People v. Cortez CA2/5

Filed 11/17/22 P. v. Cortez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B315406

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA104924) v.

JUAN ALEJANDRO CORTEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Thomas C. Falls, Judge. Reversed. Richard B. Lennon and Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Daniel C. Chang and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant Juan Cortez appeals from the trial court’s denial of his petition to vacate his murder conviction pursuant to former section Penal Code section 1170.951 (now § 1172.6)2. Although the court found that defendant was eligible for relief under section 1172.6, rather than vacate defendant’s murder conviction, it redesignated his first degree murder conviction as one for second degree murder and resentenced him accordingly. We reverse and remand for resentencing.

II. BACKGROUND

A jury convicted defendant and codefendant Michael Castiblanco3 of first degree murder (§ 187, subd. (a); count 1) and second degree robbery (§ 211; count 2). At trial, the Los Angeles County District Attorney (District Attorney) argued to the jury that defendant was guilty as an aider and abettor or co- conspirator either under the felony murder rule or the natural and probable consequences doctrine. The jury found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and the allegation that a principal was