People v. Orozco CA2/8

Filed 2/25/22 P. v. Orozco CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B306916

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA090280) v.

LUIS OROZCO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. James D. Otto, Judge. Reversed and remanded with directions. Law Office of Stein and Markus, Andrew Stein, Joseph Markus; and Brentford Ferreira for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2015, defendant and appellant Luis Orozco, along with two codefendants, was convicted by a jury of the special circumstance murder and robbery of Franklin Robles. Defendant was sentenced to life without the possibility of parole. A panel of this court affirmed defendant’s conviction in an unpublished decision. (People v. Orozco (Dec. 14, 2018, B276130) [nonpub. opn.].) After the passage of Senate Bill 1437 (2017–2018 Reg. Sess.) in 2018, defendant filed a petition for resentencing in propria persona pursuant to Penal Code section 1170.95. Section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) Defendant stated he was not the actual killer, did not act with intent to kill, was not a major participant and could not be convicted of murder in light of the changes to murder liability effected by Senate Bill 1437. Defendant also requested the appointment of counsel. The court appointed defendant counsel and asked the People to file a response. The People filed opposition and defendant, through counsel, filed a reply. On July 15, 2020, the court entertained argument from counsel. Defendant waived his right to appear because of the ongoing COVID-19 pandemic. The parties did not present new evidence. During the hearing, the court and the parties agreed to treat the hearing as an evidentiary hearing under Penal Code section 1170.95, subdivision (d). The court denied defendant’s petition, reasoning that “the jury was well within its province to find that the defendant, Mr. Orozco, the petitioner in this case, was a major participant who acted with reckless indifference to human life.”