People v. Ortega CA3

Filed 5/16/23 P. v. Ortega CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C092671

Plaintiff and Respondent, (Super. Ct. No. 08F07509)

v.

VICTOR ANTHONY ORTEGA,

Defendant and Appellant.

Defendant Victor Anthony Ortega appeals from an order denying his petition to vacate his murder conviction under former Penal Code section 1170.95 (now section 1172.6).1 Appointed counsel for defendant asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal, and

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we will refer to the statute as section 1172.6 throughout this opinion.

1

defendant has filed a supplemental brief raising various issues. (People v. Wende (1979) 25 Cal.3d 436 (Wende); People v. Delgadillo (2022) 14 Cal.5th 216.) We have considered defendant’s arguments and will affirm the trial court’s order. I. BACKGROUND A jury previously found defendant guilty of first degree murder (§ 187, subd. (a)) and found true allegations that defendant personally and intentionally discharged a firearm causing death or injury (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)(1)). (People v. Ortega (Apr. 10, 2012, C065027) [nonpub. opn.].) On September 6, 2019, defendant filed a petition for resentencing pursuant to section 1172.6. The trial court appointed counsel and on September 1, 2020, denied the petition finding the jury “was not instructed on either felony-murder or the natural and probable consequences doctrine. No accomplice liability or conspiracy instructions of any kind were given, and the jury was instructed only with CALCRIM Nos. 520 and 521 on malice aforethought murder and not on any other theory of murder. Defendant . . . was convicted of first degree murder, which under the instructions required a finding of premeditated, deliberate, express malice murder, and the jury found true . . . personal gun use enhancements.” Thus, defendant was not entitled to resentencing as a matter of law. Defendant filed a timely notice of appeal. On February 26, 2021, this court dismissed the appeal as abandoned. On April 5, 2021, defendant filed a petition for review in the California Supreme Court. The petition was granted, and on March 29, 2023, the California Supreme Court transferred the matter back to us with directions to vacate our prior decision and reconsider in light of People v. Delgadillo, supra, 14 Cal.5th at pp. 232-233 & footnote 6. On April 7, 2023, this court filed an order vacating the February 26, 2021 order dismissing the appeal as abandoned. Both defense counsel and defendant filed supplemental briefs.