People v. Cortez CA6

Opinion

Filed 8/25/26 P. v. Cortez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H053740 (Monterey County Plaintiff and Respondent, Super. Ct. No. 23CR005387)

v.

ROBERTO CARLOS CORTEZ,

Defendant and Appellant.

Defendant Roberto Carlos Cortez appeals from a judgment entered after conviction for first degree murder by jury trial. Cortez, an inmate at Salinas Valley State Prison, and fellow prison inmate Juan Jose Bueno, stabbed and killed a third prison inmate, Steven Lovely. Appointed counsel for Cortez filed a brief asking this court to review the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Cortez was advised of the right to file a supplemental brief but has not responded. Finding no arguable error that would result in a disposition more favorable to Cortez, we affirm the judgment, although we order the trial court to correct the abstract of judgment to correctly state Cortez’s first degree murder conviction. I. FACTS AND PROCEDURAL BACKGROUND A. Facts At Cortez’s trial, the evidence established the following facts: Ricardo Corona was a correctional officer at Salinas Valley State Prison. He was working on March 21, 2023, about 6:58 p.m., in an area of the prison where inmates do indoor recreational activities. Corona was able to observe the area from a control booth. Inmates at the prison are not allowed to possess weapons, even for self-defense. Despite this rule, some inmates do possess weapons. Cortez was not searched on the day of the incident. Corona witnessed Lovely being stabbed. Corona heard “rapid sneaker movement,” turned around, and saw Bueno and Cortez striking Lovely in an “up-and-down motion.” Corona retrieved his “launcher”1 and a “mini 14 rifle” and called for assistance. Corona yelled at Bueno and Cortez to “get down,” but they did not comply. He fired his launcher and shot a “direct sponge round” at Bueno. Although the round initially appeared to be effective, Bueno once again returned to Lovely and kept hitting him. Corona again yelled at Bueno and Cortez to “get down,” and they complied. From his location, Corona could not see whether Bueno or Cortez had a weapon, but Corona did see blood on Lovely. During his testimony, Corona authenticated a copy of video surveillance footage of the incident, and the video was played for the jury. After Bueno and Cortez had gotten down on the ground, Corona opened a door to let other staff in. Other officers began tending to Lovely, and they 1 Corona testified that a “launcher” is “a less-lethal use-of-force option [that] basically shoots out . . . wood baton rounds at a high speed” and is designed to “stop the threat without causing great bodily injury.” 2 secured Bueno and Cortez. Medical staff arrived to treat Lovely less than five minutes after the incident ended. Julian Narvaez was a correctional officer at Salinas Valley State Prison. On the date of the incident, he was assigned to the investigative services unit. He heard an alarm in the prison going off about 6:58 p.m. on March 21, 2023. His role in the investigation was to take photographs and gather evidence. He took photographs of weapons found on the floor immediately after the attack on Lovely. One weapon was a piece of folded metal, sharpened to a point. The second weapon was a metal rod sharpened to a point. Both weapons had blood on them. Narvaez described a photograph that he took of Lovely lying in a pool of blood, with blood all over the floor. Cortez also had blood on his face, shorts, socks, and shoes. Bueno also had blood on him. Abraham Franco was a correctional officer who was involved in the investigation of the incident. He collected the weapons used in the incident and took photographs of them, which were shown to the jury. Ibrahim Barrios was a correctional officer at Salinas Valley State Prison. He testified that, after the incident, Lovely was transported to Natividad Medical Center. Lovely died at the hospital, and the coroner assumed custody of Lovely’s body. Venus Azar was a doctor and a forensic pathologist with the Monterey County Coroner’s Office. Dr. Azar conducted a postmortem examination of Lovely on March 31, 2023. Lovely had a stab wound to his right internal carotid artery, which caused a blood clot, which caused a stroke in his brain. The hospital operated three times on Lovely. After the last surgery, Lovely “continued to decline” and became brain dead on March 26, 2023. Azar’s opinion was that Lovely died because of strokes and swelling of the brain, due 3 to an injury to his carotid artery caused by a stab wound of the neck. Her opinion was that the manner of Lovely’s death was homicide. Cortez testified in his own defense. He had been in prison since he was 16 years old and, at the time of the incident, was an inmate at Salinas Valley State Prison. Prisoners made rules among themselves to “set boundaries.” Prisoners, including Cortez, organized themselves into groups and had to follow the group’s rules and orders. Lovely and Bueno were in Cortez’s group. Lovely was getting disciplined because “he had messed up somewhere else.” Cortez was told by someone else to discipline Lovely “a matter of seconds” before the incident. Cortez would not identify the person who gave him the order to attack Lovely, because, if he did, Cortez would be killed. It was common for prisoners to carry knives. Cortez knew it was dangerous to stab someone because “you’re putting a hole in somebody’s body.” Cortez made the weapon he used in the attack on Lovely from a “hot pot,” and Cortez had had it “for a while.” Cortez stabbed Lovely in the neck. Cortez did not intend to kill him. Cortez was hoping to put “1, 2, 3 little holes [in Lovely], hopefully [Lovely] doesn’t fight that much and hopefully they stop it on time.” Cortez’s “intentions were never for [Lovely] to be as hurt as he got.” Cortez had “nothing against [Lovely]. [His] intentions were never for [Lovely] to end up like that.” Cortez testified “it got out of hand. It wasn’t supposed to be that bad.” The stabbing “was a checking. [Cortez] was supposed to stab [Lovely] a few times, hopefully it ends fast, and that was it.” After he stabbed Lovely, Cortez did not alert the guards. Lovely fought back, and Cortez did not stop the attack until Lovely stopped. Once Cortez saw Lovely was injured, Cortez told Lovely to “stay strong.”

4 Cortez knew that, after getting the order to attack Lovely, Cortez could have requested to go into protective custody. However, moving into protective custody “comes with consequences. [Cortez] could get raped over there. They have sexual assaults over there. It’s worse and more dangerous over there.” Benjamin Duran was a correctional officer at Salinas Valley State Prison. He testified that “[a] checking is . . . a method utilized in the prison setting for when an individual has committed a violation of set rules and regulations that are set on that facility for that specific group.” Typically, it is a “minor assault” and does not usually involve a weapon. In his experience “a weapon is utilized to create bodily injury, and it’s not used for checking, it’s more just used for an attempted murder.” B. Procedural Background The district attorney charged Cortez by second amended information with the willful, deliberate, and premeditated murder of Steven Lovely (Pen. Code,2 § 187, subd. (a); count 1) and custodial possession of a weapon (§ 4502, subd. (a); count 3). As to count 1, the information alleged that Cortez had four prior strike convictions (§ 1170.12, subd. (c)(2)(A)). The information also charged codefendant Bueno in counts 1 and 3, along with an additional charge in count 2 of assault by a life prisoner (§ 4500), and an additional allegation attached to count 1 (§ 190.2, subd. (a)(2) [murder with a prior murder conviction]). Prior to trial,3 the trial court heard motions in limine. It granted the People’s motion to admit evidence under section 969, subdivision (b) in support of the prior strike conviction allegations. It also granted the People’s 2 All further unspecified statutory references are to the Penal Code. 3 Cortez and Bueno were tried together.

5 motions to impeach Cortez with the strike priors alleged in the information should Cortez testify at trial. The court granted Cortez’s motion that he not be shackled or wearing inmate clothing during trial. The court granted Cortez’s motion to bifurcate the trial on the prior strike conviction allegations. The court denied Cortez’s motion to exclude surveillance video taken from the prison on the ground in that it did not show any medical treatment received by the victim. The court found the video relevant, and that any evidence of what the video did not show could be proven by the defense through other evidence. Later that day, Cortez waived his right to jury trial on the prior strike conviction allegations. Cortez admitted to having the following prior strike convictions: from 1999, a violation of section 212.5, subdivision (c) (with enhancements under sections 12022.5 and 12022.53) and two convictions of section 245, subdivision (a)(2); and from 2016, a violation of section 422 (with an enhancement under section 12022.5, subdivision (a)). Cortez’s jury trial took place from January 27 through 30, 2025.4 On January 29, Cortez brought a Marsden5 motion requesting new appointed counsel. The trial court cleared the courtroom and conducted a hearing on the request. The court denied the Marsden motion and sealed the record of the hearing. After the hearing, the People stated on the record that the prison had not preserved any of the body camera footage from the responding officers, except for a “2-second snippet” of when the officer fired from the launcher. That recording had been produced in discovery. The People had disclosed to 4 Unless otherwise specified, all dates were in 2025. 5 People v. Marsden (1970) 2 Cal.3d 118.

6 the defense all of the existing digital evidence from the prison related to the incident. Following denial of his Marsden motion, Cortez requested to represent himself. Cortez believed he would “fight for [himself] better than the way they [were] fighting for [him] right now.” When asked by the trial court, Cortez did not provide any specifics about how his self-representation would be better than his representation by trial counsel. Referencing the hearing on the Marsden motion, the court found that Cortez’s trial counsel had been representing him professionally and zealously and that she had been doing “an excellent job.” The court denied Cortez’s motion to represent himself as untimely, since the People had almost finished presenting their evidence and Cortez would need a trial continuance if he were to represent himself. After the People rested, Cortez and his codefendant brought a motion for entry of judgment of acquittal pursuant to section 1118.1, which the trial court denied. Cortez testified in his own defense but did not present any other evidence. Cortez’s codefendant Bueno did not testify. The People called one witness in rebuttal. After the close of evidence, the trial court instructed the jury. Among other instructions, the court informed the jury that Cortez and Bueno “are both charged in [c]ount 1 with murder in the first degree with premeditation and deliberation, in violation of Penal Code [s]ection 187, subsection (a).” On count 1, the court instructed the jury on first and second degree murder. The jury instruction for first degree murder stated in part, “The defendant is guilty of first-degree murder if the People have proved that he acted willfully, deliberately, and with premeditation.” The instruction for first or second degree murder with malice aforethought stated in part, “An act causes death if the death is the direct, 7 natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.” Following instructions, both sides presented closing argument. Cortez’s defense at trial was that he was not guilty of first or second degree murder, and he only “participated in an assault.” Cortez further argued that the treatment of Lovely in the hospital was a substantial factor in causing Lovely’s death because Lovely lived four days after the first surgery. Following final instructions, the jury retired for deliberations. The jury returned a verdict later that afternoon. The jury found Cortez guilty of count 1 and that he committed the murder willfully with deliberation and premeditation. In addition, the jury found Cortez guilty of count 3. The trial court sentenced Cortez on August 6. Cortez elected not to file a Romero motion. Cortez’s trial counsel explained that “Cortez has three trailing life cases that have not been litigated yet. . . . The prosecution has agreed to dismiss those cases in light of [counsel’s] strategic decision not to file a Romero.” Cortez stated on the record that he agreed with the decision not to file a Romero motion. On count 1, murder in the first degree, the trial court imposed on Cortez a term of 25 years to life, tripled pursuant to section 1170.12, subdivision (c)(2)(A), to 75 years to life. On count 3, the court imposed the 8 middle term of three years, doubled pursuant to strike law, to six years, stayed pursuant to section 654. The court ordered that the sentence be served consecutively to any other sentence Cortez was already serving. The court awarded zero days of custody credits. The trial court ordered a restitution fund fine of $10,000 (§ 1202.4, subd. (b)) and imposed and suspended a $10,000 parole revocation restitution fund fine (§ 1202.45). The court ordered a $80 court operations assessment (§ 1465.8, subd. (a)(1)) and a $60 court facilities assessment (Gov. Code, § 70373). The People dismissed three pending cases against Cortez. Cortez timely appealed his judgment of conviction. II. DISCUSSION We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. The abstract of judgment for Cortez’s indeterminate sentence (form CR–292; dated August 8, 2025) incorrectly states in section No. 1 that Cortez was convicted on count 1 of “murder second degree.” (Capitalization omitted.) That is incorrect. The jury returned a verdict finding Cortez guilty of first degree murder (§§ 187, subd. (a), 189). To conform the abstract to the conviction, we direct the trial court to prepare a new abstract of judgment that indicates Cortez’s conviction of first degree murder. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to Cortez. We therefore affirm the judgment. III. DISPOSITION The judgment is affirmed. The trial court is directed to prepare a new abstract of judgment for the indeterminate sentence that indicates Cortez 9 was convicted on count 1 of first degree murder (Pen. Code, §§ 187, subd. (a), 189). The trial court clerk is directed to forward a copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

10 ______________________________________ Danner, J.

WE CONCUR:

____________________________________ Greenwood, P. J.

____________________________________ Adams, J.

H053740 People v. Cortez