People v. Cortez
234 Cal. Rptr. 3d 609
Cal. Ct. App. 5th2018Background
- Defendant Cortez and co-conspirator Saavedra allegedly conspired to murder Rene Perez and Alvino Barrera; two shooting episodes occurred on Aug. 17, 2013 (a single shot toward Perez’s car and a later ~30‑round assault on the Valle residence, occupied by family).
- Defendant admitted possession of multiple rifles (including a Norinco-320 considered an assault weapon) and ammunition; he was a convicted felon prohibited from possessing firearms.
- A jury convicted Cortez of (inter alia) conspiracy to commit murder, felony weapons offenses, assault with a firearm, and possessing an assault weapon; court imposed a determinate term (29 years 4 months) plus an indeterminate 25‑to‑life term.
- On appeal Cortez argued the trial court erred by (1) failing to instruct sua sponte on two lesser included conspiracy offenses (conspiracy to commit assault with a firearm; conspiracy to shoot at an inhabited dwelling), (2) denying a requested self‑defense instruction, (3) insufficient evidence that he personally and intentionally discharged a firearm for the conspiracy enhancement, and (4) several sentencing errors (some conceded by the People), including application of a firearm enhancement affected by recently enacted SB 620.
- The court affirmed the convictions, held no sua sponte instruction was required (and any error would be harmless), rejected other substantive challenges, but remanded for resentencing to correct and exercise discretion on certain firearm enhancements per statutory amendments.
Issues
| Issue | People’s Argument | Cortez’s Argument | Held |
|---|---|---|---|
| Whether trial court had a sua sponte duty to instruct on conspiracy to commit assault with a firearm and conspiracy to shoot at an inhabited dwelling as lesser included offenses of conspiracy to commit murder | The accusatory pleading and overt acts do not necessarily include those lesser conspiracies; evidence supports murder conspiracy only | The overt acts alleged could support lesser conspiracy targets; court should have instructed sua sponte on those lesser offenses | No duty to instruct; lesser conspiracies were not necessarily included and substantial evidence supported murder conspiracy; any error harmless |
| Whether failure to instruct on those lesser conspiracies violated federal due process | Instruction unnecessary under state law; no federal right to lesser included instruction in noncapital case | Denial deprived Cortez of a complete defense | Rejected — no federal constitutional error where offenses not necessarily included and lacking evidentiary support |
| Whether substantial evidence supported finding Cortez personally and intentionally discharged a firearm for the conspiracy enhancement | Evidence (witnesses, shell casings, defendant’s possession of rifle, eyewitness descriptions) supported the finding | Argued evidence insufficient to prove he personally and intentionally discharged | Court upheld the finding (conspiracy conviction rested on Valle shooting; jury found he personally and intentionally discharged) |
| Sentencing errors and application of amended §12022.53(h) (SB 620) | People conceded several sentencing errors and agreed remand for correction and to allow trial court to exercise discretion under SB 620 | Requested remand to permit court to consider striking enhancement under amended statute | Remanded: strike/stay specified §12022(a)(1) enhancements, stay one of the counts under §654, and permit trial court to exercise discretion under amended §12022.53(h) regarding striking the §12022.53(c) enhancement |
Key Cases Cited
- People v. Fenenbock, 46 Cal.App.4th 1688 (Cal. Ct. App.) (overt act allegations in conspiracy pleading do not, by themselves, convert conspiracy to murder into conspiracies against lesser target offenses)
- People v. Cook, 91 Cal.App.4th 910 (Cal. Ct. App.) (trial court may consider overt acts in pleading when assessing lesser included conspiracy instructions; factual notice can support such instruction)
- People v. Licas, 41 Cal.4th 362 (Cal.) (state sua sponte duty to instruct on necessarily included offenses supported by substantial evidence)
- People v. Breverman, 19 Cal.4th 142 (Cal.) (standard on harmless error for omitted instructions; no federal constitutional right to lesser included instruction in noncapital cases)