People v. Ortega CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD152560
- Trial judge
- Peter C. Deddeh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Patricia D. Benke
Analysis
The trial court denied Ortega's petition for resentencing under Penal Code section 1170.95, finding he was a direct perpetrator and the jury was not instructed on felony murder or natural and probable consequences. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“Accordingly, the court found Ortega had not stated a prima facie case for relief under section 1170.95 and denied the petition.” | unclear | not reached | unsure The appellate court did not apply a specific standard of review (such as abuse of discretion) to the trial court's ruling. Instead, it conducted an independent review of the record pursuant to People v. Wende and Anders v. California, concluding that no arguable issues for reversal existed. The court noted that Ortega's supplemental filing did not raise any arguable issues, effectively bypassing a detailed analysis of the trial court's legal application in favor of a general search for error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when they cannot identify arguable issues, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation in an appeal where no arguable issues exist, requiring a brief identifying potential issues and a court review of the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its adherence to Wende/Anders protocols, as it explicitly states that counsel filed a Wende brief and the court reviewed the entire record. However, it is substantively thin because it fails to address the specific legal standards for section 1170.95 petitions (such as the definition of 'direct perpetrator' or the prima facie showing requirements) and instead relies solely on the absence of 'arguable issues' identified by counsel and the court's own review.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court denied Ricardo Ortega's Penal Code section 1170.95 resentencing petition at the prima facie stage after appointing counsel, receiving briefing, and reviewing the record of conviction and the prior appellate opinion, finding he was a direct perpetrator of a first degree murder and that his jury was never instructed on felony murder or the natural and probable consequences doctrine. On appeal, counsel filed a Wende brief, Ortega filed a brief supplemental statement, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition at the prima facie stage without issuing an order to show cause or holding an evidentiary hearing, based on the finding that Ortega was a direct perpetrator and the jury was not instructed on felony murder or natural and probable consequences“The court found Ortega was a direct perpetrator and that the jury was not instructed on felony murder or natural and probable consequences. Accordingly, the court found Ortega had not stated a prima facie case for relief under section 1170.95 and denied the petition.” | unclear | correct | agree with court Section 1170.95 relief is available only to persons convicted under a felony-murder or natural and probable consequences theory. Where the record of conviction shows the jury was not instructed on either theory, the defendant is ineligible as a matter of law and no order to show cause is required. The opinion recites that the trial court reviewed the record of conviction and the prior appellate opinion before so finding, and Ortega's own supplemental statement concedes the jury was not instructed on natural and probable consequences. The appellate court conducted only a Wende review and did not state a standard or engage the eligibility question in detail, but on the facts recited the result is correct. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may file a brief identifying possible issues to assist the court's independent review of the record.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent review is constitutionally required only on a defendant's first appeal of right; it does not extend to appeals from postconviction orders, where the court may dismiss the appeal as abandoned if the defendant files no supplemental brief raising arguable issues.
The appellate opinion: sound with gaps — The court applied Wende review to a postconviction section 1170.95 appeal without addressing whether that procedure applies to such appeals (a question then unsettled and on which People v. Serrano held it does not), and it did not independently explain why the record of conviction established ineligibility as a matter of law, relying instead on a bare statement that no arguable issues exist. The result is nonetheless defensible because a defendant whose jury was never instructed on felony murder or natural and probable consequences is ineligible for section 1170.95 relief, and the opinion's recitation of the trial court's findings and Ortega's own concession supports that conclusion.
Opinion
Filed 6/23/21 P. v. Ortega CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078226
Plaintiff and Respondent, v. (Super. Ct. No. SCD152560)
RICARDO ORTEGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed. Ricardo Ortega, in pro. per.; and Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2001, a jury convicted Ricardo Ortega of first degree murder (Pen.
Code,1 § 187, subd. (a)). Ortega was sentenced to an indeterminate term of 25 years to life in prison. Ortega appealed and this court affirmed the 1 All further statutory references are to the Penal Code. judgment in an unpublished opinion filed November 26, 2002. (People v. Bonilla, et al. (Nov. 26, 2002, D037882) nonpub. opn.].) In 2019, Ortega filed a petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction and this court’s prior opinion. The court found Ortega was a direct perpetrator and that the jury was not instructed on felony murder or natural and probable consequences. Accordingly, the court found Ortega had not stated a prima facie case for relief under section 1170.95 and denied the petition. Ortega filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. Ortega has responded with a very brief statement of two facts regarding the trial court’s actions. We will discuss Ortega’s supplemental filing below. STATEMENT OF FACTS Ortega’s brief has a summary of the facts of the offense as set forth in our prior opinion. We incorporate that summary here for background. Basis of Petition - Original Guilt Proceedings The petition was based on Ortega’s April 2, 2001 conviction of first degree murder. On August 9, 2000, the San Diego County District Attorney filed an information charging Ortega and Gabriel Miguel Bonilla with the 1999 murder of Eric H. (§ 187, subd. (a).) The information further alleged that Ortega had suffered three prior prison terms. (former § 667.5, subd. (b).)
2 On April 2, 2001, following a joint trial with separate juries, Ortega was found guilty of first degree murder.2 The same day, the trial court made true findings on the prior conviction allegations. On April 26, 2001, after striking one of the prior prison terms, Ortega was sentenced to 25 years to life for murder, enhanced by two years. Ortega appealed. In an opinion filed November 26, 2002, (People v. Bonilla et al., supra, D037882), this court affirmed the judgment. The opinion recounted the facts, in relevant part, as follows: In April 2000, Eric’s body was found in a shallow grave in codefendant Bonilla’s back yard. The grave was covered by plywood and an engine block. Inside were pockets of muriatic acid and a black and yellow screwdriver. Eric’s blood was found in Bonilla’s garage, a short distance from the grave. The cause of death was determined to be multiple sharp-force injuries to the neck. The screwdriver could have caused the stab wounds on the victim’s neck, but not the cuts. Eric was determined to have died six to eight months before his body was found. Bonilla and Ortega were linked to the homicide by statements they made to others. As relevant here, Bonilla, while in custody, told his uncle, Charles McCoy, that he, Bonilla, and another male, Martinez, jumped on Eric. Bonilla held Eric down while Martinez stabbed him. Ortega also talked to an inmate, Gregory Sherman, when he was in custody. Ortega asked Sherman, a “jailhouse lawyer,” for advice. Ortega said he, Bonilla, and Martinez were inside Bonilla’s garage with Eric and a number of other people. The trio talked about killing Eric, who was not well liked. The discussion ended when Eric left the garage. When Eric returned 2 Codefendant Bonilla also was found guilty of first degree murder. 3 some time later, the trio killed him near a sink in the garage and then buried Eric in Bonilla’s back yard. Ortega also talked about the incident with his friend, Ray Lara. Lara had driven Ortega to Bonilla’s house on the day of the homicide. While Lara waited outside, Ortega went inside. He had a black and yellow screwdriver in his back pocket. When Ortega came back outside, he had a large spot of blood on his shirt. Ortega said he was going to stay and help Bonilla. About a week later, Ortega told Lara that he and Bonilla were in the garage with some guy who owed them too much money. Bonilla cut the guy’s throat and Ortega stabbed him. Ortega and a third person dug a hole, and Bonilla threw the body in and parked a truck over it. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal. 1. Whether the trial court erred in denying Ortega’s petition for relief under section 1170.95 at the second prima facie stage of review without the issuance of an order to show cause and evidentiary hearing; and 2. Whether the trial court’s denial of Ortega’s petition constituted prejudicial error. In his supplemental response, Ortega made two statements. First, he noted the trial court referred to him as “appellant” when the court appointed counsel, but the court did not issue an order to show cause or hold an evidentiary hearing. Second, Ortega noted the jury in his case was not instructed on natural and probable consequences. We are not sure what 4 Ortega’s point is in reciting these facts, but whatever the purpose, his submission does not raise any arguable issues for reversal on appeal. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Ortega on this appeal. DISPOSITION The order denying Ortega’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12