People v. Ordonaz CA3

Filed 1/31/22 P. v. Ordonaz CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C092859

v. (Super. Ct. No. 66841)

ROBERTO ORDONAZ,

Defendant and Appellant.

Defendant Roberto Ordonaz appeals from the denial of his petition to recall his sentence pursuant to Penal Code section 1170.95. 1 He contends the trial court applied the wrong legal standard when ruling on his petition. The People agree that remand is

1 Undesignated statutory references are to the Penal Code.

1

appropriate, and we do too. We will vacate the order denying the petition and remand for a hearing on defendant’s petition. BACKGROUND In 1984, defendant pleaded guilty to first degree murder and robbery and was sentenced to an indeterminate 25-year-to-life term, along with a concurrent three-year determinate term. During the plea, the prosecutor provided a factual basis incorporating testimony from the codefendant’s trial, as well as defendant’s admissions to police (acknowledging those statements were arguably in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]). The prosecutor stated: “Defendant not only admitted to the police, but to his family members, that he participated in the offense, contended that his crime partner was the gunman and inflicted the fatal shot to the victim, contended to the police that even though he assisted the co-defendant, he did not formulate the intent and the desire that the victim be killed.” The prosecutor added: “Part of the reason . . . for the plea bargain includes the fact of the substantial evidentiary problems regarding the admissibility in evidence against this Defendant, his confession to the police, and the fact that statements from his family members flowed from that confession to the police.” Thirty-five years later, defendant petitioned for resentencing under section 1170.95. His petition asserted that he could not now be convicted of his murder charge due to changes in section 189. He further declared, among other things, that he was not the actual killer, he did not aid the killer with intent to kill, and he was not a major participant and did not act with reckless indifference to human life. The trial court appointed counsel to represent defendant. The People moved to dismiss the petition arguing, among other things, that defendant was an aider and abettor to murder and acted with intent to kill, and was therefore ineligible for relief. Defendant countered that he had declared himself eligible for resentencing, and the People’s conclusion was based on a probation report that relied