People v. Ortiz CA4/2 ( 2022 )

Filed 2/23/22 P. v. Ortiz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077527
v. (Super.Ct.No. FVI015637)
ANTHONY MARK ORTIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
Anthony Mark Ortiz, in pro. per., and Thomas E. Robertson, under appointment
by the Court of Appeal, for Defendant and Appellant.
1
Defendant and appellant, Anthony Mark Ortiz, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the court denied. After defense counsel
filed a notice of appeal, this court appointed counsel to represent defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a
statement of the case, and identifying three potentially arguable issues: (1) whether the
trial court erred in disregarding the codefendant’s confession to being the actual killer in
finding defendant prima facie ineligible for relief; (2) whether the court erred in
concluding the jury’s true finding on the personal use of a firearm causing death
enhancement foreclosed defendant from relief as a matter of law; and (3) whether the
court prejudicially erred in holding the hearing in defendant’s absence.
Defendant was offered the opportunity to file a personal supplemental brief, which
he has done. Defendant contends the court erred in denying his petition because he
(1) was not the actual killer; (2) did not, with the intent to kill, aid and abet the actual
killer in the commission of the murder; and (3) was not a major participant in a felony
acting with reckless indifference to human life. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On the court’s own motion, we take judicial notice of our prior nonpublished
opinion from defendant’s previous appeal. (People v. Ortiz et al. (Mar. 15, 2007,
E037982) [nonpub. opn.] (Ortiz); Evid. Code, §§ 452, 459; Cal. Rules of Court,
rule 8.1115(b).)
2
On August 11, 2002, a vehicle pulled up alongside the victim in a parking lot.
Defendant was the driver of the car, described by the eyewitnesses as the “White guy”;
defendant’s codefendant, Brandon Jamaal O’Guynn, “the Black guy,” was the passenger.
After one of the defendants said something that drew the victim’s attention, the victim
walked over to defendants’ car. (Ortiz, supra, E037982.)
As the victim approached the driver’s side window, three shots were fired at close
range with a nine-millimeter handgun. Each shot hit the victim in the chest. After the
shooting, defendant, with O’Guynn in the passenger seat, sped away. The victim died in
the parking lot as his wife chased the defendants’ vehicle yelling out the numbers on the
vehicle’s license plate. (Ortiz, supra, E037982.)
Defendant drove to the home of his brother. Once there, defendants told others
about the shooting. According to several witnesses, O’Guynn claimed that he had been
the shooter. Defendant’s brother told the police and testified at trial that O’Guynn said
that he had shot the victim. After learning that the victim had died, O’Guynn gave the
gun to someone to hide. The gun was eventually thrown into a lake where officers later
recovered it. (Ortiz, supra, E037982.)
Forensic analysis of the bullets recovered from the body of the victim established
that they had been fired from the gun recovered from the lake. In a search of O’Guynn’s
bedroom, officers recovered a plastic baggie that held three bullets, two of which were
nine-millimeter. Defendant’s brother testified the gun recovered from the lake belonged
to O’Guynn who, according to defendant’s brother, always carried a weapon. (Ortiz,
supra, E037982.)
3
O’Guynn argued that defendant’s brother fabricated what he had told others and
the police to protect defendant and place blame for the shooting on O’Guynn. Another
witness testified that he had been threatened by defendant’s brother who had told him that
O’Guynn was the shooter. (Ortiz, supra, E037982.)
Both defendants initially denied participation in the shooting when questioned by
officers; however, by the time of trial, the only issue was which of them had been the
actual shooter. The prosecutor’s theory was that O’Guynn was the shooter, and
defendant had aided and abetted that crime by driving the car. The victim’s girlfriend
testified that the driver of the car was the shooter; she recalled seeing a White hand
holding a black gun. She identified the passenger as a Black man and stated that he just
sat there during the shooting. The only other eyewitness concurred that the shooter was
the White, driver of the car. (Ortiz, supra, E037982.)
Following a joint trial, the jury found defendant and O’Guynn guilty of first
degree murder. With respect to defendant, the jury further found true the special
allegation under section 12022.53, subdivision (d), that in the commission of the crime,
defendant personally and intentionally discharged a firearm, which proximately caused
great bodily injury and death. Based on the jury’s verdict and true finding, the trial court
sentenced defendant to a term of 25 years to life in state prison on the first degree murder
conviction and an additional consecutive term of 25 years to life in prison on the
section 12022.53 personal gun use enhancement. (Ortiz, supra, E037982.)
Both defendants appealed. O’Guynn contended insufficient evidence supported
his conviction for first degree murder. This court held that the evidence was insufficient
4
to support the verdict finding O’Guynn guilty of first degree murder; this court reversed
his conviction on that charge. (Ortiz, supra, E037982.)
Defendant contended, in pertinent part, that insufficient evidence supported the
jury’s true finding on the allegation that he personally used a handgun causing death.
Defendant argued that the jury’s finding was not supported due to defects in the
witnesses’ credibility. This court held that by virtue of their true finding, the jury
resolved the credibility issues and the conflicts in evidence against defendant. Thus,
because there was evidence to support the jury’s finding that defendant was the actual
shooter, this court affirmed the jury’s true finding on the enhancement. (Ortiz, supra,
E037982.)
On January 14, 2019, defendant filed a form petition for resentencing pursuant to
section 1170.95. Defendant contended he (1) was not the actual killer; (2) did not, with
the intent to kill, aid and abet the actual killer in the commission of the murder; and
(3) was not a major participant in a felony acting with reckless indifference to human life.
In an addendum to the petition, defendant maintained that, at trial, the prosecution
affirmed he was not the actual killer, that O’Guynn was the actual killer, but that
defendant should be held liable under the felony-murder rule. Defendant contended that
new evidence, consisting of a notarized confession by O’Guynn stating he was the
shooter, proved that defendant was not the actual killer.3 Defendant also noted that
witnesses at trial testified that O’Guynn had confessed to being the shooter.
3 No notarized confession by O’Guynn was attached to the petition.
5
On March 19, 2019, the People filed a motion to strike defendant’s petition for
resentencing based on the purported unconstitutionality of section 1170.95. The People
requested judicial notice of our nonpublished opinion in Ortiz, supra, E037982, which
they attached to the motion. The People also requested the court take judicial notice of
the trial records in the case.
On May 10, 2019, the trial court appointed counsel for defendant. On February
21, 2020, the court inquired whether the jury had found that defendant was the actual
killer. The People responded that the jury had found defendant was the actual killer who
shot the victim. The court asked if there was an appellate decision in the matter. The
People responded that there was, and there had been “no argument by the People in this
case of []natural [and] probable consequences or felony murder. It was strictly aiding
and abetting [a] principal.”
The court granted defense counsel a continuance to file a reply but noted, “[I]f the
jury convicted him, found him to be the person who was the actual killer and the
appellate record so indicates, there’s a real good opportunity for you to expect that I’m
going to be striking this petition because I don’t see how [defendant] could possibly be
eligible. I’m not going to retry the case. . . . I don’t think . . . the legislat[ure] intended
that these cases be relitigated for the factual determination that the jury made.”
On July 22, 2020, defendant filed a motion pursuant to People v. Franklin (2016)
63 Cal.4th 261, the majority of which made arguments for why his murder conviction
6
should be set aside pursuant to section 1170.95.4 On March 5, 2021, defendant filed an
application for resentencing pursuant to section 1170, subdivision (d), to which he
attached a signed declaration from O’Guynn in which O’Guynn wrote that he shot the
victim in order to protect defendant.
At the hearing on July 30, 2021, defense counsel noted that defendant was not
present despite the court’s order, and “he wants to be here for his hearing.” The court
noted, “I don’t think he’s going to be transported . . . .” Defense counsel asked, “Why
not?” The People observed that due to Covid-19 protocols, there were some “hiccups,”
and prisoners had to be quarantined in the jail for two weeks before being transported to
court.
The court asked if there had been a prima facie hearing yet. Defense counsel
responded that there had not, but that “my client would—he has asserted he wants to be
present for that when that happens.” The court stated, “I don’t believe there’s any basis
for determining that he has a right to be here for me to determine whether or not there’s a
prima facie basis.” Defense counsel responded, “I would need to research that issue,
Your Honor, because I think he does.” The People noted that there was no “case or
statute that says the defendant has to be present.” Defense counsel responded, “I would
like to research it, Your Honor. I know that these hearings are very important, and it
matters greatly to my client.”
4Pages 135 to 176 of the motion make up the bulk of defendant’s supplemental
brief on appeal.
7
The court observed, “It does matter to your client, but your client was found to be
what? What was the—personal use of a firearm, a determination that was made by a jury
in this case.” Defense counsel responded, “[T]he jury had found a finding but the finding
was disputed, and it seemed like the prosecutor in that case had presented evidence to the
otherwise or to the contradiction of that . . . .” The court replied, “[Y]ou’re going to tell
me . . . that even though the jury found that he personally discharged a firearm causing
death, that he is entitled to be considered as someone who is neither the personal killer
nor a person who’s an active participant in a crime. Those are the standards that I’m
looking for. [¶] . . . [¶] . . . I don’t see how you avoid the application of a jury’s decision
that he was the person who discharged the gun causing death.”
Defense counsel argued that defendant had made a prima facie case for relief. He
noted that the prosecutor had argued throughout the trial, including during his closing
argument, that defendant was not the shooter.
Further, defense counsel stressed, “[M]y client wants to be here for this, Your
Honor. He’s actually helped me. He’s been doing tons of research himself. We have
him on the way here.” The court responded, “The full argument is to be made [once]
there is a prima facie case showing. That’s when you get the opportunity to make an
evidentiary argument for me to have an evidentiary hearing.” Defense counsel
responded, “Your Honor, my client wants to be here for these things.”
The People noted, “[T]he argument was a little different than counsel is
characterizing. The argument that I made to the jury was that both defendants were
guilty on an aiding and abetting theory, which has nothing to do with felony murder, and
8
that their job was to determine who was the shooter. I said what the People believe is
irrelevant, and that’s what I put in the record. So the jurors did what their job is. [¶] We
argued both because of the acts of both of the people involved, that both of them had
enough culpability to be convicted of murder. We didn’t rely on . . . felony murder. The
jury used the testimony that the victim’s wife, who was present, who said . . . the gun was
being held by a White hand. The defendant was the Caucasian in the car, and the African
American in the car she said was not the shooter. So the jurors went with the victim’s
wife’s testimony and went that way. And that’s where the verdict came from. The
appellate court has looked at this. The appellate court saw no problems with the
conviction nor the use allegation.”
The People further argued, “So the appellate record and the verdict forms show
that the jury felt that [defendant] was the shooter in this case. . . . [¶] And again, the
theory was they went there to kill him. They drove the car over there, pulled up next to
him and executed him. So there was not a need for a felony-murder argument.”
The court ruled, “I think the fact there was a jury finding . . . that [defendant] was
the person [who] discharged the gun causing death, renders him ineligible for the
relief . . . . There is no prima facie showing, so your petition is denied.”
II. DISCUSSION
Defendant contends the court erred in denying his petition because he (1) was not
the actual killer; (2) did not, with the intent to kill, aid and abet the actual killer in the
commission of the murder; and (3) was not a major participant in a felony acting with
reckless indifference to human life. We disagree.
9
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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).) In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made effective January 1,
2019.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)
In this case, the superior court denied defendant’s petition at the prima facie stage
under section 1170.95, subdivision (c). “A denial at that stage is appropriate only if the
record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of
law.’ [Citations.] This is a purely legal conclusion, which we review de novo.” (People
10
v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;
accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted
Oct. 14, 2020, S264284.)
“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.) “‘[I]f
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.”’” (Ibid.) “Appellate opinions . . . are generally considered to
be part of the record of conviction.” (Id. at p. 972.) “[T]he parties can, and should, use
the record of conviction to aid the trial court in reliably assessing whether a petitioner has
made a prima facie case for relief . . . .” (Ibid.)
Here, the opinion reflects that defendant was the actual killer, which renders
defendant ineligible for section 1170.95 relief. According to the eyewitnesses, defendant,
the “White guy,” was the driver of the vehicle; O’Guynn, “the Black guy,” was the
passenger. The victim leaned toward the driver’s side window where three shots were
fired at close range. After the shooting, defendant, with O’Guynn in the passenger seat,
sped away. The victim’s girlfriend testified that the driver of the car was the shooter; she
recalled seeing a White hand holding a black gun. She identified the passenger as a
Black man and stated that he just sat there during the shooting. The only other
eyewitness concurred that the shooter was the White guy and the driver of the car. The
jury expressly found that defendant was the actual killer by rendering its finding on the
11
personal use of a firearm causing death enhancement. (Ortiz, supra, E037982.) Thus, as
the actual killer, defendant is ineligible for relief as a matter of law. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 248 [Even under the amended statue, a defendant
remains liable for murder if he was the actual killer.]; accord People v. Cornelius (2020)
44 Cal.App.5th 54, 58 [disagreed with to the extent inconsistent with Lewis]; see People
v. Edwards (2020) 48 Cal.App.5th 666, 674-675 [Where the record of conviction,
including the opinion from a direct appeal, reflected the defendant was the actual killer,
he was not entitled to relief pursuant to section 1170.95], overruled on other grounds in
Lewis, supra, 11 Cal.5th at p. 963.) Therefore, the superior court properly denied
defendant’s section 1170.95 petition.
Defendant contends that the “new” evidence of O’Guynn’s confession, when
considered with the testimony and the prosecutor’s argument at trial, demonstrate that
O’Guynn, rather than defendant, was the actual shooter. We disagree. As this court
noted in defendant’s previous appeal, the prosecutor’s theory that O’Guynn was the
shooter “lost viability when both eyewitnesses testified that the driver was the shooter.”
(Ortiz, supra, E037982.) Moreover, as previously noted, the jury expressly found that
defendant was the actual killer by rendering its finding on the personal use of a firearm
causing death enhancement. Thus, the court below correctly ruled that, at least at the
prima facie stage, defendant was not entitled to relitigate factual questions already
determined by the jury. (People v. Secrease (2021) 63 Cal.App.5th 231, 247 [“[S]ection
1170.95 does not allow relitigation of factual questions that were settled by a prior
jury . . . .”].)
12
III. DISPOSITION
The order denying defendant’s section 1170.95 motion is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
13