People v. Ortega CA1/5

Filed 2/28/25 P. v. Ortega CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A164581

v. (Contra Costa County Super. Ct. No. 05001706514) DANIEL ORTEGA, Defendant and Appellant.

Defendant Daniel Ortega appeals a final judgment following his joint trial for murder, assault, and robbery with codefendants Daniel Porter-Kelly and Ray Simons. Ortega and Porter-Kelly were convicted of assault and second degree murder under an aiding and abetting implied murder theory. Simons was convicted of first degree murder, robbery, assault, and possession of a firearm by a felon. The jury also found true the special allegation that Simons personally and intentionally discharged a firearm, causing great bodily injury and death. On appeal, Ortega argues that his second degree murder conviction should be reversed for insufficient evidence.1 After he filed his opening brief, we issued our opinion in People v. Porter-Kelly (Dec. 4, 2024, A165660)

1 Ortega does not challenge his assault conviction.

1

[nonpub. opn.], which reversed Porter-Kelly’s second degree murder conviction based on our high court’s holding in People v. Reyes (2023) 14 Cal.5th 981 (Reyes). The People concede that in light of our opinion and Reyes, reversal of Ortega’s second degree murder conviction is warranted because his “participation and involvement in the beating and shooting [of the victim] is virtually the same as Porter-Kelly’s.” We agree and accordingly reverse.* I. BACKGROUND A. Procedural History In April 2017, a grand jury indicted Ortega, Porter-Kelly, and Simons for murder (Pen. Code,2 § 187, subd. (a)), second degree robbery (§ 211), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The indictment also charged Simons with one count of unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1)), and alleged against Simons a robbery-murder special circumstance (§ 190.2, subd. (a)(17)) as well as an enhancement for personal use of a firearm causing great bodily injury and death (§ 12022.53, subds. (b), (e)). Following trial, the jury found Simons guilty of all counts and found true the robbery-murder special circumstance as well as the personal use of a firearm enhancement. The jury found Ortega and Porter-Kelly guilty of second degree murder and assault with force likely to inflict great bodily injury but acquitted them of robbery and the lesser included offense of petty theft. Following the verdict, the trial court heard and denied Ortega’s motion for a new trial. The court sentenced Ortega to 15 years to life in prison for