People v. Ortiz CA6

Filed 3/10/22 P. v. Ortiz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H048364 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2004948)

v.

NICHOLAS JON ORTIZ et al.,

Defendants and Appellants.

Appellants Nicholas Jon Ortiz and Andrew Daniel Muir appeal from judgments entered after convictions by plea. Appointed counsel for Muir has filed a brief asking this court to review the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Muir was advised of the right to file a supplemental brief but has not responded. Finding no arguable error that would result in a disposition more favorable to Muir, we affirm the judgment. Ortiz raises two claims of error. For the reasons explained below, we modify Ortiz’s term of probation to two years and order one condition of probation stricken as duplicative. Otherwise, we affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND On March 23, 2020, at approximately 1:30 a.m., there was a disturbance at Rengstorff Park in Mountain View.1 Three men were drinking at the park when Ortiz, Muir, and another person approached them and asked if they were Sureños. Ortiz and Muir used metal clamps and beer bottles to assault the men. Ortiz, Muir, and the other person with them got into a car and drove towards two of the three victims, who were able to get out of the car’s path. Two of the victims received cuts to their heads; one was transported to the hospital due to the severity of his injuries. One of the victims identified Muir and Ortiz as two of the people who had attacked them. Varrio Mountain View is a subset of the Norteño criminal street gang. Varrio Mountain View and Mountain View Sureños are rival gangs. Muir is an active member of the Varrio Mountain View criminal street gang. Ortiz is also a member of Varrio Mountain View. At the preliminary hearing, a witness qualified as an expert in the Varrio Mountain View criminal street gang opined in response to a hypothetical question based on the facts of the offense that the crime would promote, further, or assist in criminal conduct by gang members because it would be done to intimidate members of a rival gang and signal a possible takeover of new territory for the gang. Muir and Ortiz were charged by information with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)2; count 1) with an allegation that each had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)), assault with a deadly weapon (§ 245, subd. (a)(1); count 2) with an allegation that each had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)), assault with a deadly weapon (§ 245, subd. (a)(1); count 3) with allegations that each had personally inflicted great bodily injury (§§ 12022.7, subd. (a) & 1203, subd. (e)(3)) and had committed the offense for the benefit of a