People v. Cortes ( 2022 )

Filed 2/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B312185
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA064923)
v.
BENITO CORTES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________________
In 2007, defendant and appellant Benito Cortes was
convicted of one count of first degree murder and one count of
premeditated attempted murder. In 2020, Cortes filed a petition
pursuant to Senate Bill No. 1437 (Senate Bill 1437) and Penal
Code section 1170.95,1 which provide for vacatur of a murder
conviction obtained under the natural and probable consequences
doctrine, and resentencing. Cortes appeals the trial court’s order
denying his petition on the basis that Cortes failed to make a
prima facie showing of entitlement to relief.
We affirm the trial court’s order.
FACTS AND PROCEDURAL HISTORY
The Shootings
At approximately 4:15 p.m. on February 9, 2005, witnesses
saw Cortes driving his car past a liquor store with three male
passengers. The car stopped and between four and five gunshots
were fired, killing the victim but missing his companion. One
witness saw two Latino men commit the shooting. The witness
was unable to identify Cortes in a line-up, but at trial the witness
stated that Cortes looked like one of the shooters. Evidence was
presented that the shooting was gang-related. (People v. Cortes
(Jun. 17, 2009, B206770) [nonpub. opn.].)
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
Trial and Direct Appeal
At trial, the jury was instructed that it could find Cortes
guilty of murder as a direct perpetrator or as a direct aider and
abettor. The trial court did not instruct on felony murder or the
natural and probable consequences doctrine.
In closing argument, the prosecutor told the jury it could
find Cortes guilty either as a direct aider and abettor or as a
perpetrator. With respect to aiding and abetting, the prosecutor
argued:
“There were several people that were part of this incident,
defendant Cortes being one of them. And the law is going to
instruct you on principals.
“Now, I wasn’t there. And often we have incidents where if
we do have any witnesses to an incident, witnesses see different
things, as you know and are aware. They see it from different
positions. But you may have incidents where witnesses don’t see
everything or witnesses aren’t inside the car when things are
happening prior to shootings. Principals. So, therefore, you just
don’t know exactly -- or the evidence won’t show exactly who did
what when. An aider and abettor is considered to be a principal.
One who aids and abets is not only guilty of that particular crime
in which that person aided and abetted but is also guilty of any
crimes committed by a principal which are the natural and
probable consequences of the crimes originally aided and abetted.
That is principals. Talks [sic] about this aiding and abetting.
“The law goes further to define aiding and abetting. A
person who aids and abets the commission of a crime -- that’s
done when they have the knowledge of the unlawful purpose of
the perpetrator. With the intent or purpose of committing,
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encouraging, facilitating the commission of the crime by act or
advice, aids, promotes or encourages or instigates the commission
of the crime.
“Common example used is the getaway driver in a bank
robbery. I jump in my car, and I throw a couple of my buddies in
the car with me. Three or four pile in the car. I drive down the
street to the local Wells Fargo. We have our bandanas, guns.
Several people with me. Kind of divvy out who is responsible for
what. I’m just going to be the getaway driver. I’m going to use
my car. I’m going to get those folks over to Wells Fargo. They
are going to go in and do their thing and come out. And hopefully
everything will work out great. And we jump on the 710 and out
of here, and no one knows the difference, and no one catches us.
“Our laws take that into consideration. And aiding and
abetting does not mean I get a free ride because I did not break
that threshold and go inside that Wells Fargo. I did not take a
gun or have a gun and walk up and stick up the teller. I did not
grab the money inside the branch and carry it out to the car. All
I did is I sat in that car, and I was aiding. I was certainly
assisting both by bringing these individuals to the Wells Fargo
and then getting them out of there before hopefully we get
caught.
“I can use all kinds of examples. The fact is that you can go
and assist and do a murder and an attempted murder, and you
don’t even have to touch the gun. You don’t even have to be the
trigger puller. You don’t even need to be there. The law will tell
you can still be a principal and still be held just as responsible
under the aiding and abetting theory. You are a principal or a
participant and met the criteria. If you have the knowledge of
the unlawful purpose, and it was with the intent or purpose of
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committing or encouraging or facilitating, helping in the
commission of the crime by act or advice or aids, promotes,
encourages, you are guilty of the same crimes.
“Now, whether the defendant Cortes got out of his car and
actually was one of the shooters, whether he just stayed in his
car, whether he ran to the bathroom or not or drove in his car and
got out of there after, none of that really matters. Based on the
evidence of this case and what happened, it is clear that
defendant Cortes was in his car. It is clear that he was seen by
witnesses with other individuals. People see what is going on in
the car as far as the bandanas.” (Italics added.)
The jury found Cortes guilty of one count of first degree
murder (§ 187, subd. (a) [count 1]) and one count of premeditated
attempted murder (§§ 664/187, subd. (a) [count 2]). The jury
further found true as to count 1 that a principal discharged a
firearm causing great bodily injury and death (§ 12022.53, subds.
(b)–(d) & (e)(1)), and found true as to count 2 that a principal
used and discharged a firearm (§ 12022.53, subds. (b), (c) &
(e)(1)). The jury found true gang allegations as to both counts.
(§ 186.22, subd. (b).)
Cortes was sentenced to 50 years to life plus 10 years in
count 1 and a consecutive term of life plus 30 years in count 2.
On direct appeal, Cortes challenged the sufficiency of evidence
upon which the jury convicted him of the gang enhancements and
the imposition of firearms enhancements based on gang
enhancements, as well as matters relating to his sentence. The
Court of Appeal made certain sentencing modifications but
otherwise affirmed the trial court’s judgment. (People v. Cortes,
supra, B206770 [nonpub. opn.].)
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Section 1170.95 Petition
Cortes filed a petition for resentencing under section
1170.95 on March 9, 2020.
On July 21, 2020, the People responded to the petition,
arguing that Cortes was not eligible for relief because the jury
was not instructed on felony murder or the natural and probable
consequences theory of liability for murder. The People attached
the prior appellate opinion, the verdicts, and the instructions
given by the trial court.
On October 22, 2020, Cortes’s appointed counsel filed a
reply to the People’s response. Cortes contended that he was
never identified as the actual shooter, and the jury was
instructed on aiding and abetting, which allowed it to “impute”
malice to him without making a finding that Cortes personally
harbored malice. Additionally, the prosecutor relied on the
natural and probable consequences doctrine in closing argument.
Nothing in the record conclusively established that Cortes had
the intent to kill.
At a hearing on eligibility on April 20, 2021, the court
found Cortes ineligible for resentencing, stating that the
conviction was based on an implied malice theory of liability for
murder. The court relied heavily on the appellate court’s opinion,
which it characterized as focusing on the fact that Cortes had the
specific intent to advance the cause of the gang to which he
belonged, and “murder and attempted murder are targets which
are the purpose of a gang.” Based on the law and evidence
presented, the court found Cortes “could have been, was indeed
convicted under the implied malice theory which is still valid.”
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DISCUSSION
Cortes contends that he made a prima facie case of
entitlement for resentencing. He argues that, although the jury
was not instructed on the natural and probable consequences
theory of murder, it may have convicted him under that theory
because the prosecutor mentioned the natural and probable
consequences doctrine in closing argument. Cortes asserts that
the prosecutor’s closing arguments were “equally applicable to
appellant having the knowledge and intent to aid and abet in an
assault with a firearm the natural and probable consequence of
which was his confederate’s commission of the murder and
attempted murder.” Cortes contends that section 1170.95 and
the amendments to sections 188 and 189 effected by Senate Bill
No. 775 (Stats. 2021, ch. 551, §§ 1–2) (Senate Bill 775), which was
enacted while his appeal was pending, apply to his attempted
murder conviction as well as his murder conviction.
The People argue that the trial court properly denied
Cortes’s petition on the basis that he failed to make a prima facie
showing of eligibility. Cortes could not demonstrate that he was
convicted of either murder or attempted murder under the
natural and probable consequences doctrine because the jury was
not instructed on that theory of liability.
Senate Bills 1437 and 775
Senate Bill 1437 was enacted 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
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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.) Senate Bill 775 became effective
while this appeal was pending. The legislation modifies section
1170.95 to clarify “that persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and the
natural probable consequences doctrine are permitted the same
relief as those persons convicted of murder under the same
theories.” (Stats. 2021, ch. 551, § 1.)
Pursuant to amended 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, 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, or
attempted murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of murder,
attempted murder, or manslaughter following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could have
been convicted of murder or attempted murder[;] [¶] [and] (3) The
petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also
§ 1170.95 subd. (b)(1)(A).) Additionally, the petition shall state
“[w]hether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1)(C).)
“Upon receiving a petition in which the information
required by this subdivision is set forth or a petition where any
missing information can readily be ascertained by the court, if
8
the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner.” (§ 1170.95, subd. (b)(3).)
The prosecutor shall file a response within 60 days of the service
of the petition, and the petitioner may file a reply within 30 days
of the response. (§ 1170.95, subd. (c).) When briefing has been
completed, “the court shall hold a hearing to determine whether
the petitioner has made a prima facie case for relief.” (Ibid.) In
determining whether a petitioner has made a prima facie
showing of entitlement to relief, the trial court’s inquiry will
necessarily be informed by the record of conviction, which will
facilitate the court in distinguishing “petitions with potential
merit from those that are clearly meritless.” (People v. Lewis
(2021) 11 Cal.5th 952, 971.) “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).)
Analysis
We conclude that Cortes failed to make a prima facie
showing that he was entitled to relief because the record of
conviction demonstrates that he was convicted of murder and
attempted murder either as a perpetrator or a direct aider and
abettor, and not under the natural and probable consequences
doctrine, or indeed any theory under which malice is imputed to a
person based solely on that person’s participation in a crime. In
so doing, we decline to address the trial court’s reasons for
denying the petition, as we may affirm a ruling that is correct in
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law on any ground.2 (People v. Turner (2020) 10 Cal.5th 786,
807.)
As Cortes concedes, the jury was not instructed on any
theory of liability for murder or attempted murder that required
that malice be imputed to him. He is therefore ineligible for
resentencing under section 1170.95, subdivisions (a) and (b).
Cortes attempts to circumvent this result by asserting that the
prosecutor “argued” the natural and probable consequences
theory at trial by stating: “One who aids and abets is not only
guilty of that particular crime in which that person aided and
abetted but is also guilty of any crimes committed by a principal
which are the natural and probable consequences of the crimes
originally aided and abetted.” Cortes argues that the other
statements the prosecutor made in support of the direct aiding
and abetting theory “were equally applicable to appellant having
the knowledge and intent to aid and abet in an assault with a
firearm the natural and probable consequence of which was his
confederate’s commission of the murder and attempted murder.”
Cortes overlooks the fact that the prosecution did not argue at
any point during trial, including closing argument, that a crime
other than murder or attempted murder was committed, and no
other crime was charged or at issue throughout the trial. In
particular, the prosecution did not allege that Cortes aided and
abetted an assault with a deadly weapon, and therefore we find
2 Cortes also argues that the trial court erred in concluding
that he failed to make a prima facie case for relief, because the
court relied on the jury’s gang enhancement findings, which were
not relevant, and employed an incorrect legal standard. In light
of our resolution of the matter, we need not address the propriety
of the trial court’s reasoning.
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no merit in Cortes’s suggestion that the jury may have, without
instruction, relied on such a charge. At the very least, the
evidence presented and arguments made might support that
Cortes aided and abetted a shooting and acted with implied
malice—a theory of murder that is still valid. (People v. Gentile
(2020) 10 Cal.5th 830, 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”]; People v. Rivera (2021) 62 Cal.App.5th 217, 232 [implied
malice remains valid theory of second degree murder].)
Moreover, we presume a jury understands and follows the
court’s instructions, and “‘treat[s] the court’s instructions as a
statement of the law by a judge, and the prosecutor’s comments
as words spoken by an advocate . . . .’ [Citation.]” (People v.
Cortez (2016) 63 Cal.4th 101, 131.) Here, the trial court advised
the jury that counsel’s arguments were not evidence (CALJIC No.
1.02), and that the jury was to follow the instructions given by
the court even if counsel’s comments conflicted with those
instructions or the jury disagreed with the court’s instructions
(CALJIC No. 1.00). The court then instructed the jurors that
they could find Cortes guilty of murder and attempted murder
under only two theories: that he was a direct perpetrator or that
he was a direct aider and abettor of the crimes. The prosecutor
made a single comment on a legal theory in closing that was not
presented in the case. Nothing in the charges, the instructions,
or the balance of the trial permitted the jury to find Cortes guilty
on a theory other than direct aiding and abetting or liability as a
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perpetrator of murder and attempted murder. There is no
indication in the record to suggest that the jury did not, in fact,
follow the court’s instructions. Cortes’s mere speculation that the
jurors convicted him of murder and attempted murder because he
committed some other unidentified and uncharged crime,
contrary to the trial court’s instructions, does not overcome the
presumption that the jury properly performed its duty. (People v.
Williams (2015) 61 Cal.4th 1244, 1279 [speculation insufficient to
overcome presumption that jury followed court’s instructions]; see
also People v. Johnson (2015) 61 Cal.4th 734, 770 [where nothing
in the record suggested that the jury did not follow court’s
instructions, presumption that the jury followed instructions is
not overcome].) Because the record of conviction demonstrates
that Cortes was not convicted on a theory of vicarious liability, he
has failed to meet his burden of making a prima facie showing of
entitlement to relief under section 1170.95.
DISPOSITION
The trial court’s order denying Cortes’s section 1170.95
petition for resentencing is affirmed.
MOOR, J.
We concur:
RUBIN, P.J. BAKER, J.
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