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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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,

Plaintiff and Respondent,

v.

JOSE ORTIZ,

Defendant and Appellant.

 B311516

 (Los Angeles County

 Super. Ct. 

No. BA108995)

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.
2

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 coconspirator 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 

1 Undesignated statutory references that follow are to the 

Penal Code.

2 Defendant was tried with a co-defendant, Daniel Logan. 

Three other defendants were tried separately.
3

furtherance of said conspiracy and were a natural and probable 

consequence of such conspiracy.”

Defendant was sentenced to 129 years to life in prison.

3

 On 

direct appeal, this court struck a gang enhancement but 

otherwise affirmed the judgment.

4

 (People v. Logan (Aug. 31, 

1998, B113206) [nonpub. opn.].)

Decades later, defendant filed a form petition for 

resentencing under section 1172.6. He checked boxes to assert 

(1) a complaint or information was filed against him that allowed 

the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine, 

(2) he was convicted of first or second degree murder pursuant to 

one of those theories at trial, and (3) he could not now be 

convicted of first or second degree murder because of changes to 

sections 188 and 189. Defendant also requested appointment of 

counsel.

The trial court denied the petition without appointing 

counsel for defendant because the court believed he failed to 

make a prima facie case for relief. The court reasoned: “A 

petition for resentencing under [section 1172.6] is only available 

to a person convicted of felony murder or murder under a natural 

and probable consequences theory. [Citation.] The court has 

read and considered the unpublished appellate opinion in this 

3 Before sentencing, the trial court struck a multiple murder 

special circumstance finding because “the jury should have been 

told . . . they must find an intent to kill.”

4 This court granted defendant’s request to take judicial 

notice of the record in his direct appeal. (Evid. Code, §§ 452, 

subd. (d) and 459.)
4

case and finds that the defendant was found guilty of five counts 

of first degree murder based on a direct aiding and abetting 

theory, as such, he is not eligible for resentencing . . . .”5

In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our 

Supreme Court held that petitioners under section 1172.6 “are 

entitled to the appointment of counsel upon the filing of a facially 

sufficient petition [citation] and that only after the appointment 

of counsel and the opportunity for briefing may the superior court 

consider the record of conviction to determine whether ‘the 

petitioner makes a prima facie showing that he or she is entitled 

to relief.’ [Citation.]” (Id. at 957.) The Legislature subsequently 

amended the statute to codify this holding. (Stats. 2021, ch. 551, 

§ 1(b); see also § 1172.6, subd. (b)(3) [“Upon receiving a petition in 

which the information required by this subdivision is set forth or 

a petition where any missing information can readily be 

ascertained by the court, if the petitioner has requested counsel, 

the court shall appoint counsel to represent the petitioner”].)

Under Lewis and section 1172.6 as amended, the trial court 

should have appointed counsel for defendant. The failure to do so 

was prejudicial. (Lewis, supra, 11 Cal.5th at 974 [error in 

deciding not to appoint counsel is prejudicial if it is reasonably 

probable that if the defendant had been afforded assistance of 

counsel his petition would not have been summarily denied].) As

the Attorney General appropriately concedes, the error is not 

harmless because defendant’s record of conviction does not 

establish that he is ineligible for resentencing as a matter of law. 

5 A page (or pages) of the trial court’s minute order

apparently discussing the facts of the case appears to be missing 

from the record on appeal.
5

The Attorney General acknowledges the trial court’s instructions 

permitted the jury to find defendant guilty of “all five murders 

because he conspired to commit an uncharged robbery in which a 

co-conspirator killed the victims, and the killing was a natural 

and probable consequence of the object of the conspiracy.”6

We shall accordingly reverse and remand with directions 

for the trial court to appoint counsel, to issue an order to show 

cause pursuant to section 1172.6, subdivision (c), and to 

thereafter proceed consistent with section 1172.6, subdivision (d). 

That is the disposition the Attorney General recommends, but 

defendant suggests this is the “minimum” relief to which he is 

entitled and urges us to instead “remand[ ] for resentencing.” We 

decline. The prosecution must have the opportunity at the 

statutorily prescribed hearing to prove defendant can be found

guilty of murder under current law.

7

(§ 1172.6, subd. (d).)

6 The fact that defendant was convicted of first degree 

murder does not preclude the possibility that the jury relied on a 

natural and probable consequences theory. Defendant’s trial predated People v. Chiu (2014) 59 Cal.4th 155, in which our Supreme 

Court held that “an aider and abettor may not be convicted of 

first degree premeditated murder under the natural and probable 

consequences doctrine.” (Id. at 158-159.)

7 We also reject defendant’s additional request that we 

admonish the trial court that it should not rely solely on the 

opinion from his direct appeal. The trial court will apply 

prevailing law on remand.
6

DISPOSITION

The order denying defendant’s section 1172.6 petition is 

reversed and the cause is remanded with directions to appoint 

counsel, to issue an order to show cause pursuant to section 

1172.6, subdivision (c), and to thereafter proceed consistent with 

section 1172.6, subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.