People v. Ortega CA2/2

Filed 10/4/22 P. v. Ortega CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B312874
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. KA075836)
ALFRED FOREST ORTEGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. William C. Ryan, Judge. Affirmed.
Nancy L. Tetreault, 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, Noah P. Hill and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant and appellant Alfred Forest Ortega appeals from
the postjudgment order denying his petitions for recall of his
sentence and resentencing pursuant to Penal Code sections
1170.126 and 1170.18.1 He contends that the trial court abused
its discretion in finding him unsuitable for recall and
resentencing.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior Criminal Proceedings
As a teenager, Ortega ran afoul of the law numerous times.
From 1981 to 1983, he racked up sustained charges for, among
other things, prowling (§ 647, subd. (h)), burglary (§ 459),
trespassing (§ 602.5), and battery (§ 242).
In 1984, at age 17, Ortega was convicted of robbery (§ 211)
and causing great bodily injury (§ 12022.7). In the course of the
robbery, he placed a gun to the victim’s head and threatened to
kill him. When the victim attempted to get control of the gun,
Ortega knocked him to the ground and beat him before fleeing in
the victim’s car. Ortega was tried as an adult and sentenced to
six years in state prison.
In 1991, Ortega was charged with attempted murder
(§ 664), including a gang allegation (§ 186.22). Ortega and
several fellow gang members had surrounded a car driving to a
local bar, forcing the car to stop. Ortega challenged the driver to
a fight, then joined his companions in savagely beating him. The
victim saw Ortega “slashing” at his torso. The victim survived,
but had to be treated at the hospital for three gashes on his
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
abdomen that were each approximately one foot long and deep
enough to expose his internal organs. Ortega pled guilty to
assault with a deadly weapon (§ 245, subd. (a)(1)) and mayhem
(§ 203), including a firearm allegation (§ 12022.5) and a gang
allegation (§ 186.22), and was sentenced to 14 years in prison.
In 2005, Ortega’s neighbors called the police to report that
he had been selling drugs and threatening people in the
neighborhood. He was convicted of possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and
sentenced to three years in prison.
II. Current Offense
While on probation, Ortega committed the offense
underlying this appeal.
“On July 23, 2006, Akshay Shah and his family were at a
park when they were approached by [Ortega], who was talking
loudly to himself. [Ortega] rifled through a bag owned by Shah’s
nephew and removed his glasses. Shah confronted [Ortega], who
displayed a 10-inch knife, concealed in his left hand, with the
blade pointing toward his inner elbow. Shah backed away and
told the rest of the family to stay away from [Ortega]. [Ortega]
walked about 10 feet away, returned, and put the glasses on the
ground next to the bag. Yelling, [Ortega] walked toward the
parking lot and kicked a garbage can and sprinklers. Shah called
the police. [Ortega] hit his own vehicle with some branches and
loitered about the other vehicles. Later, Shah’s brother’s vehicle
was found with a broken rear-windshield wiper blade and bent
antenna.
“Los Angeles County Deputy Sheriff Thomas Lines
approached [Ortega] and ordered him to stop and put his hands
up. [Ortega] ignored his commands, got inside his vehicle,
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started the engine, and tried to drive off. Another deputy tasered
[Ortega] and recovered two knives. When [Ortega] was searched
at the station, officers found a plastic bag containing
methamphetamine in the right front pocket of his pants.” (People
v. Ortega (July 2, 2008, B199516) [nonpub. opn.] at pp. 2–3.)
Ortega was charged with robbery (§ 211), vandalism (§ 594,
subd. (a)), resisting arrest (§ 148, subd. (a)(1)), and possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
These charges included a special allegation that Ortega
personally used a deadly and dangerous weapon (§ 12022, subd.
(b)(1)), and an allegation that he had previously committed a
serious or violent felony (§§ 1170.12, subds. (a)-(d), 667, subds.
(b)-(i)). When he was taken into custody for this offense, he also
admitted to membership in the Mexican Mafia, a gang commonly
referred to as “EME.”
A jury convicted Ortega for resisting arrest and possession
of methamphetamine, as well as the lesser offense of petty theft
(§ 484). Due to Ortega’s prior convictions, the trial court
sentenced him to an aggregate term of 25 years to life under
California’s “Three Strikes” law. We affirmed the convictions and
sentence in 2008. (People v. Ortega, supra, B199516.)
III. Petitions for Resentencing
In 2013, Ortega filed a petition to recall his sentence
pursuant to Proposition 36, also known as the Three Strikes
Reform Act of 2012 (§ 1170.126), arguing that his third strike
felony for possession of methamphetamine was not a serious or
violent felony warranting an indeterminate sentence. The People
opposed the petition.
Two years later, Ortega filed a petition for resentencing
pursuant to Proposition 47, the Safe Neighborhoods and Schools
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Act (§ 1170.18), arguing that his third strike felony conviction for
possession of methamphetamine should be reduced to a
misdemeanor and that he should be resentenced accordingly.
Again, the People opposed his petition.
On August 12, 2019, after requesting and receiving
multiple extensions of the filing deadline,2 Ortega submitted a
combined reply in support of his petitions. The People responded
by withdrawing their earlier oppositions per reform directives
issued by the district attorney’s office of Los Angeles County.
After an evidentiary hearing, the trial court denied both of
Ortega’s petitions. In a 17-page order, the trial court found that
resentencing him would “pose an unreasonable risk of danger to
public safety” under both sections 1170.126, subd. (f) and
1170.18, subd. (b).
The order includes a lengthy analysis of multiple factors
relevant to Ortega’s suitability for resentencing. The trial court
acknowledged that some of these factors weighed in favor of
resentencing, but ultimately found that “these factors are
outweighed by [Ortega’s] criminal history[,] . . . [his] continued
misconduct in prison[,] . . . [his] failure to participate in any
rehabilitative programming while incarcerated and his
unsupportive post-release plans.”
In particular, the trial court noted that Ortega’s prison
disciplinary record contained an investigation which “found [him]
2 Ortega received approximately 30 time extensions between
the filing of the People’s first opposition in December 2013 and
the filing of Ortega’s reply in August 2019. These extensions
were granted for a variety of reasons, including to facilitate
changes of counsel, to obtain trial transcripts and other
materials, and to give Ortega and his counsel time to consult
with and review opinions from experts.
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guilty of acting in a leadership role in [EME],” including by
giving other gang members an order to assault inmates
designated as targets of EME. Ortega had also been twice
disciplined for unlawful possession of a cell phone, which the trial
court noted would have been a “relatively benign” infraction were
it not for evidence showing that Ortega used hidden cell phones
to direct EME activities. This history raised concerns that
Ortega had not learned from his prior mistakes, was unwilling to
modify his behavior to comply with the law, and that he would
continue to engage in violent and destructive gang-related
activity.
Ortega timely appealed.
DISCUSSION
I. Applicable Law and Standard of Review
A. Section 1170.126
Section 1170.126 was enacted as part of Proposition 36,
which provides a procedure by which some prisoners already
serving third strike sentences may seek resentencing in
accordance with new sentencing rules. (People v. Johnson (2015)
61 Cal.4th 674, 682.) A defendant is only eligible for
resentencing if he is serving an indeterminate term of life
imprisonment, pursuant to the Three Strikes law, “for a
conviction of a felony or felonies that are not defined as serious
and/or violent felonies by subdivision (c) of section 667.5 or
subdivision (c) of section 1192.7.” (§ 1170.126, subd. (e)(1).)
An inmate is ineligible for resentencing under section
1170.126 if, as relevant here, the trial court determines that
resentencing a defendant would pose an unreasonable risk of
danger to public safety. (§ 1170.126, subds. (e) & (f).)
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B. Section 1170.18
Proposition 47 redesignates as misdemeanors “certain
drug- and theft-related offenses” that were charged or sentenced
as felonies. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108;
§ 1170.18.) Among other things, Proposition 47 permits persons
currently “serving a sentence for a conviction . . . of a felony or
felonies who would have been guilty of a misdemeanor . . . had
this act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment
of conviction in his or her case to request resentencing . . . .”
(§ 1170.18, subd. (a).)
As with section 1170.126, the trial court may deny a
petition for resentencing if it determines that a defendant “would
pose an unreasonable risk of danger to public safety.” (§ 1170.18,
subd. (b).) However, unlike section 1170.126, section 1170.18
specifically defines “unreasonable risk of danger to public safety”
as “an unreasonable risk that [a defendant] will commit a new
violent felony” enumerated in subdivision (e)(2)(C)(iv) of section
667. (§ 1170.18, subd. (c).) These felonies are the so-called
“super-strike” offenses, such as murder, sexual violence, and
crimes carrying a sentence of death or life imprisonment without
the possibility of parole. (§ 667, subd. (e)(2)(C)(iv).)
C. Standard of Review
“The determination whether a defendant poses an
unreasonable risk of danger to public safety is discretionary
(§ 1170.126, subd. (f) [see also § 1170.18, subd. (b)]), and . . . ‘[t]he
facts upon which the court’s finding of unreasonable risk is based
must be proven by the People by a preponderance of the evidence
. . . and are themselves subject to [appellate] review for
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substantial evidence.’” (People v. Frierson (2017) 4 Cal.5th 225,
239.)
It is the defendant’s burden on appeal “‘to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In
the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its
discretionary determination . . . will not be set aside on review.’”
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–
978 (Alvarez).) “‘[A] decision will not be reversed merely because
reasonable people might disagree. “An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.” [Citation.]’” (Id. at p. 978.)
In general, a ruling is not arbitrary and capricious if it “is
based upon an ‘individualized consideration of the offense, the
offender, and the public interest.’” (People v. Sandoval (2007)
41 Cal.4th 825, 847.)
II. Analysis
A. The trial court did not abuse its discretion
Ortega argues that the trial court abused its discretion in
finding that he currently posed a serious risk of danger to public
safety. He faults the court for failing to conduct an
individualized inquiry by examining all the circumstances of the
crime, including mitigating factors.
But that is just what the trial court did. It exhaustively
analyzed all circumstances relevant to Ortega’s suitability for
resentencing, including his criminal history, his prison
disciplinary record, his participation in rehabilitative services,
his age, his classification score, and whether he had created a
realistic plan for release if paroled.
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At several points in its analysis, the trial court
acknowledged the presence of mitigating factors, such as the
temporal remoteness of Ortega’s crimes, the lack of any violent
acts in his prison record, and his advanced age and low
classification score. However, the trial court also noted several
aggravating factors, commenting on the seriousness of Ortega’s
crimes, his leadership role in a prison gang, his apparent
willingness to flout the prison’s rules to facilitate gang activity,
and the infeasibility of his purported plan for release.
In weighing these factors, the trial court stated that it
“d[id] not undertake this balance lightly,” but ultimately
concluded that “the totality of the record, including consideration
of all statutory factors, demonstrates that resentencing” Ortega
would unreasonably endanger public safety.
This careful, evenhanded analysis does not constitute a
reversible abuse of discretion.
B. Ortega’s counterarguments
Ortega raises three basic arguments in an attempt to
convince us otherwise. These arguments are unpersuasive.
1. Trial court’s reliance on Ortega’s criminal history
Ortega challenges the trial court’s reliance on his criminal
history. He argues that the trial court could not have found a
nexus between his past crimes and his future risk of committing
super-strike offenses, as required to discretionarily deny
resentencing under section 1170.18, because his criminal history
shows that he had never committed a super-strike offense.
This argument does not hold water. A single prior
conviction for a super-strike offense automatically renders a
defendant ineligible for resentencing. (§ 1170.18, subd. (i).) If
Ortega’s convictions for lesser offenses could not provide the trial
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court with insight into whether he posed a current risk to public
safety, his criminal history would add little value to the
discretionary determination of his eligibility for resentencing.
Yet section 1170.18 explicitly prompts trial courts to consider a
defendant’s criminal history in detail when making this
determination. (§ 1170.18, subd. (b)(1).) We decline to accept any
arguments that would “‘render portions of the statute
meaningless [or] frustrate the evident purpose of the law.’”
(People v. Moore (2004) 118 Cal.App.4th 74, 81.)
Ortega also contends that the trial court placed undue
weight on his criminal history despite the immutability and
remoteness in time of those offenses. This ignores that the trial
court considered both the immutable nature of Ortega’s criminal
history and the remoteness of his offenses in its analysis of his
eligibility for resentencing. And, in any event, the remoteness of
Ortega’s crimes was significantly tempered by the fact he has
been all but consistently incarcerated since his first conviction as
an adult in 1984. (Cf. People v. Loy (2011) 52 Cal.4th 46, 62
[prior crimes were not remote for purposes of Evid. Code, § 352
where defendant had been in prison a significant portion of the
intervening time and thus had little opportunity to commit
additional crimes]; People v. Gaston (1999) 74 Cal.App.4th 310,
315 [“[i]n deciding a defendant’s ‘prospects’ for committing future
crimes, the sentence imposed by the trial court is itself a factor,
since the defendant presumably will have fewer opportunities to
commit crime while in prison”].)
2. Credibility of evidence regarding Ortega’s gang
activity in prison
Ortega argues that the trial court relied on evidence of
“dubious reliability” in evaluating his alleged gang activity while
10
in prison. He alleges that the investigation was based on
information obtained from confidential informants who may not
have been reliable sources.3
We note that Ortega did not object to the trial court’s
reliance on either the conclusions reached by the gang
investigations or the specific confidential information disclosure
forms summarizing information given, which forfeits any
contention regarding their use. (Evid. Code, § 353, subd. (a); see
People v. Holford (2012) 203 Cal.App.4th 155, 168–169.)
But even if Ortega had not forfeited this argument by
failing to object below, the limited information provided in the
record demonstrates that these documents are sufficiently
reliable for the purposes of resentencing.
We have held that, in the context of resentencing, a court
may rely on any “‘“relevant, reliable, admissible portions of the
record of conviction to determine the existence or nonexistence of
disqualifying factors.”’ [Citations.]” (People v. Thomas (2019)
39 Cal.App.5th 930, 935.) The reliability of information provided
by confidential informants is established by the presence of any
of the enumerated indicia of reliability codified in section 3321 of
title 15 of the California Code of Regulations. Each of the
confidential information disclosure forms filed in connection with
the investigation into Ortega’s gang activities includes a
reliability determination personally made by the investigating
3 The only case Ortega cites in support of this argument is
our Supreme Court’s opinion in People v. Zermeno (1999)
21 Cal.4th 927. That case discusses the sufficiency of evidence
proffered to prove a defendant’s involvement in gang activity, but
does not address any issues related to the reliability of that
evidence or the credibility of its sources. (Id. at pp. 930–931.) We
fail to see what relevance this case has to Ortega’s argument.
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officer attesting to the presence of one or more of these indicia.
As relevant here, the investigating officers confirmed that the
information provided by these informants was self-incriminating,
and thus inherently reliable (§ 3321, subd. (c)(3)), that multiple
confidential informants independently provided the same
information about Ortega’s activities (§ 3321, subd. (c)(2)), and
that part of the information provided by the informants had been
corroborated through investigation or information provided by
nonconfidential sources (§ 3321, subd. (c)(4)).
We cannot review the confidential memoranda summarized
by these confidential information disclosure forms, and thus
cannot confirm whether these reliability determinations are
supported by substantial evidence (see In re Jackson (1987)
43 Cal.3d 501, 516), as the confidential memoranda have not
been made part of the record on appeal. “Of course, ‘the
defendant . . . bears the burden to provide a record on appeal
which affirmatively shows that there was error below, and any
uncertainty in the record must be resolved against the
defendant.’ [Citation.]” (People v. Moore (2021) 68 Cal.App.5th
856, 866.)
Therefore, we conclude that the evidence of Ortega’s prison
gang activity was sufficiently reliable for the trial court to rely on
it in denying his petitions for resentencing.
3. Other mitigating factors
Lastly, Ortega notes several additional factors that could
have reasonably led the trial court to a different conclusion: the
role of Ortega’s youth in his early criminal endeavors, his
attempts to engage in rehabilitative services and come up with
some components of a supportive living environment in the event
of his release. But as stated above, we cannot reverse the trial
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court’s decision just because “‘reasonable people might disagree’”
about the relative strength of these factors. (Alvarez, supra,
14 Cal.4th at p. 978.)
DISPOSITION
The order denying Ortega’s petitions for resentencing is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
LUI
____________________________, J.
CHAVEZ
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