Opinion
G061488
09-15-2023
THE PEOPLE, Plaintiff and Respondent, v. KANDICE NOEL ORTEGA, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 06NF1800 Patrick H. Donahue, Judge. Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
Kandice Noel Ortega appeals from an order denying her petition for resentencing under Penal Code section 1172.6. The court held an evidentiary hearing and concluded that the prosecution had proven beyond a reasonable doubt that Ortega was guilty of second degree murder notwithstanding the changes to the law first introduced by Senate Bill No. 1437 (2017-2018 Reg. Sess.). (Stats. 2018, ch. 1015; Senate Bill 1437.) Ortega contends the court's order was not supported by substantial evidence. We disagree and affirm the order.
All statutory references are to the Penal Code.
Because the trial court relied exclusively on the reporter's transcript of the underlying trial, which is the same transcript we relied on in preparing our statement of facts in the prior appeal, we draw heavily from our prior statement of facts in setting forth the facts here. We have omitted portions of our prior statement of facts that the trial court disavowed relying on due to intervening changes in the law regarding admissible evidence.
Codefendant Jose "Suarez and Ortega gathered in May 2006 with fellow La Jolla gang members Christian Jimenez, Rafael Luna, and others at a friend's house, where Suarez informed the group that members of the rival Atwood gang had driven through La Jolla territory in Placentia. Jimenez testified Suarez, whose gang monikers included 'Woody' and 'Silent,' urged the group to retaliate for Atwood's perceived transgression. According to Jimenez, Suarez stated the group 'had to go back' to Atwood territory and, when Jimenez remarked on the danger of doing so unarmed, Suarez told them he had a gun." (People v. Ortega (Apr. 26, 2011, Case No. G041522) [nonpub. opn.].) Jimenez testified he understood the mission was to find someone from the Atwood gang and beat them up. However, he also testified he was "down for somebody getting killed."
"Ortega took the wheel of a vehicle she had stolen the night before, and Suarez, Jimenez, and Luna joined her. As Ortega drove down a street in territory Atwood claimed, they passed [Manuel] Rodriguez, who was walking towards an ice cream truck with Pablo Moreno and another friend. Suarez said he recognized Rodriguez." (People v. Ortega, supra, G041522.) Suarez testified he recognized Rodriguez as an Atwood gang member from pictures posted on social media. "Ortega made a U-turn and, after hesitating, stopped the car near the ice cream truck. Someone outside the vehicle yelled, 'Woody is coming,' and Rodriguez's friends fled, but he stayed behind. As Suarez stepped out of the vehicle, Rodriguez walked quickly towards a nearby park, but Suarez shot him in the back five times. Rodriguez died from blood loss due to gunshot wounds to his heart and lungs. (People v. Ortega, supra, G041522.)
There is some ambiguity in the record regarding whether Ortega stopped at a stop sign, or short of the stop sign at the ice cream truck.
"Ortega drove the group to a fastfood restaurant to eat and then to another gang member's home in Anaheim. Jesus Flores, who had dated Suarez's sister, testified he picked up Suarez and Ortega and drove them to his place in Long Beach that night. Ortega had a backpack. Flores admitted Suarez's mother had been worried Suarez was involved in the Atwood shooting. Suarez's uncle collected Ortega and Suarez the next morning to drive them to Texas, but United States Marshalls apprehended the duo in Arizona." (People v. Ortega, supra, G041522.)
"In a joint trial, a jury convicted . . . Ortega of second degree murder [citation] . . . and convicted her boyfriend Jose Suarez of first degree murder [citation] for the gang-related slaying of [Manuel] Rodriguez. The jury found true allegations Ortega committed the murder for the benefit of a criminal street gang [citation] and she vicariously discharged a firearm causing death [citation]." (People v. Ortega, supra, G041522.) Ortega was sentenced to 40 years to life in prison. (Ibid.) We affirmed the judgment in 2011. (Ibid.)
In 2019, Ortega filed the instant petition for resentencing pursuant to former section 1170.95 (now section 1172.6). The prosecution conceded Ortega set forth a prima facie showing of entitlement to relief, and the court issued an order to show cause.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6 with no change in text (Stats. 2022, ch. 58, § 10).
A hearing was held in June 2022. The parties stipulated to the admission of the trial transcripts from the underlying trial, with certain exceptions. Neither party presented additional evidence. The court stated it had read the entire transcript with the exception of the gang expert's testimony, and testimony about a prison conversation between Suarez and another inmate.
The court denied the petition, concluding the prosecutor proved beyond a reasonable doubt Ortega was guilty of second degree murder notwithstanding the changes introduced by Senate Bill 1437. The court reasoned Ortega knowingly aided and abetted Suarez in committing an act dangerous to human life: driving fellow gang members into rival gang territory to confront a rival gang member with a gun. The court found Ortega's trial testimony-that she was simply there to buy drugs and had no idea what Suarez planned-was not credible. The court clarified its finding was based on implied malice, not a specific intent to kill. Ortega appealed.
DISCUSSION
Ortega contends substantial evidence does not support the court's finding that she is guilty of second degree murder beyond a reasonable doubt. We disagree.
Section 1172.6 was enacted pursuant to Senate Bill 1437, which made major changes to theories of vicarious liability for murder. The purpose of Senate Bill 1437 was "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).) The result was the elimination of the doctrine of natural and probable consequences as a viable theory for murder liability. (People v. Strong (2022) 13 Cal.5th 698, 707, fn. 1.) The bill did this by amending section 188, subdivision (a)(3), to state, "[I]n 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." "Senate Bill 1437 also added [former] section 1170.95 to the Penal Code, which creates 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, 957 (Lewis), fn. omitted.)
Prior to Senate Bill 1437, the law permitted a murder conviction without malice under the natural and probable consequences doctrine: "'"A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime."' [Citations.] 'Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.'" (People v. Chiu (2014) 59 Cal.4th 155, 161.)
To obtain relief under section 1172.6, a petitioner must file a petition averring that three conditions are met. First, the petitioner was convicted based on a pleading "that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a)(1).) Second, the petitioner was convicted of, inter alia, murder. (Id., subd. (a)(2).) Third, and perhaps most critically, "[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (a)(3).) Here, one of the theories presented to the jury at Ortega's original trial was vicarious liability under the natural and probable consequences theory.
If the court determines the petitioner has established a prima facie entitlement to relief, the court must issue an order to show cause and must hold a hearing "to determine whether to vacate the murder, attempted murder, or manslaughter 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 ...." (§ 1172.6, subd. (d)(1).) "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (d)(3).) When the court denies a petition after issuing an order to show cause and holding a hearing, we review the court's ruling for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298.)
At the hearing held below, the court found Ortega was guilty of second-degree murder under an implied malice theory. "For purposes of Section 187, malice may be express or implied. [¶] (1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. [¶] (2) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a)(1), (2).) "The concept of implied malice has both a physical and a mental component. [Citation.] The physical component is satisfied by the performance of '"an act, the natural consequences of which are dangerous to life."' [Citations.] The mental component, as set forth earlier, involves an act '"deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life...."'" (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107.) Whether an act is naturally dangerous to life is not analyzed in the abstract; rather, "[t]he very nature of implied malice . . . invites consideration of the circumstances preceding the fatal act." (Id. at p. 107.) "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." (CALCRIM 520, itatlics omitted.)
There is an additional layer of analysis in this case because Ortega was not the actual shooter, but instead was found liable on a theory of direct aiding and abetting. "To be culpable as a direct aider and abettor of implied malice murder, the accomplice 'must, by words or conduct, aid the commission of the life-endangering act.'" (People v. Glukhoy (2022) 77 Cal.App.5th 576, 588.) "The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life." (People v. Powell (2021) 63 Cal.App.5th 689, 713.)
Here, the relevant dangerous act, which Ortega aided and abetted, is Suarez's confrontation to exact revenge on a rival gang member. The evidence showed Ortega knew Suarez wanted to go into Atwood territory to exact revenge for the perceived slight of Atwood gang members driving through La Jolla gang territory. She knew Suarez was armed with a gun. She knew Suarez was armed precisely because this was a dangerous area for them in which a discharge of a firearm was likely. And she knew Suarez had identified a specific victim he intended to confront. In response to that knowledge, the act she performed was turning the car around and stopping near the victim so that Suarez could get out and confront the victim in an act of revenge.
The prosecution relied on the confrontation as the dangerous act, rather than the shooting itself. The prosecution did not present evidence Ortega specifically knew a shooting was going to occur.
The question we must answer is: Could any reasonable judge find beyond a reasonable doubt that Suarez's act of confronting a rival gang member in rival gang territory to exact revenge while armed with a gun was likely to cause death? Our answer is yes. The trial court was within its purview in determining that it was. Moreover, as we discuss below, Ortega's actions leave no doubt she not only aided Suarez in an inherently dangerous act, but also intended to aid him in that act.
Ortega contends the evidence showed the gun was only for defensive use. She argues, "It may be reasonable to believe a death or injury might result in those circumstances," but "there was no evidence that a death was a likely result of the act of driving into the Atwood neighborhood to possibly confront or beat up a rival gang member." "Not every instance in which an individual carries a gun carries a high probability a death will result."
But this was not merely an instance of carrying a gun. This was an instance of going armed into a payback scenario against a specific victim in rival gang territory. That was clearly more dangerous than merely arming oneself for defensive purposes. And whether that was a situation that might result in death or instead was likely to result in death is a fine line that the trial court was empowered to draw in the first instance. Our conclusion is simply that the court did not act unreasonably in concluding that death was likely.
Ortega also argues that "there was no substantial evidence appellant stopped the car at the stop sign intending to aid Suarez in performing the act of jumping out of the car to confront Rodriguez with the gun." (Italics added.) However, the fact Ortega made a U-turn immediately after Suarez identified his victim belies that contention. Ortega goes on to argue there was no evidence to show "that [Ortega] subjectively appreciated that her actions endangered human life ...." We disagree. She was aware that this mission was to exact revenge for the perceived disrespect from Atwood gang members and that Suarez had armed himself because it would be dangerous. While we can never get inside Ortega's mind to precisely see her subjective state of mind, the circumstantial evidence was sufficient to support an inference Ortega intended to aid Suarez in an act inherently dangerous to life.
Finally, Ortega contends her youth (she was 19 years old at the time) precludes a finding that she intentionally aided and abetted Suarez. While it is certainly true that youth is a relevant factor in assessing a defendant's mental state (People v. Harris (2021) 60 Cal.App.5th 939, 960), Ortega has not cited any authority suggesting her youth was determinative in this case. Her youth does not change what she did or the circumstances in which she did it. Her youth was certainly something for the trial court to consider, but it is not determinative of this appeal.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: MOORE, ACTING P. J., DELANEY, J.