kicked, the blows did not cause internal or life-
threatening injuries.” (Garcia 1, supra, B126854, at p. 20.)
Codefendants’ Section 1170.95 Petitions
Codefendants Garcia, Vived, and Weatherington were also
convicted of second degree murder. They filed petitions for relief
under section 1170.95. In People v. Garcia (2020) 57 Cal.App.5th
100, review granted Feb. 10, 2021, S265692 (Garcia 2), we
affirmed the trial court’s order denying Garcia’s petition for
failure to make a prima facie showing. On the same date that the
trial court denied appellant’s petition, it ruled that Vived and
Weatherington had made the requisite prima facie showing. It
issued orders to show cause and set their matters for an
evidentiary hearing. At the conclusion of the hearing, the trial
court denied their petitions. Their appeals are pending. (People
v. Vived, B303872; People v. Weatherington, B303125.)
S.B. 1437
“Under the felony-murder rule as it existed prior to Senate
Bill 1437, a defendant who intended to commit a specified felony
6
could be convicted of murder for a killing during the felony, or
attempted felony, without further examination of his or her
mental state. [Citation.] . . . [¶] Independent of the felony-
murder rule, the natural and probable consequences doctrine
rendered a defendant liable for murder if he or she aided and
abetted the commission of a criminal act (a target offense), and a
principal in the target offense committed murder (a nontarget
offense) that, even if unintended, was a natural and probable
consequence of the target offense. [Citation.]” (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247-248; see also People v.
Chiu (2014) 59 Cal.4th 155, 158 [“‘under the natural and
probable consequences doctrine, an aider and abettor is guilty not
only of the intended crime, but also “for any other offense that
was a ‘natural and probable consequence’ of the crime aided and
abetted”’”].) “The natural and probable consequences doctrine . . .
differs from the law of conspiracy, which holds a person liable for
crimes that he or she agreed with one or more persons to commit
and that a member of the conspiracy committed in furtherance of
the agreement.” (People v. Gentile (2020) 10 Cal.5th 830, 844
(Gentile).)
In S.B. 1437 the Legislature declared, “It is necessary 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
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
To achieve this goal, S.B. 1437 amended section 189, insofar as it
pertains to the felony-murder rule, to add subdivision (e), which
provides: “A participant in the perpetration or attempted
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perpetration of a felony listed in subdivision (a) in which a death
occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer. (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
(3) The person 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.” (Stats. 2018, ch. 1015, § 3.)
S.B. 1437 also amended section 188 to add subdivision
(a)(3), which 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.” (Stats. 2018, ch. 1015, § 2.) The Legislature declared, “A
person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Id., § 1, subd.
(g).) “[T]he most natural reading of Senate Bill 1437’s operative
language is that it eliminates natural and probable consequences
liability for first and second degree murder.” (Gentile, supra, 10
Cal.5th at p. 849.)
Section 1170.95, added by S.B. 1437, gives retroactive effect
to the changes in sections 188 and 189. It provides, “A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when” certain conditions apply. (§ 1170.95, subd. (a).)
One of the conditions is that “[t]he petitioner could not be
convicted of first or second degree murder because of changes to
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Section 188 or 189 made [by S.B. 1437] effective January 1,
2019.” (Id., subd. (a)(3).) The petition must include a declaration
by the petitioner showing that he is eligible for the relief afforded
by section 1170.95. (Id., subd. (b)(1)(A).)
“The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of [section 1170.95]. . . . 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.”
(§ 1170.95, subd. (c), italics added.) “Within 60 days after the
order to show cause has issued, the court shall hold a hearing to
determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner . . . .” (Id., subd.
(d)(1).) “At the hearing . . . , the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing. . . . The prosecutor and
the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Id., subd.
(d)(3).)
The Trial Court Properly Considered the
Statement of Facts in Garcia 1
Appellant contends that, in ruling that he had not made a
prima facie showing of entitlement to relief under section
1170.95, the trial court improperly relied on the statement of
facts in Garcia 1. We reject the contention for the reasons
explained in Garcia 2, supra, 57 Cal.App.5th at pp. 110-112.)
Jury Instructions
The jury was instructed on four theories of second degree
murder: (1) an intentional killing with malice aforethought but
without deliberation and premeditation; (2) aiding and abetting
9
together with the natural and probable consequences doctrine;
(3) liability for the act of a coconspirator in furtherance of the
conspiracy; and (4) implied malice.
Standard of Review
We independently review the trial court’s ruling that
appellant failed to make a prima facie showing. (Garcia 2, supra,
57 Cal.App.5th at p.110.)
Garcia 2 Holding: When Petitioner
Fails to Make a Prima Facie Showing
In Garcia 2 we held: “[W]here . . . the record of conviction
contains substantial evidence based on which a reasonable trier
of fact could find the petitioner guilty of murder beyond a
reasonable doubt under current law despite the changes made by
Senate Bill 1437, the petitioner has failed to carry his burden of
making a prima facie showing that he could not presently be
convicted of murder because of changes made by Senate Bill
1437. (§ 1170.95, subds. (a)(3), (c).) The petition must be denied
even though the assertions in the petition, if true, would satisfy
the statutory criteria for relief.” (Garcia 2, supra, 57 Cal.App.5th
at p.106.)2
2 On February 10, 2021, the California Supreme Court
granted review in Garcia 2, S265692. The court’s notes state:
“Further action in this matter is deferred pending consideration
and disposition of related issues in People v. Lewis, S260598, and
People v. Duke, S265309.” In Duke the Supreme Court said, “The
issue to be briefed and argued is limited to the following: Can the
People meet their burden of establishing a petitioner's
ineligibility for resentencing under Penal Code section 1170.95,
subdivision (d)(3) by presenting substantial evidence of the
petitioner's liability for murder under Penal Code sections 188
and 189 as amended by Senate Bill No. 1437 (Stats. 2018, ch.
10
In People v. Duchine (2021) 60 Cal.App.5th 798, the court
rejected our holding in Garcia. Duchine held “that the prima
facie showing the defendant must make is that he did not, in fact,
act or harbor the mental state required, for a murder conviction
under current law.” (Id. at p. 815.) The court further held:
“[A]bsent a record of conviction that conclusively establishes that
the petitioner engaged in the requisite acts and had the requisite
intent, the trial court should not question his evidence. . . . The
record should be consulted at the prima facie stage only to
determine ‘readily ascertainable facts,’ such as the crime of
conviction and findings on enhancements.” (Ibid.) If the
Legislature had intended the prima facie showing requirement to
be so construed, it could have easily modified the first sentence of
section 1170.95, subdivision (c) to read as follows (italicized
language added): “Accepting the petitioner’s averments as true
unless the record of conviction conclusively proves them false, the
court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section.” The legislature omitted the italicized
language, and we should not add it. “Courts may add language to
a statute in extreme cases where they are convinced the
Legislature inadvertently failed to utilize the words which would
1015), or must the People prove every element of liability for
murder under the amended statutes beyond a reasonable doubt?”
(People v. Duke (Jan. 13, 2021, No. S265309) ___Cal.5th___ [2021
Cal. LEXIS 242, at *1].) In Lewis the relevant issue under
consideration is whether superior courts may “consider the record
of conviction in determining whether a defendant has made a
prima facie showing of eligibility for relief under Penal Code
section 1170.95.” (People v. Lewis (Mar. 18, 2020, S260598)
__Cal.5th __ [2020 Cal. LEXIS 1946].)
11
give purpose to its pronouncements. [Citation.] In our view, this
is not such a case.” (Schneider v. California Coastal Com. (2006)
140 Cal.App.4th 1339, 1345.)
No Prima Facie Showing that Appellant Could Not Be
Convicted of Second Degree Murder on Implied Malice Theory
“‘Malice is implied when the killing is proximately caused
by “‘an act, the natural consequences of which are dangerous to
life, which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.’” [Citation.] In short, implied malice
requires a defendant's awareness of engaging in conduct that
endangers the life of another . . . .’” (People v. Cravens (2012) 53
Cal.4th 500, 507 (Cravens).) “Implied malice does not require an
intent to kill.” (People v. Gonzalez (2012) 54 Cal.4th 643, 653.)
S.B. 1437 did not repeal the law imposing criminal liability for
implied malice murder. (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”].)
Based on the facts set forth in Garcia 1, for the following
six reasons appellant currently could be convicted of second
degree murder on an implied malice theory:
(1) Appellant together with six other persons forcibly
invaded a home with the express intent to “‘kick dreamer’s ass.’”
(Garcia 1, supra, B126854, at p. 3.) “Calhoun testified . . . that,
when seven persons ‘invade a house’ to ‘kick somebody’s ass,’ the
12
victim could be hurt badly enough to sustain broken bones or
die.” (Id. at p. 19.)
(2) At the time of the home invasion, appellant specifically
intended that he and his accomplices would assault Mosqueda by
means of force likely to produce great bodily injury. The jury
found appellant guilty of conspiracy to commit such an assault.
(§§ 182, subd. (a)(1), 245, former subd. (a)(1), now subd. (a)(4).)
“[T]he crime of conspiracy requires dual specific intents: a specific
intent to agree to commit the target offense, and a specific intent
to commit that offense.” (People v. Jurado (2006) 38 Cal.4th 72,
123.)
(3) The assault was committed against a person who had
been “green-lighted” by a criminal street gang, Paso 13. Two of
the assailants – Rey and Garcia – were members of the gang.
The “green light” “meant that [Mosqueda] was ‘free game’ to kill.”
(Garcia 1, supra, B126854, at p. 2; see People v. Gomez (2018) 6
Cal.5th 243, 263 [gang expert “explained that individuals can be
placed ‘on a green light list’ and that ‘gang members have
a green light or the authorization to assault and murder whoever
is on that list’ ”]; People v. Parrish (2007) 152 Cal.App.4th 263,
278 [“a gang member . . . may be made subject of a ‘green light,’
which . . . is authorization from authority figures in the gang to
kill that person”].) The green light increased the risk that the
assault would result in Mosqueda’s death. It is reasonable to
infer that appellant knew Mosqueda had been green-lighted by
the gang and understood the significance of the green light.
Appellant associated with Paso 13. The jury found true an
allegation that he had committed the murder for the benefit of
the gang. (§ 186.22, subd. (b)(1).)
13
(4) Appellant knew that the actual killer, gang-member
Rey, bore a personal grudge against Mosqueda. “Rey believed
that Mosqueda had falsely accused him of vandalizing
[appellant’s] car. Rey told [appellant] that Mosqueda had
committed the vandalism. Rey said he ‘was going to take care’ of
‘dreamer.’” (Garcia 1, supra, B126854, at p. 2.)
(5) Appellant and five other persons, including two gang
members, viciously assaulted Mosqueda, who was on his own and
unarmed. After Rey had mortally wounded Mosqueda, appellant
and four other persons “continued to hit and kick” him while he
was “on his hands and knees with blood on his face, chest, and
stomach.” (Garcia 1, supra, B126854, at p. 4.) After the other
assailants had ceased their attack, appellant kicked Mosqueda
twice in the head. In Garcia 1 we noted, “Ortiz admitted kicking
Mosqueda in the head while Mosqueda was lying on the floor.”
(Id., at p. 20.) Although the kicks were not a substantial factor in
causing Mosqueda’s death, it is common knowledge that kicks to
the head can be dangerous to human life. (See People v. Guillen
(2014) 227 Cal.App.4th 934, 990 [“stomping on someone who has
been severely beaten and is defenseless demonstrates a conscious
disregard of life”]; Cravens, supra, 53 Cal.4th at p. 511 [“the jury
was entitled to infer defendant's subjective awareness that his
conduct endangered [the victim’s] life from the circumstances of
the attack alone, the natural consequences of which were
dangerous to human life”].)
(6) After the killing appellant declared, “‘We got their guy.
It’s going to be a good night.’” (Garcia 1, supra, B126854, at p. 5.)
By using the word “we,” appellant took credit for Mosqueda’s
murder. He did not say, “Rey got their guy.” Appellant’s
statement, “‘It’s going to be a good night,’” shows that he not only
14
approved of the murder, but also intended to celebrate it. (See
Cravens, supra, 53 Cal.4th at p. 511 [that defendant “took no
steps to ascertain [the victim’s] condition or to secure emergency
assistance” and instead “bragged about his own prowess, laughed
and joked about [the victim’s] condition . . . bolstered the finding
of implied malice”].)
Considering all of the above circumstances, a reasonable
trier of fact could find beyond a reasonable doubt that (1)
appellant deliberately participated in the brutal gang beating of a
defenseless victim knowing that the victim had been green-
lighted by the gang, (2) the natural consequences of his conduct
were dangerous to human life, and (3) appellant knew that his
conduct endangered Mosqueda’s life and acted with conscious
disregard for life. “Given the great potential for escalating
violence during gang confrontations, it is immaterial whether
[appellant] specifically knew [Rey] had a [knife].” (People v.
Montes (1999) 74 Cal.App.4th 1050, 1056.) The potential for
escalating violence was especially great here because of the green
light that Paso 13 had put out on Mosqueda, the violent nature of
the home invasion, and the number of persons involved in the
attack (seven against one).
Accordingly, appellant failed to carry his burden of making
a prima facie showing that he “could not be convicted of first or
second degree murder because of changes [made by S.B. 1437] to
Section 188 or 189 . . . .” (§ 1170.95, subd. (a)(3).)
Disposition
The order denying appellant’s petition for relief is affirmed.
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NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
17