Opinion
E083363
09-13-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT CHRISTOPHER ORTIZ, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County. Super. Ct. No. FVA024597 Kyle S. Brodie, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
In April 2006, a jury convicted defendant and appellant Robert Christopher Ortiz of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and four counts of attempted robbery (§§ 664, 211). The jury found numerous enhancement allegations true on multiple counts, including that defendant personally discharged a firearm causing great bodily injury. (§§ 12022.53, subds. (b), (d), 12022.7, subd. (a).) The trial court sentenced defendant to an aggregate term of 25 years in prison.
All further statutory references are to the Penal Code.
In June 2023, defendant filed a petition in propria persona for resentencing under section 1172.6. The trial court appointed counsel, set the matter for a hearing that was continued multiple times, and the prosecutor in January 2024 filed a motion styled as one to "strike" defendant's petition for resentencing. The prosecutor argued in the motion that defendant did not establish a prima facie case for resentencing. The prosecutor noted the jury was not instructed on theories of felony murder or the natural and probable consequences doctrine and that, in the jury's attempted murder finding, "the record of conviction establishes that the petitioner acted with intent to kill ...." Defendant filed no reply.
At the hearing on the motion, the trial court observed that the issue was not whether to "strike the petition as such," but whether defendant made a prima facie case. The court found based on the exhibits submitted by the prosecutor from the case file, including the charging documents, exhibit lists, minutes from the trial and sentencing, the jury instructions and verdict forms at trial, and the sentencing hearing transcript, that "this was not a vicarious liability case." Instead, the record reflected that defendant "was the sole actor and the actual shooter." Seeing "no vicarious liability issues raised in the case at all," the trial court denied the motion, and defendant appealed.
This court appointed counsel, and counsel subsequently filed a no-issue brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Counsel set forth a brief statement of the case and identified two potential issues among others he concluded lacked arguable merit, in the event we were to undertake independent review. First, counsel suggested we might explore whether the court erred in finding defendant was not convicted based on any theory of vicarious liability "or in otherwise dismissing [his] resentencing petition?" And secondly, was there any conceivable issue of ineffective assistance of counsel regarding defendant's resentencing petition? Defense counsel acknowledged independent review is discretionary under Delgadillo.
We gave defendant the opportunity to file a personal supplemental brief. He declined, despite notice that failure to do so could result in dismissal. (See Delgadillo, supra, 14 Cal.5th at p. 232 [absent briefing, appellate court "may dismiss the appeal as abandoned"].) We see nothing here to warrant or suggest we should undertake independent review for arguable resentencing or other postconviction issues.
DISPOSITION
The appeal is dismissed.
CODRINGTON J. FIELDS J.