People v. Ortiz CA2/5

Filed 12/16/22 P. v. Ortiz CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B311516

Plaintiff and Respondent, (Los Angeles County Super. Ct. v. No. BA108995)

JOSE ORTIZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Reversed and remanded with directions. Barbara A. Smith, 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, Idan Ivri, Acting Supervising Deputy Attorney General, and Nikhil Cooper, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Jose Ortiz (defendant) appeals from an order summarily denying his petition for resentencing pursuant to Penal Code section 1172.6 (former section 1170.95). 1 The Attorney General concedes a remand for further proceedings in the trial court is required because the court should have appointed counsel for defendant before ruling on his petition. We will reverse and remand for that reason. Defendant was convicted of five counts of first degree murder in 1997.2 The evidence at trial established he was a lookout while several other men entered a home and killed former gang member Anthony Moreno (Moreno) and four other individuals, including two children. The jury was instructed on alternative theories of liability, some of which implicated the natural and probable consequences doctrine. The trial court summarized these theories in a special instruction: “There are several theories of liability for murder in this case: [¶] 1) The defendant was an aider and abet[t]or in each murder; [¶] 2) The defendant was an aider and abet[t]or in the murder of [Moreno] and the other murders were a natural and probable consequence of said murder and were committed by a principal in said murder; [¶] 3) The defendant was a co- conspirator to the crime of murder in each count; [and] [¶] 4) The defendant was a co-conspirator to the crime of robbery or murder, and all the murders were committed by a co-conspirator in