California Court of Appeal Jan 5, 2026 No. E084911Unpublished
Filed 1/5/26 P. v. Cortez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084911
v. (Super.Ct.No. SWF1400934)
SIMON LAST CORTEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam,
Judge. Affirmed.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Seth M.
Friedman and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and
Respondent.
1
INTRODUCTION
Defendant and appellant Simon Last Cortez appeals the trial court’s denial of his
postjudgment petition for resentencing under Penal Code1 section 1172.6 at the prima
However, “[i]f the petition and record in the case establish conclusively that the
defendant is ineligible for relief, the trial court may dismiss the petition.” (People v.
Strong (2022) 13 Cal.5th 698, 708; Lewis, supra, 11 Cal.5th at pp. 970-972.) The record
of conviction includes the charging document, verdict forms, closing arguments, jury
instructions, and “a preliminary hearing transcript preceding a guilty plea.” (Patton,
supra, 17 Cal.5th at p. 568; People v. Jenkins (2021) 70 Cal.App.5th 924, 935.)
“A petitioner is ineligible for resentencing as a matter of law if the record of
conviction conclusively establishes, with no factfinding, weighing of evidence, or
credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner
was not the actual killer, but, with the intent to kill, aided, abetted, counseled,
5
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree, (3) the petitioner was a major participant in the underlying
felony and acted with reckless indifference to human life, or (4) the petitioner acted with
malice aforethought that was not imputed based solely on participation in a crime.”
(Lopez, supra, 78 Cal.App.5th at p. 14.)
B. Remand Is Not Warranted
At the time of the hearing on defendant’s section 1172.6 petition, the “Courts of
Appeal [were] split on the import of the preliminary hearing transcript in determining
whether a petitioner has made a prima facie case. . . ” (People v. Flores (2022)
76 Cal.App.5th 974, 989, disapproved on another ground in Patton, supra, 17 Cal.5th at
p. 569, fn. 12.) The California Supreme Court resolved that split of authority in Patton,
supra, 17 Cal.5th 549. There, the defendant, who had pled no contest to attempted
murder and had admitted to intentionally discharging a firearm, filed a preprinted form
petition where he checked boxes next to statements indicating he was entitled to relief
under section 1172.6. (Id. at p. 559.) Relying on the preliminary hearing transcript, the
prosecutor contended that the defendant was the lone shooter and was therefore ineligible
for relief. (Id. at pp. 559-560.)
The trial court held a prima facie hearing and denied the petition. (Patton, supra,
17 Cal.5th at p. 560.) The defendant appealed, and the Court of Appeal affirmed, stating
that the trial court properly considered the record of conviction, including the preliminary
hearing transcript. (Ibid.)
6
The California Supreme Court affirmed, holding that “a petitioner who offers only
conclusory allegations of entitlement to relief under section 1172.6, in response to a
record of conviction that demonstrates the petitioner’s conviction was under a still-valid
theory, has not, thereby, made a prima facie showing.” (Patton, supra, 17 Cal.5th at p.
557.)
Defendant here cites Patton and argues that, like the defendant in that case, he
should “be given a chance to file an amended petition if he desires, responding to the
preliminary transcript offered by the prosecution.” In Patton, the Supreme Court did
remand the matter for that purpose “out of an abundance of caution.” (Patton, supra, 17
Cal.5th at p. 569.) However, the court did so “[i]n light of Patton’s request at oral
argument . . . to be permitted to plead additional facts on remand should we affirm.”
(Ibid.)
Patton is clearly distinguishable. In Patton, defense counsel objected to the use of
the preliminary hearing transcript at the time of the prima facie hearing. (Patton, supra,
17 Cal. 5th at. p. 654.) Here, defense counsel did not object to the use of facts from the
preliminary hearing used to refute his conclusory allegations. To the contrary, after the
prosecutor cited the preliminary hearing transcript, which demonstrated that defendant
admitted he stabbed his stepfather to death, defense counsel stated: “I have confirmed
everything counsel just indicated. I would indicate that the Defense will not be
presenting any additional evidence that might have contradicted that.” In other words,
defense counsel indicated he had no evidence to contradict the preliminary hearing
transcript. Nor did defense counsel suggest in any way that such evidence existed. On
7
appeal, defendant still has not suggested he has any additional evidence that would
dispute the facts presented at the preliminary hearing. In such circumstances, no remand
is warranted.
DISPOSITION
The court’s denial order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J. McKINSTER J.
8
AI Brief
AI-generated · verify before citing
Holding. The trial court properly denied the defendant's petition for resentencing under Penal Code section 1172.6 because the record of conviction, including the preliminary hearing transcript, conclusively established that the defendant was the actual killer. Remand for an amended petition is unnecessary because defense counsel conceded the accuracy of the record and stated no contradictory evidence existed.
Issues
Whether the trial court erred in denying a section 1172.6 petition at the prima facie stage based on a preliminary hearing transcript.
Whether a remand is required for the defendant to file an amended petition following the Supreme Court's decision in People v. Patton.