People v. Cortez CA2/6

Filed 9/20/16 P. v. Cortez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B267299 (Super. Ct. No. 2014039136) Plaintiff and Respondent, (Ventura County)

v.

STEVEN CORTEZ,

Defendant and Appellant.

A jury convicted Steven Cortez of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664),1 one count of street terrorism (§ 186.22, subd. (a)), and two counts of assault with a firearm (§ 245, subd. (a)(2)), and found true gang and firearm allegations (§§ 186.22, subd. (b)(1), 12022.5, subd. (a), 12022.53, subd. (c)). The trial court sentenced him to prison for an aggregate determinate term of 39 years; it also imposed victim restitution (§ 1202.4), in the sum of $4,000 payable to the Fillmore Fire Department. Cortez contends that the trial court erred by admitting cumulative evidence of his juvenile robbery adjudication to prove that his gang engaged in a pattern of criminal activity and by imposing restitution to the Fillmore Fire

1 All further statutory references are to the Penal Code unless otherwise stated.

Department. We strike the restitution award to the Fillmore Fire Department and otherwise affirm. FACTS Cortez, Ricardo Magaña, and Christian Castaneda were members of the 12th Street Locos, a violent Santa Paula Street gang. One evening, Cortez and Magaña “were hanging out in [a] friend’s backyard” around a bonfire. Castaneda came over. He said “he had a stolen car” and asked Magaña if he “wanted to go ride around with him.” Since Magaña “was [Cortez’s] ride home” and the gang has a rule—“don’t leave a homey on the hang”—Magaña “asked Cortez if he wanted to roll with [them].” Cortez said, “Yeah.” They drove to Steckel Park where Magaña tagged a utility box with their gang monikers and “X3LS”—an abbreviation for 12th Street Locos. Next they drove to Cortez’s house, where Cortez changed into jeans and a hooded sweater and picked up his .38 revolver. Cortez once told Magaña that he liked that type of gun because “it doesn’t leave shell casings,” which “makes it more difficult for a crime to be solved.” Cortez said, “Let’s go to Fillmore.” He said that members of Little Boys, a rival gang, “hang out” in front of a liquor store there. Cortez thought that the three of them “might catch [the Little Boys] slipping,” meaning that they “could find [the Little Boys] off guard, maybe get in a fight with them,” or shoot and kill one of them. They drove to Fillmore and stopped near the Green Valley Market. Magaña tagged the market with graffiti indicating “Santa Paula 12th Street Locos 13,” which was a form of disrespect to the Little Boys by letting them know the 12th Street Locos were present there. Afterwards, Cortez, Magaña, and Castaneda drove around Fillmore looking for Little Boys. After a few minutes they headed back to the market to see if anyone was there or if their graffiti had been crossed out. Victor Vargas (Victor) and his brother Guillermo Vargas (Guillermo) were walking past the market on their way to