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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ALFRED FOREST ORTEGA,

Defendant and Appellant.

 B312874

 (Los Angeles County

 Super. Ct. 

 No. KA075836)

APPEAL from an order of the Superior Court of 

Los Angeles County. William C. Ryan, Judge. Affirmed.

Nancy L. Tetreault, 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, Assistant 

Attorney General, Noah P. Hill and Eric J. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________________
2

Defendant and appellant Alfred Forest Ortega appeals from 

the postjudgment order denying his petitions for recall of his 

sentence and resentencing pursuant to Penal Code sections 

1170.126 and 1170.18.

1 He contends 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 numerous times. 

From 1981 to 1983, he racked 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 great bodily injury (§ 12022.7). In the course of the 

robbery, he placed a gun to the 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 adult and sentenced to 

six years in state prison.

In 1991, Ortega was charged with attempted murder

(§ 664), including a gang allegation (§ 186.22). Ortega and 

several fellow gang members had surrounded a car driving to a 

local bar, forcing the car to stop. Ortega challenged the driver to 

a fight, then joined his companions in savagely beating him. The 

victim saw Ortega “slashing” at his torso. The victim survived, 

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 approximately one foot long and deep 

enough to expose 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 

allegation (§ 186.22), and was sentenced to 14 years in prison.

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, subd. (a)) and 

sentenced 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 [Ortega], who was talking 

loudly 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 rest 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 sprinklers. Shah called 

the police. [Ortega] hit his own vehicle with some branches and 

loitered about the other vehicles. Later, Shah’s brother’s vehicle 

was found with a broken rear-windshield wiper blade and bent 

antenna.

“Los Angeles County Deputy Sheriff Thomas Lines 

approached [Ortega] and ordered him to stop and put his hands 

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

started the engine, and tried to drive off. Another deputy tasered 

[Ortega] and recovered two knives. When [Ortega] was searched 

at the station, officers 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)), resisting arrest (§ 148, subd. (a)(1)), and possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)). 

These charges included a special allegation that Ortega

personally used a deadly and dangerous weapon (§ 12022, subd. 

(b)(1)), and an allegation that he had previously 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 

referred to as “EME.” 

A jury convicted 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 life under 

California’s “Three Strikes” law. We affirmed the convictions and 

sentence in 2008. (People v. Ortega, supra, B199516.)

III. Petitions for Resentencing

In 2013, Ortega filed a petition to recall his sentence 

pursuant to Proposition 36, also known as the Three Strikes 

Reform Act 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. The People 

opposed the petition.

Two years later, Ortega filed a petition for resentencing 

pursuant to Proposition 47, the Safe Neighborhoods and Schools 
5

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 accordingly.

Again, 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 withdrawing their earlier oppositions per reform directives 

issued by the district attorney’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 

resentencing him would “pose an unreasonable 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 trial court 

acknowledged 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 in any 

rehabilitative programming while incarcerated and his 

unsupportive post-release plans.” 

In particular, the 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 2013 and 

the filing of Ortega’s reply 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 

with and review opinions from experts.
6

guilty of acting in a leadership role in [EME],” including by 

giving other 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 evidence showing that Ortega used hidden cell phones 

to direct EME activities. This history raised concerns that 

Ortega had not learned from his prior mistakes, was unwilling to 

modify his behavior to comply with the law, and that he would 

continue to engage in violent and destructive gang-related 

activity.

Ortega timely appealed. 

DISCUSSION

I. Applicable Law and Standard of Review

A. Section 1170.126

Section 1170.126 was enacted as part of Proposition 36, 

which provides a procedure by which some prisoners already 

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 indeterminate term of life 

imprisonment, 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 section 667.5 or 

subdivision (c) of section 1192.7.” (§ 1170.126, subd. (e)(1).)

An inmate is ineligible 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. Section 1170.18

Proposition 47 redesignates 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 persons 

currently “serving a sentence 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 entered the judgment 

of conviction 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 risk of danger to public 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” enumerated in subdivision (e)(2)(C)(iv) 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 upon which the court’s finding of unreasonable risk is based 

must be proven by the People by a preponderance of the evidence 

. . . and are themselves subject to [appellate] review for 
8

substantial evidence.’” (People v. Frierson (2017) 4 Cal.5th 225, 

239.)

It is the defendant’s burden on appeal “‘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 determination . . . 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 authorized nor warranted 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 offense, the 

offender, and the public 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 serious risk of danger to public 

safety. He faults the court for failing to conduct an 

individualized inquiry by examining all the circumstances of the 

crime, including mitigating factors.

But that is just what the trial court did. It exhaustively 

analyzed all circumstances relevant to Ortega’s suitability for 

resentencing, including his criminal history, his prison 

disciplinary record, his participation in rehabilitative services, 

his age, his classification score, and whether he had created a 

realistic plan for release if paroled.
9

At several points in its analysis, the trial court 

acknowledged the presence of mitigating factors, such as the 

temporal remoteness of Ortega’s crimes, the lack of any violent 

acts in his prison record, and his advanced age and low 

classification score. However, 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 activity, 

and the infeasibility of his purported plan for release. 

In weighing these factors, the trial court stated that it 

“d[id] not undertake this balance lightly,” but ultimately

concluded that “the totality of the record, including consideration 

of all statutory factors, demonstrates that resentencing” Ortega 

would unreasonably endanger public safety.

This careful, evenhanded analysis does not constitute a 

reversible abuse of discretion.

B. Ortega’s counterarguments

Ortega raises three basic arguments in an attempt to 

convince us otherwise. 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 

nexus between his past crimes and his future risk of committing 

super-strike offenses, as required to discretionarily deny 

resentencing under section 1170.18, because his criminal history 

shows that he had never committed a super-strike offense. 

This argument does not hold water. A single prior 

conviction for a super-strike offense automatically renders a 

defendant ineligible for resentencing. (§ 1170.18, subd. (i).) If

Ortega’s convictions for lesser offenses could not provide the trial 
10

court with insight into whether he posed a current risk to public 

safety, his criminal history would add little value to the 

discretionary determination of his eligibility for resentencing. 

Yet section 1170.18 explicitly prompts trial courts to consider a 

defendant’s criminal history in detail when making 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 Cal.App.4th 74, 81.)

Ortega also contends that the trial court placed undue 

weight on his criminal history despite the immutability and 

remoteness in time of those offenses. This ignores that the trial 

court considered both the immutable nature of Ortega’s criminal 

history and the remoteness of his offenses in its analysis of his 

eligibility for resentencing. And, in any event, the remoteness of 

Ortega’s crimes was significantly tempered by the fact he has 

been all but consistently incarcerated since his first conviction as 

an adult in 1984. (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 opportunity to commit 

additional crimes]; People v. Gaston (1999) 74 Cal.App.4th 310, 

315 [“[i]n deciding a defendant’s ‘prospects’ for committing future 

crimes, the sentence imposed by the trial court is itself a factor, 

since the defendant presumably will have fewer opportunities to 

commit crime 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 while 
11

in prison. He alleges that the investigation 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 gang 

investigations or the specific confidential information disclosure 

forms summarizing information given, which forfeits any 

contention regarding their use. (Evid. Code, § 353, subd. (a); see 

People v. Holford (2012) 203 Cal.App.4th 155, 168–169.)

But even if Ortega had not forfeited this argument by

failing to object below, the limited information provided in the 

record demonstrates that these documents are sufficiently 

reliable for the purposes of resentencing. 

We have held that, in the context of resentencing, a court

may rely on any “‘“relevant, reliable, admissible portions of the 

record of conviction to determine the existence or nonexistence of 

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

39 Cal.App.5th 930, 935.) The reliability of information provided

by confidential informants is established by the presence of any 

of the enumerated indicia of reliability codified in section 3321 of 

title 15 of the California Code of Regulations. Each of the 

confidential information disclosure forms filed in connection with

the investigation into Ortega’s gang activities includes a

reliability determination personally made by the investigating 

3 The only case Ortega cites in support of this argument is 

our Supreme Court’s opinion in People v. Zermeno (1999) 

21 Cal.4th 927. That case discusses the sufficiency of evidence 

proffered to prove a defendant’s involvement in gang activity, but 

does not address any issues related to the reliability of that 

evidence or the credibility of its sources. (Id. at pp. 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 investigating officers confirmed that the 

information provided by these informants was self-incriminating, 

and thus inherently reliable (§ 3321, subd. (c)(3)), that multiple 

confidential informants independently provided the same 

information about Ortega’s activities (§ 3321, subd. (c)(2)), and 

that part of the information provided by the informants had been 

corroborated through investigation or information provided by 

nonconfidential sources (§ 3321, subd. (c)(4)).

We cannot review the confidential memoranda summarized 

by these confidential information disclosure forms, and thus 

cannot confirm whether these 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 part 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.]” (People v. Moore (2021) 68 Cal.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 notes several additional 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 components of a supportive living environment in the event 

of his release. But as stated above, we cannot reverse the trial 
13

court’s decision just because “‘reasonable people might disagree’” 

about the relative strength of these factors. (Alvarez, supra, 

14 Cal.4th at p. 978.) 

DISPOSITION

The order denying Ortega’s petitions for resentencing is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_____________________________, P. J.

LUI

____________________________, J.

CHAVEZ