People v. Ordonez CA2/1 ( 2024 )

Filed 6/26/24 P. v. Ordonez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B329533
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA353311)
v.
RAMON ORDONEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark S. Arnold, Judge. Affirmed.
Steven Samuel Lubliner, 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, Assistant
Attorney General, Wyatt E. Bloomfield and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
The trial court denied petitioner Ramon Ordonez’s
Penal Code section 1172.6 petition for resentencing at the prima
facie stage.1 On appeal, Ordonez argues that the jury could have
convicted him based on imputed malice without expressly finding
that he acted with malice aforethought. We disagree. The jury
necessarily found that Ordonez knowingly and intentionally
assisted in an unlawful killing, which shows he acted with
malice. We affirm the trial court’s order denying his resentencing
petition.
BACKGROUND
1. Petitioner was convicted of second degree murder
In a one-count information, petitioner was charged with the
murder of Manuel Saucedo, and the People alleged gang and
firearm enhancements. The jury convicted petitioner of second
degree murder and found the enhancements true. The original
trial court sentenced petitioner to an indeterminate term of
40 years to life.
2. Summary of facts
Our summary of the facts underlying the murder is based
on petitioner’s summary in the resentencing court because on
appeal, he provided no summary in his opening brief and the
record on appeal does not include a transcript of the trial.2
1 Undesignated statutory citations are to the Penal Code.
2 These facts are set forth in petitioner’s reply brief in the
resentencing court. On appeal, petitioner does not summarize
the facts but merely recites facts for which he “does not adopt the
truth or accuracy . . . .” California Rules of Court, rule 8.204
2
Petitioner was a self-admitted MS-13 gang member. The
shooting that led to the death of Saucedo occurred approximately
at 10:00 p.m. on May 9, 2007 in 18th Street gang territory. One
day before the shooting, a member of the Harpies gang shot at
petitioner and wounded two passengers in his car. “Apparently
the 18th Street gang is aligned with the Harpies gang.”
An eyewitness to the May 9, 2007 shooting observed three
people in a Toyota shoot at Saucedo and heard one yell, “[F]uck
faketeenth!” The eyewitness testified the driver was not the
shooter. The next day, officers arrested petitioner, who was in a
black Toyota Camry with two other persons.
In a pre-trial recorded interview played at trial, petitioner
told officers on the day of the shooting, that petitioner was
driving a Toyota, and was accompanied by “Big Trigger” in a
Honda. Everyone in both vehicles was from petitioner’s gang.
Petitioner explained he was “cruising the neighborhood” “looking
for those fools.” Petitioner said, “ ‘[W]e went to do a
mission . . . .’ ” Petitioner told the officers that he was not a
shooter, but admitted he supplied the shooters with weapons. In
an unrecorded interview, petitioner told officers that the people
in his car shot the victims.
3. Instructions at trial
The trial court did not instruct the jury on the felony
murder doctrine or the natural and probable consequences
doctrine. The court did not instruct the jury on any crime other
than murder.
Thus, the court instructed the jury on aiding and abetting:
requires that an opening brief provide a summary of the
significant facts. (Cal. Rules of Court, rule 8.204(a)(2)(C).)
3
“Persons who are involved in committing or attempting to
commit a crime are referred to as principals in that crime. Each
principal, regardless of the extent or manner of participation, is
equally guilty. Principals include: [¶] 1. Those who directly and
actively commit or attempt to commit the act constituting the
crime or, [¶] 2. Those who aid and abet the commission or
attempted commission of the crime.”
The court identified the elements of aiding and abetting.
“A person aids and abets the commission or attempted
commission of a crime when he or she: [¶] (1) With knowledge of
the unlawful purpose of the perpetrator, and [¶] (2) With the
intent or purpose of committing or encouraging or facilitating the
commission of the crime, and [¶] (3) By act or advice aids,
promotes, encourages or instigates the commission of the crime.”
The court also described the elements of murder.
“Defendant is accused in Count ONE of having committed the
crime of murder . . . . [¶] Every person who unlawfully kills a
human being with malice aforethought is guilty of the crime of
murder . . . . [¶] In order to prove this crime, each of the
following elements must be proved: [¶] 1. A human being was
killed; [¶] 2. The killing was unlawful; [¶] 3. The killing was
done with malice aforethought.”
The court also defined malice for the jury. “ ‘Malice’ may be
either express or implied. [¶] Malice is express when there is
manifested an intention unlawfully to kill a human being. [¶]
Malice is implied when: [¶] 1. The killing resulted from an
intentional act; [¶] 2. The natural consequences of the act are
dangerous to human life; and [¶] 3. The act was deliberately
performed with knowledge of the danger to, and with conscious
disregard for, human life. [¶] When it is shown that a killing
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resulted from the intentional doing of an act with express or
implied malice, no other mental state need be shown to establish
the mental state of malice aforethought.”
The only instruction on second degree murder provided:
“Murder of the second degree is also the unlawful killing of a
human being with malice aforethought when the perpetrator
intended unlawfully to kill a human being but the evidence is
insufficient to prove deliberation and premeditation.” The court
did not instruct the jury on second degree murder based on a
theory of implied malice.
4. Petitioner files a section 1172.6 petition for
resentencing and the resentencing court denies it
Petitioner filed a form petition stating that he was
convicted of murder under the felony murder rule or natural and
probable consequences doctrine and he could not be convicted of
murder under current law. The resentencing court appointed
counsel to represent petitioner. The resentencing court denied
the petition, finding that petitioner had not demonstrated a
prima facie case for eligibility. Petitioner timely appealed.
DISCUSSION
Petitioner argues we should reverse the resentencing
court’s order denying his resentencing petition at the prima facie
stage. We begin with background on the resentencing law and
then consider petitioner’s sole argument that the jury
instructions permitted a conviction based on imputed malice.
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A. The First Step for Section 1172.6 Resentencing Relief
Is Demonstrating a Prima Facie Case of Eligibility
for Relief
“Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) (Stats. 2018, ch. 1015) amended sections 188 and 189 of
the Penal Code to ‘eliminate[ ] natural and probable
consequences liability for murder as it applies to aiding and
abetting, and [to] limit[ ] the scope of the felony-murder rule.’
[Citation.]” (People v. Lee (2023) 95 Cal.App.5th at 1164, 1173.)
Amended section 188 provides that except as stated in the
amended section 189 governing felony murder, “ ‘in 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.’ ” (Lee, at p. 1173,
quoting § 188, subd. (a)(3).) The bill also added former section
1170.95, now numbered section 1172.6, “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.) Relief is potentially available
for “[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, attempted murder under the natural
and probable consequences doctrine, or manslaughter.”
(§ 1172.6, subd. (a), italics added.)
Petitioners may seek the relief contemplated by the statute
by “fil[ing] a resentencing petition . . . alleging they could not
currently be convicted of murder because of the changes in the
law required by Senate Bill No. 1437.” (People v. Hurtado (2023)
89 Cal.App.5th 887, 891.) “If [a] petitioner ma[kes] a prima facie
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showing for relief, the trial court [is] required to issue an order to
show cause for an evidentiary hearing.” (Ibid., citing § 1172.6,
subd. (c).) If the record of conviction demonstrates that the
petitioner is ineligible for relief as a matter of law, the
resentencing court may deny the petition at the prima facie
stage. (People v. Lewis, supra, 11 Cal.5th at pp. 970–972; People
v. Cortes (2022) 75 Cal.App.5th 198, 206.) We review de novo a
petition denied at the prima facie stage. (People v. Lee, supra,
95 Cal.App.5th at p. 1174; People v. Ervin (2021) 72 Cal.App.5th
90, 101.)
B. As a Matter of Law, the Jury Instructions
Demonstrate that Petitioner Cannot State a Prima
Facie Case of Eligibility for Resentencing
Petitioner argues that the resentencing court erred in
denying his petition at the prima facie stage because “[t]he
deficient instructions on aiding and abetting implied malice
second-degree murder improperly imputed the shooter’s implied
malice to appellant.” We disagree.
First, the jury was instructed only on express malice second
degree murder. As noted in our Background, part 3, ante, the
jury was instructed that “[m]urder of the second degree is also
the unlawful killing of a human being with malice aforethought
when the perpetrator intended unlawfully to kill a human being
but the evidence is insufficient to prove deliberation and
premeditation. If the perpetrator intended to kill a human being,
the perpetrator acted with express malice.” Although the court
defined implied malice, it did not instruct the jury that the jury
could convict of second degree murder based on implied malice.
The petitioner is incorrect that the jury could “have heard the
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instructions on implied malice murder” because the trial court
did not give that instruction.3
Second, the jury necessarily concluded that petitioner
harbored malice. Under the given instructions, the jury would
have to find the aider and abettor had to know the perpetrator
intended to commit murder—the only charged offense. The
aiding and abetting instruction required the jury to find the
petitioner with knowledge of the perpetrator’s unlawful purpose
and with the intent or purpose of encouraging or facilitating the
crime by act or advice aided in the commission of the crime.
Further the jury was instructed that murder requires “[t]he
killing was done with malice aforethought.” “Absent some
circumstance negating malice[,] one cannot knowingly and
intentionally help another commit an unlawful killing without
acting with malice.” (People v. McCoy (2001) 25 Cal.4th 1111,
1123.) Thus the jury necessarily found that petitioner harbored
malice when he aided and abetted the perpetrator to commit an
unlawful killing.
Petitioner contends People v. Langi (2022) 73 Cal.App.5th
972 (Langi) demonstrates he was entitled to an evidentiary
hearing. It does not.
3 CALJIC No. 8.31, which the trial court did not give,
provides: “Murder of the second degree is [also] the unlawful
killing of a human being when: [¶] 1. The killing resulted from
an intentional act, [¶] 2. The natural consequences of the act are
dangerous to human life, and [¶] 3. The act was deliberately
performed with knowledge of the danger to, and with conscious
disregard for, human life. [¶] When the killing is the direct
result of such an act, it is not necessary to prove that the
defendant intended that the act would result in the death of a
human being.”
8
In Langi, the petitioner and his confederates beat and
robbed a victim who died after one of them punched the victim,
causing the victim to fall and hit his head. (Supra,
73 Cal.App.5th at p. 975.) In contrast to the case before us, the
trial court in Langi instructed the jury pursuant to CALJIC
No. 8.31 that a killing committed with implied malice is a second
degree murder. (Id. at p. 981.) The jury found the petitioner
guilty of robbery, battery, and second degree murder. (Id. at
p. 977.) After the resentencing court denied the petitioner’s
petition for resentencing, the appellate court reversed, holding
that the petitioner could “have intended to encourage” only
punching the victim, not killing the victim. (Id. at p. 983.) The
appellate court explained, “Since the perpetrator’s purpose need
not have been to kill the victim, the aider and abettor’s
knowledge of that purpose similarly need not have been
knowledge that the perpetrator aimed to kill. If the perpetrator
need not have had ‘murderous intent,’ certainly the aider and
abettor need not have had such an intent.” (Id. at pp. 982–983.)
Here, in contrast to Langi, to convict petitioner of second
degree murder, the instructions required the jury find that the
perpetrator harbored intent to kill. To repeat—the only theory of
second degree murder given to the jury was that “the perpetrator
intended unlawfully to kill a human being . . . .” In this case, in
contrast to Langi, the trial court did not instruct the jury on
implied malice second degree murder. Petitioner’s reliance on
Langi is therefore misplaced.4
4 Although the parties dispute whether Langi was
correctly decided, given the instructions here, we do not enter
this jurisprudential fray.
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In sum, given the trial court’s instructions, the jury
necessarily found petitioner knowingly and intentionally assisted
in an unlawful killing. Petitioner did not establish a prima facie
case of eligibility for resentencing under section 1172.6 because
he was not convicted under the natural and probable
consequences theory, felony murder doctrine, or any other theory
of imputed malice. (People v. Lee, supra, 95 Cal.App.5th at
p. 1174 [if the record of conviction shows petitioner is ineligible
for resentencing as a matter of law, the resentencing court may
deny the petition without issuing an order to show cause]; see
People v. Cortes, supra, 75 Cal.App.5th at pp. 204–205
[concluding that a defendant failed to make a prima facie
showing because “the jury was not instructed on any theory of
liability for murder . . . that required that malice be imputed to”
the defendant “based solely on [his] participation in a crime”].)
DISPOSITION
The trial court’s order denying Ramon Ordonez’s
Penal Code section 1172.6 resentencing petition is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J. WEINGART, J.
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