People v. Ortega CA4/3

Filed 1/11/22 P. v. Ortega CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G060069

v. (Super. Ct. No. 16NF1172)

DAVID STEVEN ORTEGA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Vincent P. LaPietra and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant David Steven Ortega contends the trial court erroneously denied his petition to vacate his murder conviction and be resentenced under Penal Code section 1170.95. 1 However, because the jury found appellant either personally killed the victim with malice, or he directly aided and abetted the killing with such intent, he is ineligible for resentencing relief as a matter of law. We therefore affirm the trial court’s denial order. FACTUAL AND PROCEDURAL BACKGROUND On July 19, 2015, David Douglas and John Anderson confronted appellant and his fellow gang member Edgar Ramirez for spray painting gang graffiti in their neighborhood. Nothing came of this initial encounter, but after the two groups parted ways, Ramirez and appellant recruited several other members of their gang to get back at Douglas and Anderson for daring to confront them. The retaliation was swift and deadly. Although Ramirez did not partake in it, appellant and the new recruits ambushed Douglas and Anderson while they were sitting in an SUV. During the attack, appellant and at least one of his cohorts fired into the vehicle, killing Douglas and seriously wounding Anderson. Appellant and Ramirez were jointly tried. In closing argument, the prosecutor contended appellant was guilty of first degree premeditated murder and attempted premeditated murder because he either personally shot the victims with the premeditated intent to kill, or he directly aided and abetted the shooting with such intent. As for Ramirez, the prosecutor argued he was guilty of second degree murder for recruiting his fellow gang members to carry out the attack, and he was guilty of attempted murder because that offense was a natural and probable consequence of the targeted crime of assault with a deadly weapon.