Filed 10/4/ 22 P. v. Ortega CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specifie d by rule 8.1115(b ). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Re spondent

,

v.

ALFRED FOR EST ORTEG A,

D efendant and Appellant. B31 2 874

(Los Angeles County Super. Ct. No. KA075836)

APPEAL from a n order of the Superior Court of Los Angeles County. Willia m C. Ryan , Judge. Affirmed.

Nancy L. Tetre ault , under appoin tment by the Co urt of Appeal, for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, S usan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Eric J. Kohm

, Deputy Attorney s General, for Pla intiff an d Resp ondent.

______________________________2 Defendant and appellant Alfred Forest Ortega appeals from
the postjudgment order denying his petition s for recall of his sentence and resentencing pursuant to Penal Code sections

11 70.126 and 1170.18

. 1 He co ntends that the trial court abused its discretion in finding him unsuitable for recall and resentencing.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior Criminal Proceedings As a teenager

, Ortega ran afoul of the law n umerous times

. Fr om 1981 t o 1983 , he rack ed up sustained charges for , among other things, prowling (§ 647, subd. ( h )) , burglary (§ 459)

, trespassing (§ 602.5)

, and battery (§ 242)

. In 1984, at age 17, Ortega was convicted of robbery (§ 211)
and causing gr eat bodily injury (§ 12022. 7)

. I n th e course of the robbery, he placed a gun to th e victim’s head and threatened to
kill him

. When the victim attempted to get control of the gun, Ortega knocked him to the ground and beat him before fleeing in
the victim’ s car. Ortega was tried as an ad ult and sentenced to six years in state prison. In 1991, Ortega was charged with attempted murder (§ 664) , including a gan g allegation (§ 186.22)

. Ortega and
several fellow gang members had surrounded a car driving to a
l ocal bar, forcing the car t o stop

. Ortega challenged the driver to a fight , then joined his companions in savagely beat ing him. The
victim saw Ortega “ slashing ” at his torso. The victim survi ved

, but had to be treated at the hospital for three gashes on his

1 All further statutory references are to the Penal Code unless otherwise indicated.3

abdomen that were each appro ximately one foot long and deep enough to e xpose his internal organs. Ortega pled guilty to assault with a deadly weapon (§ 245, subd. (a)(1)) and mayhem (§ 203) , including a firearm allegation (§ 12022.5) and a gang alleg ation (§ 186.22)

, and was s entenc ed to 14 years in priso n. In 2005, Ortega’s neighbors called the police to report that
he had been selling drugs and threatening people in the neighborhood

. He was convicted of possession of methamphetamine (Health & Saf. Code, § 11377, su bd. (a)) and

se ntenced to three years in prison.
II. Current Offense While on probation, Ortega committed the offense underlying this appeal.

“ On July 23, 2006, Akshay Shah and his family were at a park when they were approached by [O rtega] , who was ta lking
lou dly to himself. [Ortega] rifled through a bag owned by Shah’s nephew and removed his glasses. Shah confronted [Ortega] , who displayed a 10

- inch knife, concealed in his left hand, with the blade pointing toward his inner elbow. Shah backed away and
told the re st of the family to stay away from [Ortega]

. [Ortega] walked about 10 feet away, returned, and put the glasses on the ground next to the bag. Yelling, [Ortega] walked toward the parking lot and kicked a garbage can and sp rinklers. Shah ca lled
the police

. [Ortega] hit his own vehicle with some branches and
loitered about the other vehicles. Later, Shah ’ s brother ’ s vehicle
was found w ith a broken rear

- windshield wiper blade and bent

antenna. “Los Angeles County Deputy She riff Thomas Lines approache d [Ort ega] and ordered him to stop and put his hands

up. [Ortega] ignored his commands, got inside his vehicle,4

started the engine, and tri ed to drive off. Another deputy tasered [Ortega] and recovered two knives. When [Ortega ] was searched

at the stati on, of

ficers found a plastic bag containing methamphetamine in the right front pocket of his pants.” ( People v. Ortega (July 2, 2008, B199516) [nonpub. opn.] at pp. 2

– 3.) Ortega was charged with robbery (§ 211), vandalism (§ 594

, subd. (a)), resi sting arr est (§ 148, subd. (a)(1)), and possession of methamphetamine (Health & Saf. Code

, § 11377, subd. (a)).
Thes e charges included a special allegation that Ortega personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) , and an allegatio n that he had p reviously committed a serious or violent felony (§§ 1170.12, subds. (a)

- (d), 667, subds. (b)

- (i)). When he was taken into custody for this offense, he also admitted to membership in the Mexican Mafia, a gang commonly
refer red to as “EME.” A jury co nvicte d Ortega for resisting arrest and possession of methamphetamine, as well as the lesser offense of petty theft (§ 484). Due to Ortega’s prior convictions, the trial court sentenced him to an aggregate term of 25 years to li fe under
Californi a’s “ Thre e Stri kes ” law. We affirmed the convictions and

s entence in 2008. ( People v. Ortega , supra, B199516

. )
I II

. Petitions for Resentencing In 2013, Ortega filed a petition to recall his sentence pursuant to Proposition 36, also kn own as the Three S trikes
Re form A ct of 2012 (§ 1170.126) , arguing that his third strike felony for possession of methamphetamine was not a serious or violent felony warranting an indeterminate sentence

. T he People opposed the petition. Two years later, O rtega filed a peti tion for resent encing pursuant to Proposition 47, the Safe Neighborhoods and Schools5

Act (§ 1170.18) , arguing that his third strike felony conviction for possession of methamphetamine should be reduced to a
misdemeanor and that he should be resentenced acc ordingly

. Agai n, the People opposed his petition. On August 12, 2019, after requesting and receiving multiple extensions of the filing deadline, 2 Ortega submitted a combined reply in support of his petitions. The People responded by w ithdrawing their e arlier op positi ons per reform directives
issued by the d istrict a ttorney ’s office of Los Angeles County

. After an evidentiary hearing, the trial court denied both of Ortega’s petitions. In a 17

- page order, the trial court found that

res entencing him woul d “pose a n unre asonable risk of danger to public safety” under both sections 1170.126 , subd. (f) and

1170.18 , subd. (b)

. The order includes a lengthy analysis of multiple factors
relevant to Ortega ’s suitability for resentencing. The tr ial court
acknowle dged that some of these factors weighed in favor of resentencing, but ultimately found that “these factors are outweighed by [ Ortega’s ] criminal history[,]

. . . [his] continued misconduct in prison[,]

. . . [his] failure to participate i n any rehabilitati ve progra mming while incarcerated and his unsupportive post

- release plans.” In particular, t he trial court noted that Ortega’s prison disciplinary record contained an investigation which “ found [him]

2 Ortega received approximately 30 time extensions between the filing of the People’s first opposition in December 20 13 and the filing of Ortega ’s re p ly in August 2019. These extensions were granted for a variety of reasons, including to facilitate changes of counsel

, to obtain trial transcripts and other materials

, and to give Ortega and his counsel time to consult wit h and review opini ons from exper t s

.6

guilty of acting in a leadership role in [EME] ,” includ ing by gi ving o ther gang members an order to assault inmates designated as targets of EME

. Ortega had also been twice disciplined for unlawful possession of a cell phone, which the trial
court noted would have been a “ relatively benign ” infraction were
it not for eviden ce showing that Ortega used hidden ce ll phones
to direct EME activities. This history raised concerns that Ortega had not learn ed from his prior mistakes

, was unwilling to modify his behavior to comply with the law , and th at he would
contin ue to eng age in violent and destructive gang

- related activity

. Ortega timely appealed.

DISCUSSION
I. Applicable Law and Standard of Review
A. Section 1170.126
S ection 1170.126 was enacted as part of Proposition 36, which provides a pro cedure by wh ich so me prison ers al ready serving third strike sentences may seek resentencing in accordance with new sentencing rules. ( People v. Johnson (2015) 61 Cal.4th 674, 682.) A defendant is only eligible for resentencing if he is serving an indeter minate term of lif e impriso nment, pursuant to the Three Strikes law, “for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of s ection 667.5 or subdivision (c) of section 1192.7.” (§ 1170.126, subd. (e)(1) .)
An inmate is ineli gible for resentencing under section 1170.126 if, as relevant here, the trial court determines that resentencing a defendant would pose an unreasonable risk of danger to public safety. (§ 1170.126, subds. (e) & (f).)7 B. S ection 1170.18
Pro position 47 red esignates as misdemeanors “certain drug

- and theft

- related offenses” that were charged or sentenced as felonies. (

People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; § 1170.18.) Among other things, Proposition 47 permits p ersons currently “ serving a sente nce for a conviction

. . . of a felony or felonies who would have been guilty of a misdemeanor

. . . had this act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that e ntered the judgmen t of conv iction in his or her case to request resentencing

. . . . ” (§ 1170.18, subd. (a).) As with section 1170.126, the trial court may deny a petition for resentencing if it determines that a defendant “would pose an unreasonable ri sk of danger to publ ic safety .” (§ 1170.18, subd. (b).) However, unlike section 1170.126, section 1170.18 specifically defines “unreasonable risk of danger to public safety” as “an unreasonable risk that [ a defendant] will commit a new violent felony” en um erated in subdivis ion (e)(2 )(C)(i v) of section 667. (§ 1170.18, subd. (c).) These felonies are the so

- called “super

- strike” offenses

, such as murder, sexual violence, and crimes carrying a sentence of death or life imprisonment without the possibility of parole

. (§ 667
, subd. ( e ) (2)(C) (iv) .)
C. Standard of Review “The determination whether a defendant poses an unreasonable risk of danger to public safety is discretionary (§ 1170.126, subd. (f) [see also § 1170.18, subd. (b)] ), and

. . . ‘[t]he facts up on which the court ’ s findin g of u n reasonable risk is based must be proven by the People by a preponderance of the evidence

. . . and are themselves subject to [appellate] review for8

substantial evidence.’” ( People v. Frierson (2017) 4 Cal.5th 225, 239.)
It is the defendant ’ s burden on app e al “‘to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary dete rmination

. . . will not be set aside on review.’” ( People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977

– 978 ( Alvarez ).) “‘[A] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is
neither author ized nor warran t ed in substituting its judgment for the judgment of the trial judge.” [Citation.]’” ( Id. at p. 978.) In general, a ruling is not arbitrary and capricious if it “is based upon an ‘individualized consideration of the off ense, the
offender , and the publi c interest.’” ( People v. Sandoval (2007)

41 Cal.4th 825, 847.)
II. Analysis
A. The trial court did not abuse its discretion Ortega argues that the trial court abused its discretion in finding that he currently posed a se rious risk of dang er to pub lic

sa f ety. He faults the court for failing to conduct an individualized inquiry by examining all the circumstances of the crime, including mitig ating factors.
But th at is just what the trial court did. It exhaustively analyzed all circumstances relevant to Or t ega’s suitability for resentencing , including his criminal history, his prison disciplinary record , his participation in reha bilitative services, his age, his classification score, and whether he had created a realistic pl an for release if paroled.9 At sev e ral points in its analysis, the trial court acknowledged the presence of mitigating factors , such as the temporal remoteness of Ortega’s crim es , the lack of any violent acts in his prison record , and his advanced age and l ow classification score. H owever , the trial court also noted several aggravating factors, commenting on the seriousness of Ortega’s crimes, his leadership role in a prison gang, his apparent willingness to flout the prison’s rules to facilitate gang activ ity,
and the infea sibility of his purported plan for release. In weighing these factors, the trial court stated that it “d[id] not undertake this balance lightly ,” b ut ultimately concluded that “the totality of the record, including consideration
of all s tatutory factors, demonstra tes th a t resentencing” Ortega would unreasonably endanger public safety. This careful, evenhanded analysis does not constitute a
reversible abuse of discretion.
B. Ortega’s counterargument s Ortega raises three basic arguments in an attempt to

con vince us otherw i se

. These arguments are unpersuasive

.

1. Trial court’s reliance on Ortega’s criminal history Ortega challenges the trial court’s reliance on his criminal history. He argues that the trial court could not have found a

n exus between his p ast crime s and h is future risk of committing

super

- strike offenses, as required to discretionarily deny resentencing u nder section 1170.18 , because his criminal history
shows that he had never committed a super

- strike offense. This argu ment does not hold water

. A sing l e prior conviction for a super

- strike offense automatically renders a
defendant ineligible for resente ncing . (§ 1170.18, subd. (i).) If Ortega’s convictions for lesser offenses could not provide the trial10

court with insi ght into whether h e posed a curre n t risk to public safety

, his criminal history would add little value to the discretionary determinatio n of his eligibility for resentencing.
Yet section 1 1 70.18 explicitly prompts trial court s to consider a
defendant’s cr iminal history in detail wh en mak i ng this
determination

. (§ 1170.18, subd. (b)(1).) We decline to accept any arguments that would “ ‘ render portions of the statute meaningless [or] frustrate the evident purpose of the law. ’ ” ( People v. Moore (2004) 118 C al.App.4th 74 , 81. ) Ortega also c ontends that the trial court placed undue weight on his criminal history despite the immutability an d
remoteness in time of those offenses. This ignores that the trial
court considered both the immutable nature of Ortega’ s criminal history and the remote n ess of his offenses in its analysis of his eligibility for resentencing

. And, i n any event, the rem oteness of Ortega’s crimes was significantly tempered by the fact he has
been all but consistently incarcerated since his first conviction a s an adul t in 1 9 84

. (Cf. People v. Loy (2011) 52 Cal.4th 46, 62 [prior crimes were not remote for purposes of Evid. Code, § 352 where defendant had been in prison a significant portion of the intervening time and thus had little opportun ity to commit
addi tional cr imes]; People v. Gaston (1999) 74 Cal.App.4th 310, 315 [“[i]n deciding a defendant ’ s ‘prospects’ for commit ting future crimes, the sentence imposed by the trial court is itself a factor, since the defendant presumably will have f ewer opportunities to commi t crim e while in prison”].)

2. Credibility of evidence regarding Ortega’s gang activity in prison Ortega argues that the trial court relied on evidence of “dubious reliability” in evaluating his alleged gang activity while11

in p rison. H e alleges that the inves t igation was based on information obtained from confidential informants who may not
have been reliable sources. 3 We note that Ortega did not object to the trial court ’ s reliance on either the conclusions reached by the ga ng investigations or the sp ecific confidential information disclosure forms summarizing information given , which for feits any contention regarding their use. (Evid. Code, § 353, subd. (a); see People v. Holford (2012) 203 Cal.App.4th 155, 168

– 169.)
But ev en if Ortega had n ot forfei t ed th i s argument by failing to object below , the limited information provided in the

rec ord demonstrates that these documents are sufficiently
reliable for the purposes of resentencing.
We have held that, in the context of res entencing, a court may rely on an y “‘ “ relevant, reliable, admissible portions of the
record of conviction to determi ne the existence or nonexistence of disqualifying factors

. ” ’ [Citations.]” ( People v. Thomas (2019)

39 Cal.App.5th 930, 935.) The reliabil ity of information provided by co n fidential informants is established by the presence of any
of the enumerated indic ia of reliability codified in section 3321 of

t itle 15 of the California Code of Regulations

. Each of the
confidential information disclosu re forms filed in connectio n with the investigation into Ortega’s gang activities includes a reliability determination personally made by the investigating

3 The only case O rtega cites in support of this argument is

our Supreme Court’s opinion in People v. Ze rmeno (1999)
21 Cal.4th 927

. That case discusses the sufficiency of evidence proffered to prove a defendant’s invol vement in gang act ivity, bu t doe s not address any issues related to the reliability of tha t evidence or the credibility of its sources. ( Id. at p p. 930

– 931.) We fail to see what relevance this case has to Ortega’s argument.12

officer attesting to the presence of one or more of these indicia

. As relevant here, the investigat ing officers confi rmed that the
i n formation provided by these informants was self

- incriminat ing, and thus inherently reliable (§ 3321, subd. (c)(3)), that multiple confidential informants independently provided the same information about Ortega’s activitie s (§ 3321, subd. ( c)(2))

, a nd
tha t part of the information provided by the informants had be en corroborated through investigation or information provided by nonconfidential sources (§ 3321, subd. (c)(4))

. We cannot review the confidential memoranda summari zed by these confi dential i nforma t ion disclosure forms, and thus

cannot confirm whether thes e reliability determinations are supported by substantial evidence (see In re Jackson (1987)

43 Cal.3d 501, 516), as the confidential memoranda have not been made p art of the record on appeal . “Of course, ‘the
defendant

. . . bears the burden to provide a record on appeal which affirmatively shows that there was error below, and any uncertainty in the record must be resolved against the
defendant. ’ [Citation.] ” ( P eople v. Moore (20 21) 68 Ca l.App

. 5th 856, 866.) Therefore, we conclude that the evidence of Ortega’s prison gang activity was sufficiently reliable for the trial court to rely on it in denying his petitions for resentencing.

3. Other mitigating factors Lastly, Ortega not es severa l add i tional factors that could have reasonably led the trial court to a different conclusion : the role of Ortega’s youth in his early criminal endeavors, his attempts to engage in rehabilitative services and come up with

some c omponents of a sup portive l iving environment in the event
of his release. But as stated above, we cannot reverse the trial13

court’s decision just because “ ‘ reasonable people might disagree ’ ” about the relative strength of these factors. ( Alvarez

, supra , 1 4 Cal.4th at p. 97 8 .)
DIS POSIT I ON
The order denyin g Ortega’s petition s for resentencing is
affirmed

. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

__________________________, J. ASHMANN

- GERST

We concur:

_____________________________, P . J.

LUI

______ _________

_____ _ _______, J. CHAVEZ