People v. Cortez CA4/1

Filed 5/21/21 P. v. Cortez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077895

Plaintiff and Respondent,

v. (Super. Ct. No. SCS189535)

ADRIAN NATHANIEL CORTEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Gary G. Haehnle, Judge. Reversed and remanded with directions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

In July 2006, a jury convicted Adrian Nathaniel Cortez of first-degree

murder (Pen. Code,1 § 187, subd. (a)) and conspiracy to commit a crime (§ 182, subd. (a)(1)) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Cortez admitted a prior strike conviction (§ 667, subds. (b)-(i)). Cortez was sentenced to an indeterminate term of 76 years to life in prison. In 2008, this court affirmed the convictions and remanded for resentencing. (People v. Cortez et al. (Oct. 2, 2008, D049716, D050592) [nonpub. opn.].) In 2017, Cortez filed a petition for habeas corpus claiming instructional error under People v. Chiu (2014) 59 Cal.4th 155 (Chiu). This court granted the petition, set aside the first-degree murder conviction and remanded the case with direction that Cortez could be retried for first degree murder on a theory other than natural and probable consequences. (In re Cortez (July 14, 2017, D071551) [nonpub. opn.].) On remand, the prosecution accepted reduction of the conviction to second-degree murder instead of retrying the case. In 2019, Cortez filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, and considered the record of conviction. Ultimately, the court denied the petition by written order. The court found the evidence recited in this court’s original opinion demonstrated Cortez was a direct aider and abettor and therefore was not eligible for relief under section 1170.95. Cortez filed a timely notice of appeal. Cortez contends, and the Attorney General agrees, that the trial court engaged in impermissible factfinding at the initial prima facie phase of the petitioning process. Both parties contend we should reverse the trial court’s