People v. Ortiz CA2/8 ( 2024 )

Filed 10/28/24 P. v. Ortiz CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B329118
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. LA069901
v.
EVIN ADONIS ORTIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Gregory A. Dohi, Judge. Reversed and
remanded with instructions.
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, Assistant
Attorney General, and Idan Ivri Deputy and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
After a jury convicted Evin Ortiz of first degree murder,
premeditated attempted murder, and second degree robbery, the
trial court sentenced him to life without parole. Pursuant to a
section 1172.6 petition, the trial court later resentenced Ortiz to
five years based on two second degree robbery charges. Ortiz
appeals, arguing the trial court erred in sentencing him to two
robbery charges instead of one. We agree and reverse for the
trial court to vacate the second robbery charge and resentence
Ortiz accordingly. Citations are to the Penal Code.
I
We recount the underlying facts briefly. Our previous
opinion People v. Ortiz (2016) B257413, 2016 WL 1178972[nonpub. opn.] gives details.
A
Ortiz and two confederates, Rene Ramirez and Edwin
Bonilla, saw 68-year-old Manuel Flores at a swap meet. The
three men followed Flores to his home in Ortiz’s girlfriend’s car
and parked around the corner. The three accosted Flores in his
driveway. Ramirez grabbed a gold chain from Flores’s
neck. Bonilla took Flores’s keys and wallet. The three began to
leave. Flores yelled, “Help me. They are stealing from
me.” Ramirez turned back to Flores and shot at him, missing and
striking a gate post before running after the other two men.
Flores’s grandson, Danilo Morales, came running out of the
house and chased the three. Bonilla got in the driver’s seat,
while Ortiz got in the front passenger seat. Ramirez got in the
driver’s side back seat. As the car began to move, Morales caught
up and pounded on the car’s back window.
Ramirez shot again, hitting Morales in the forehead and
killing him.
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The police soon traced the description of the car to Ortiz
and identified Bonilla and Ramirez. A jury convicted all three of
the first degree murder of Morales while engaged in a robbery,
the premeditated attempted murder of Flores, and the robbery of
Flores. The trial court sentenced Ortiz to life in prison without
parole on the murder charge and seven years to life on the
attempted murder charge.
B
Ortiz petitioned for resentencing under section 1172.6,
arguing he had not been a major participant who acted with
reckless indifference to human life. The trial court appointed
counsel for Ortiz, and the parties filed a series of briefs based on
the evolving case law. The trial court continued the hearing
several times, waiting for the California Supreme Court to issue
guidance regarding two of the key issues in the case: whether
section 1172.6 relief applied to attempted murder convictions and
whether Ortiz’s post-People v. Banks (2015) 61 Cal.4th 788 but
pre-People v. Clark (2016) 63 Cal.4th 522 felony murder special
circumstance conviction rendered him ineligible for relief as a
matter of law. After the Supreme Court issued People v. Strong
(2022) 13 Cal.5th 698 and the legislature clarified in Senate Bill
No. 775 (2021–2022 Reg. Sess.) that the statute did cover
attempted murder convictions, the court held an evidentiary
hearing on December 13 and 20, 2022. Neither side introduced
additional evidence.
On February 1, 2023, the trial court issued a tentative
decision granting the petition to vacate the murder and
attempted murder charges and resentencing Ortiz on the
remaining robbery conviction. The prosecutor argued the murder
charge should be redesignated as a second robbery charge. The
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court set a future hearing to allow the court and parties to
research and brief the issue. After the next hearing, the trial
court adopted the prosecutor’s position. The trial court issued a
written decision finding section 1172.6 relief was appropriate
because Ortiz did not act with reckless indifference to human
life. The trial court cited People v. Silva (2021) 72 Cal.App.5th
505, 532, for the proposition that it had “considerable discretion
in redesignating” the convictions and “resentencing a petitioner
to an appropriate term of years based on his or her individual
culpability.” The court used this discretion to find beyond a
reasonable doubt that the record supported finding Morales was
a robbery victim and therefore redesignated the felony murder
charge to a second robbery charge.
The court resentenced Ortiz to five years. Because Ortiz
had already served about 11 years, he was released immediately
on parole.
II
Ortiz correctly argues the trial court erroneously
redesignated the murder charge as a second robbery charge.
In 2019, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437) to make sentencing for
murder convictions more commensurate with each defendant’s
individual level of culpability. (People v. Arellano (2024) 16
Cal.5th 457, 472 (Arellano).) To achieve this, Senate Bill 1437
changed the law about implied malice murders, including
convictions based on felony murder and natural and probable
consequence theories. (Arellano, supra, at pp. 467–468.) The bill
also included a mechanism to allow defendants already convicted
who could not be convicted of murder under the newly changed
laws to seek resentencing. (Id. at p. 468.)
4
Where defendants prove entitlement to relief — in other
words, that they could not be convicted of murder under the
current law — the statute directs the trial court to vacate the
murder or attempted murder conviction and any associated
allegations and enhancements. (§ 1172.6, subd. (d)(3).) The court
shall then resentence the petitioner on the remaining
charges. (Ibid.) Where the prosecutor charged the defendant
with murder generically and did not charge the underlying felony
or target offense, the trial court shall redesignate the conviction
as the underlying felony or target offense for purposes of
resentencing. (§ 1172.6, subd. (e).)
The parties disagree which subdivision applies here.
We review questions of statutory interpretation
independently. (People v. Lewis (2021) 11 Cal.5th 952, 961.)
As a threshold matter, the prosecutor argues Morales is
also a robbery victim under the case law because he had a special
relationship with Flores, as his cohabitating grandson and
because the owner, Flores, specifically asked for help, authorizing
Morales to retrieve the stolen objects. (See People v. DeFrance
(2008) 167 Cal.App.4th 486, 498–499 [recognizing mother as
additional victim of robbery of son’s car based on familial
connection]; People v. Bekele (1995) 33 Cal.App.4th 1457, 1462
[worker’s request for help when he saw his truck being
burglarized authorized co-worker to act in representative
capacity and coworker was therefore also robbery victim].) Ortiz
does not contest this point.
Ortiz correctly argues, however, that the prosecutor here
charged the underlying felony, robbery, so the trial court is
operating under subdivision (d)(3) of section 1172.6. The
prosecutor argues the felony underlying Morales’s murder was
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the robbery of Morales, not Flores, so the prosecutor did not
charge the underlying felony, and the trial court is operating
under subdivision (e) of section 1172.6.
The California Supreme Court recently considered a
similar question. While its decision did not confront the exact
question we face, its analysis is instructive.
In People v. Arellano, the Supreme Court considered
whether a trial court had discretion to add an uncharged and
unproven allegation or enhancement when resentencing a
petitioner under subdivision (e) of section 1172.6. (Arellano,
supra, 16 Cal.5th at p. 464.) The court answered in the
negative. (Ibid.)
In doing so, the court emphasized “an underlying felony or
target offense is fundamentally distinct from a sentence
enhancement or allegation.” (Arellano, supra, 16 Cal.5th at p.
474.) Importantly, the existence of an underlying felony or target
offense is a predicate for relief under section 1172.6. (Arellano,
supra, 16 Cal.5th at p. 474.) “Consequently, the ‘target offense or
underlying felony’ under section 1172.6, subdivision (e) is the
offense or felony that was the predicate for relief in the first place
— i.e., the offense or felony that supported the prosecution’s
theory of felony murder . . . .” (Id. at pp. 474–475.) In support of
this proposition, the Court cited section 1172.6, subdivision (a)(1)
and People v. Fouse (2024) 98 Cal.App.5th 1131 (Fouse).
(Arellano, supra, 16 Cal.5th at pp. 474–475.) Identifying the
underlying felony was appropriate for a resentencing proceeding,
but determining uncharged and unproven enhancements and
allegations would “more closely resemble a new prosecution.” (Id.
at p. 475.)
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The language in other parts of the statute and the
structure of the statute bolstered this interpretation. (Arellano,
supra, 16 Cal.5th at pp. 470–472.) While the statute laid out in
detail how a trial court should determine whether a defendant
could still be found guilty of murder under the new law, the
statute offered no such detail in subsection (e) of section 1172.6,
suggesting such factfinding generally would not be
necessary. (Arellano, supra, 16 Cal.5th at pp. 470–472.)
Similarly, the language in subdivision (d)(3) of section 1172.6
made clear the court was to resentence only on the remaining
charges, “not charges that could have been established by the
evidence,” and there was nothing to suggest a different result
under subdivision (e) of section 1172.6. (Arellano, supra, 16
Cal.5th at p. 470.)
The Supreme Court addressed the bounds of the trial
court’s discretion and factfinding in another way as well. The
prosecution had argued the Legislature’s stated goal of
addressing individual culpability supported reading authority to
impose enhancements into the statute. The court rejected this
argument. (Arellano, supra, 16 Cal.5th at p. 476.) It was true
“the Legislature sought to ‘fairly address[ ] the culpability of the
individual,’ but it sought to do so “in a particular way: by
‘amend[ing] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder.’ ” (Ibid.) Thus,
the legislature’s two expressed goals of “limit[ing] convictions and
subsequent sentencing so that the law of California fairly
addresses the culpability of the individual and assists in the
reduction of prison overcrowding” did not suggest a discretion “so
unbounded as to direct courts to evaluate culpability anew by
adding enhancements and allegations to the underlying felony or
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target offense that were not previously charged and then proven
at trial.” (Id. at pp. 472, 476.) Indeed, “[l]imiting resentencing to
the ‘remaining counts’ or ‘remaining charges’ (§ 1172.6, subds.
(a), (d)(1) & (3)) — or when the murder was charged ‘generically,’
to the ‘target offense or underlying felony’ (id., subd. (e)) — is at
the very least consonant with Senate Bill No. 1437’s legislative
purpose.” (Id. at p. 472.)
We apply those principles to this case.
Ortiz’s eligibility for section 1172.6 relief is predicated on
an underlying felony, “i.e., the offense or felony that supported
the prosecution’s theory of felony murder.” (Arellano, supra, 16
Cal.5th at p. 475.) Here, the record shows that felony was the
robbery of Flores. Although the record contains evidence to
support a charge of robbery of Morales, the prosecution has not
shown that this was the theory it relied on at trial. We focus on
the charges brought and arguments presented, “not charges that
could have been established by the evidence.” (Id. at p. 470.)
Because the prosecution has not pointed to where in the record it
argued the robbery of Morales supported the felony murder
theory, that robbery cannot be considered the “underlying felony”
for purposes of resentencing under section 1172.6.
The Supreme Court’s cite to Fouse supports this
interpretation. (See Arellano, supra, 16 Cal.5th at pp. 474–
475.) A jury convicted Fouse of two counts of attempted murder
of a peace officer, three counts of first degree robbery, one count
of assault likely to cause great bodily injury, and one count of
conspiracy to commit first degree robbery. (Fouse, supra, 98
Cal.App.5th at p. 1133.) After a successful petition for
resentencing, the trial court redesignated the two counts of
attempted murder of a police officer to assaults with a firearm on
8
a peace officer and felony evading a police officer. (Id. at p.
1142.) The court of appeal reversed, holding that the underlying
felony for the felony murder charges was robbery. (Id. at pp.
1149–1150.) Because Fouse had been convicted of robbery,
subdivision (d)(3) of section 1172.6 applied and the trial court did
not have discretion to redesignate the attempted murder
counts. (Fouse, supra, 98 Cal.App.5th at pp. 1144–1146.) As in
this case, this left a victim, at least one peace officer,
unaddressed in Fouse’s final sentence.
We sympathize with the trial court’s distaste for imposing a
sentence that does not reflect the tragedy of Morales’s
involvement with this crime. However, we think the Supreme
Court’s reliance on Fouse as well as its reasoning in Arellano
supports this result, as unpalatable as it may be.
While the Legislature did cite proportionality of
punishment as a goal of section 1172.6, it also emphasized
reduction of prison crowding, and delineated particular areas of
discretion for the trial court. That discretion did not extend to
designating as an underlying felony one that the prosecutor did
not rely on at trial. (Accord People v. Patterson (2024) 99
Cal.App.5th 1215, 1225–1226 [“subdivision (e) only permits
redesignation of a felony-murder conviction to the underlying
felony(ies) on which the defendant’s felony-murder conviction was
actually based”].)
Because subdivision (d)(3) of section 1172.6 governed the
trial court here, the prosecutor’s citations to cases decided under
subdivision (e) of section 1172.6 are inapposite.
9
DISPOSITION
We reverse the trial court’s order resentencing Ortiz to two
counts of second degree robbery and remand for the trial court to
resentence Ortiz consistent with this opinion.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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