People v. Cortez CA2/6

Filed 10/28/22 P. v. Cortez CA2/6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B301016 (Super. Ct. No. 2004045000) Plaintiff and Respondent, (Ventura County)

v. OPINION ON REMAND JOE EZEQUIEL CORTEZ,

Defendant and Appellant.

Joe Ezequiel Cortez was convicted, by jury, of the first degree murder of Karl Wenrich. (Pen. Code, § 187, subdivision (a).)1 The jury found true the special circumstance allegations that the murder was committed during a burglary, during a robbery and for the benefit of a criminal street gang. It also convicted appellant of first degree burglary, attempted residential robbery, possession of a firearm by a felon, possession

All statutory references are to the Penal Code unless 1

otherwise stated.

of ammunition by a felon, and possession for sale of a controlled substance. The trial court sentenced appellant to state prison for life without the possibility of parole plus 33 years. We affirmed the convictions in an unpublished opinion. (People v. Cortez (Jan. 16, 2008, B190878).) Cortez filed a petition for resentencing under section 1172.6 (former § 1170.95).2 The trial court summarily denied it on the ground that appellant was not eligible for relief as a matter of law because the jury’s special circumstance findings established that he was a major participant in the underlying felonies and that he acted with reckless disregard for human life. We affirmed the order. The California Supreme Court vacated our original opinion and instructed us to reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952. Having done so, we now conclude appellant has alleged a prima facie case for relief. Thus, he is entitled to an evidentiary hearing under section 1172.6, subdivision (d). We therefore reverse. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) Factual Summary In 2003, appellant went to a drug dealer’s (Wenrich) house to buy heroin. Over Wenrich’s objection, appellant let fellow gang members Ernesto Madrid and Ernesto Hall into the house. They confronted Wenrich and bound him with duct tape. They ransacked the house for drugs and money. Wenrich was shot twice in the head, once in the chest, and once in the hip. Wenrich was able to call 911. He told the police that appellant shot him.