Opinion
B300776
03-03-2022
THE PEOPLE, Plaintiff and Respondent, v. SERGIO ORTIZ, Defendant and Appellant.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Marc A. Kohm, Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo (Super. Ct. No. F000270432003), Jacquelyn H. Duffy, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Marc A. Kohm, Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
YEGAN, J.
Appellant Sergio Ortiz was convicted of second degree murder in 1998. (Pen. Code, §§ 187, subd. (a), 189.) We affirmed the judgment of conviction in an unpublished opinion. (People v. Garcia et al. (July 23, 2001, B126854) (Garcia).) In 2019 1 appellant 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. 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.
All statutory references are to the Penal Code.
In 2021 we affirmed the trial court's order in an unpublished opinion. (People v. Ortiz (Mar. 17, 2021, B300776.) We concluded that appellant was not entitled to section 1170.95 relief because substantial evidence in the record of conviction shows that, under current law, he could be convicted of murder based on an implied malice theory.
The California Supreme Court granted review (S268306). On December 29, 2021, the Supreme Court transferred the cause back to us "with directions to vacate [our 2021] decision and reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th 952, 971-972 [Lewis], and Senate Bill No. 775 [S.B. 775] (Stats. 2021, ch. 551)."
We vacate our 2021 decision and reverse the trial court's order denying appellant's petition. We remand the matter to the trial court with directions to issue an order to show cause and conduct a hearing as required by section 1170.95.
Facts
The facts are taken from the statement of facts at pages 2-5 of our nonpublished Garcia 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' 2 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. . . .
"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 3 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 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.' 4
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 down' the escalation in violence between Paso 13 and NCS and had 'put [Paso 13] back on top.'"
S.B. 1437 and S.B. 775
S.B. 1437 became effective on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) 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. (Stats. 2018, ch. 5 1015, § 3.) It also amended section 188 to add subdivision (a)(3), which "eliminates natural and probable consequences liability for first and second degree murder." (People v. Gentile (2020) 10 Cal.5th 830, 849.)
Section 1170.95, added by S.B. 1437, gives retroactive effect to the changes in sections 188 and 189. Effective January 1, 2022, section 1170.95 was amended by S.B. 775. (Stats. 2021, ch. 551.) As amended, section 1170.95 provides in relevant part, "A person convicted of felony murder or 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, . . . 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. (Id., subd. (a).) One of the conditions is that "[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).) 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).)
"[T]he court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).) "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 on any remaining counts in the same manner as if the petitioner had not previously been 6 sentenced . . . ." (Id., 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 . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (d)(3).)
People v. Lewis
In Lewis, supra, 11 Cal.5th at pp. 971-972, our Supreme Court gave guidance to trial courts on how they should proceed in determining whether the petitioner has made a prima facie case for relief. The Supreme Court stated: "While the trial court may look at the record of conviction . . . to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, '"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.] . . . [¶] . . . In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' . . . [T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
In section 1(b) of S.B. 775, the legislature declared that the legislation "[c]odifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding . . . the standard for determining the existence of a prima facie case." 7
We Accept the People's Concession that the Order Denying Appellant's Petition Must Be Reversed
In support of his section 1170.95 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 Garcia 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."
The People concede: "Appellant's section 1170.95 petition stated a prima facie case that he is potentially eligible for relief; accordingly, the matter should be remanded to the trial court to issue an order to show cause and hold an evidentiary hearing. (Bold omitted.)
Based on Lewis and S.B. 775, we accept the People's concession. The record on appeal in Garcia does not "'conclusively refute [appellant's assertions in the petition] as a matter of law.'" (People v. Davenport (2021) 71 Cal.App.5th 476, 481.)
Disposition
Our 2021 decision is vacated. On reconsideration of the cause in light of Lewis, supra, 11 Cal.5th at pp. 971-972, and S.B. 775, we reverse the order denying appellant's section 1170.95 8 petition. The cause is remanded to the trial court with directions to issue an order to show cause and conduct a hearing as required by section 1170.95.
We concur: GILBERT, P. J., PERREN, J. 9