People v. Ortega CA5

Filed 11/23/22 P. v. Ortega CA5 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080017 Plaintiff and Respondent, (Super. Ct. No. CF02902077) v.

DANIEL JUSTIN ORTEGA, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Alan M. Simpson, Judge.

Deanna Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Peña, J. and Snauffer, J.

INTRODUCTION In 2004, a jury convicted defendant Daniel Justin Ortega of first degree murder and found true felony-murder special-circumstance allegations pursuant to Penal Code section 190.2 that the murders were committed during the commission or attempted commission of robbery, kidnapping, and carjacking. (Undesignated statutory references are to the Penal Code.) Following the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing, asserting he was entitled to resentencing under the new laws. The court denied defendant’s petition, finding he was ineligible for relief. We previously affirmed the court’s order in an unpublished opinion, concluding the record established defendant was ineligible for resentencing as a matter of law based on the true findings on the special circumstance allegations. Defendant petitioned for review. The California Supreme Court granted and held the petition and deferred action pending its consideration and disposition in People v. Strong (2022) 13 Cal.5th 698 (Strong). It then transferred the case back to us with directions for our court to vacate our decision and reconsider the cause in light of Strong. We now reverse the court’s order and remand the matter for the court to appoint defendant counsel, issue an order to show cause, and hold further proceedings as provided for in section 1172.6. FACTUAL AND PROCEDURAL HISTORY Defendant and two codefendants (Stacey Dyer and Jesus Lopez) were charged with first degree murder (§ 187; count 1) and three special circumstance allegations that they committed the murders during the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)), kidnapping (id., subd. (a)(17)(B)), and carjacking (id., subd. (a)(17)(L)). It was also alleged that each defendant was armed with a firearm during the commission of the murder (§ 12022, subd. (a)(1)). Each defendant was also separately charged with second degree robbery (§ 211; count 2) and kidnapping (§ 207, subd. (a);