People v. Ortiz CA6

Filed 1/4/22 P. v. Ortiz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046647 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1768074)

v.

GIOVANNY ORTIZ,

Defendant and Appellant.

Defendant Giovanny Ortiz was granted probation following his plea of guilty to accessory after the fact to the fatal shooting of Alexis Cardenas. (Pen. Code, § 32.) As a condition of probation, the trial court ordered Ortiz, jointly and severally with his codefendant, Eric Carter, to pay restitution for the cost of Cardenas’s funeral. We conclude that the trial court did not abuse its discretion in finding that restitution serves a rehabilitative purpose. We therefore affirm the order. I. FACTUAL AND PROCEDURAL BACKGROUND1 Jaerome Calamba arranged to meet with Carter for the ostensible purpose of buying a gun Ortiz had recently purchased. Calamba and Carter agreed to a price, and as confirmation of his ability to pay, Calamba texted Carter a photo of $4,000 cash.

1 Because Ortiz pleaded guilty prior to trial, we derive the facts from the preliminary hearing transcript.

Unbeknownst to Carter and Ortiz, however, Calamba planned to rob Carter of the gun, with Alexis Cardenas as his get-away driver. By agreement, the night of July 5, 2017, Cardenas drove Calamba to a street corner where Calamba had previously purchased drugs from Carter. Carter was standing near his car, where Ortiz was waiting in the driver’s seat. When Calamba got in the car, Ortiz retrieved an unloaded .40 caliber Sig Sauer pistol from under his seat and handed the gun to Calamba for inspection. Upon confirming that the gun was not fake, Calamba asked Ortiz for the magazine, but Ortiz replied by asking for the money. Calamba pepper-sprayed Ortiz and then—on seeing Carter reach for the front of his waistband as though for a gun—Carter as well. Chased by Ortiz, Calamba ran to where Cardenas was waiting with his car. Carter fired multiple shots even though Ortiz was close behind Calamba. Calamba got into the car and told Cardenas to drive off. Ortiz hung onto the passenger door as Cardenas drove away. Carter continued firing and shot Cardenas through the back of his head as the car rounded a corner. Ortiz let go of the car on seeing Cardenas had been shot. Cardenas crashed into a truck. Carter and Ortiz fled, leaving the county for Modesto, California, where Ortiz’s cousin lives. Two days after the shooting, Carter and Ortiz were arrested at a motel in Modesto. Found in their motel room was a bus ticket from Modesto to Amarillo, Texas, under a different name. Although Ortiz was initially charged, like Carter, with Cardenas’s murder, the trial court granted his motion to dismiss that charge under Penal Code section 995. On April 25, 2018, Ortiz entered a guilty plea to Count 3 of the second amended information, accessory to a felony, in violation of Penal Code section 32. On October 22, 2018, the