People v. Ortega

Sep 1, 2026
B344982

Albert Tomas Ortega, Jr., appeals from the superior court‘s order denying his petition for resentencing filed under Penal Code section 1172.6.1 We appointed counsel to represent Ortega on appeal. After reviewing the record, counsel for Ortega filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 that did not identify any arguable issues. After reviewing the contentions in Ortega‘s supplemental brief, we have not identified any either. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Evidence at Trial

We summarized the evidence at trial in our opinion in People v. Ortega (April 17, 2013, B235552) (nonpub. opn.).2

At about 11:30 a.m. on November 22, 2009, Patrick McIntyre was working on his motorcycle on his front porch on the corner of 18th Street and Cabrillo in San Pedro when he heard a gunshot in an alley nearby. About 15 to 20 seconds later, he saw three young men running from the alley. Ortega and his brother Joaquin were chasing a man later identified as 17–year–old Michael Alfaro. As he ran, Alfaro yelled, “No, please, no.” McIntyre was approaching to intervene until he saw Ortega holding a shotgun.

Alfaro ran to the middle of the street and stopped, looking like he was about to collapse. Joaquin stopped, but Ortega followed Alfaro into the street. Alfaro was unarmed and pleaded with Ortega as he approached: “No, please, dog, don‘t shoot me.”

Ortega held the shotgun within six inches of Alfaro and shot him. McIntyre got on his motorcycle and followed Ortega as he ran but lost him in the alley.

Lindsey Harper heard two gunshots and ran to her balcony, where she saw Ortega. Eve Lorentzen and Anthony Dobay were also witnesses to the events and identified Ortega.

A 9-1-1 operator received a call about the shooting at 11:30 a.m. Alfaro was found dead at the corner of 18th Street and Cabrillo, lying in a pool of blood. He died from gunshot wounds to his back and shoulder. Multiple shotgun pellets were recovered, and there was little “spread,” which meant Alfaro was shot at a very close range.

On February 26, 2010 Ortega was charged by information with one count of murder in violation of section 187, subdivision (a), with the special circumstances allegation he killed Alfaro by means of lying in wait within the meaning of section 190.2, subdivision (a)(15). The information further alleged Ortega personally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (d).

The jury found Ortega guilty of first degree murder and found true the special circumstances allegation that he killed Alfaro by lying in wait. The jury also found true the firearm enhancement. The trial court sentenced Ortega to life without the possibility of parole plus 25 years to life for the firearm enhancement. With modifications to the penalty assessments and parole restitution fine, this court affirmed. (People v. Ortega, supra, B235552.)

B. Motion for Resentencing

On August 13, 2024 Ortega filed a form petition for resentencing under former section 1170.95 (now section 1172.6).3 Ortega checked the boxes indicating that he “was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine” and that he “could not now be convicted of 1st or 2nd degree murder.” Ortega requested and was appointed counsel.

The People opposed the motion, and attached the jury instructions, verdict forms and this court‘s 2013 opinion in People v. Ortega, supra, B235552. The People argued that “[t]he jury was not instructed on felony murder, natural and probable consequences or any other theory of culpability that imputed malice to [Ortega] based solely on [his] participation in a crime. The jury was not instructed on aiding and abetting. The only legal theories for the jury to convict [Ortega] of first-degree murder were willful, deliberate and premeditated murder . . . . Further the jury was instructed with CALJIC 8.81.15.1 which required the jury find [Ortega] intentionally killed the victim and the murder was committed by means of lying in wait.”4 The People further argued Ortega “was prosecuted as the actual perpetrator who killed the victim with actual malice.”

Counsel for Ortega filed a reply arguing that the superior court should consider the fact that Ortega was only 21 years old at the time of the murder. Specifically, “[a]t the tender 21-years of age, [Ortega] was still suffering from the affliction of youth: everything involved with still-not-yet-fully-developed executive and cognitive functioning due to his not-yet-fully-developed frontal-lobe brain development precluded the formation of malice. [¶] It would be improper for the court to weigh, resolve, and determine these factual issues and theories at this prima facie stage.” Counsel also argued that the true finding on the firearm enhancement did not establish malice, and further, the People‘s decision to charge only Ortega was not relevant to whether a prima facie showing had been made.

At the prima facie review hearing the superior court denied Ortega‘s petition on the basis that Ortega “was the actual killer and acted with express malice.” The court explained, “Mr. Ortega was the actual killer. There is nobody else that was named in the information or complaint. The jury instructions do not instruct the jury on any form of imputed malice, no aiding and abetting, no felony murder, no natural and probable consequences. The jury made a finding of first degree and the special circumstance of lying in wait. [¶] So from what I could tell, it seems to me that the People have proven it beyond a reasonable doubt.” Ortega‘s counsel then noted that because Ortega was under the age of 26 when he committed the crime, the trial court needed to consider Ortega‘s youth to decide whether he “harbored express malice due to youthfulness.” Counsel noted there was case law requiring consideration of a defendant‘s youth with respect to implied malice and argued the law should be extended to express malice. The superior court rejected this argument, observing that the jury found Ortega committed first degree murder with an intent to kill. Ortega timely appealed.

DISCUSSION

We appointed counsel to represent Ortega in his appeal. After reviewing the record, appointed counsel did not identify any arguable issues. On February 27, 2026 appointed counsel advised Ortega that she was filing a brief stating she was unable to find any arguable issues and that Ortega could personally submit any contentions he believed the court should consider. On the same day this court sent a letter to Ortega‘s counsel ordering her to “send the record of this appeal and a copy of appellant‘s brief to appellant immediately” and advised Ortega that he “may submit a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments that appellant wishes this court to consider.”

On June 10, 2026 Ortega filed a nine-page supplemental brief.5 In his brief, Ortega argued that “since my conviction there are retroactive laws that have passed and these laws have a positive effect on my case,” including Senate Bill No. 483 and section 1172.75,6 under which the “sentencing enhancements that were imposed prior to January 1st 2020 . . . are now legally invalid.” Ortega further argued the superior court had discretion to dismiss his enhancements under section 1385 in furtherance of justice and the court did not “take into consideration the youthful factors at the time of the crime or the path to rehabilitation.”

Section 1172.6 authorizes a person convicted of felony murder, murder or attempted murder under the natural and probable consequences doctrine, or manslaughter to petition the superior court to vacate the conviction and resentence the defendant on any remaining counts if he or she could not now be convicted of murder, attempted murder, or manslaughter because of legislative changes to sections 188 and 189.7 (People v. Emanuel (2025) 17 Cal.5th 867, 880; People v. Arellano (2024) 16 Cal.5th 457, 468-469; People v. Curiel (2023) 15 Cal.5th 433, 449-450.) Because a section 1172.6 hearing is “a continuation of the underlying criminal proceeding” (Gomez v. Superior Court (2024) 100 Cal.App.5th 778, 787), the only issue for the superior court is whether the “petitioner could not presently be convicted of murder or attempted murder.” (§ 1172.6, subd. (a)(3); see People v. Clements (2022) 75 Cal.App.5th 276, 294 [“The question is whether the petitioner committed murder under a still-valid theory, and that is a factual question.“].)

The superior court was correct in concluding that Ortega was not entitled to relief from his conviction for first degree murder under section 1172.6 because he was the actual killer. (See People v. Strong (2022) 13 Cal.5th 698, 710 [relief under section 1172.6 from first degree murder conviction “is unavailable if the defendant was . . . the actual killer“]; People v. Bodely (2023) 95 Cal.App.5th 1193, 1201 [holding with respect to first degree murder conviction that “[a]s the sole and actual killer . . . defendant is ineligible for resentencing under section 1172.6 as a matter of law“].)

Ortega‘s alternative argument that he is entitled to resentencing relief under Senate Bill No. 483 lacks merit. Senate Bill No. 483 (2021-2022 Reg. Sess.) added section 1171.1, which was later renumbered as section 1172.75 (Stats. 2022, ch. 58, § 12). Section 1172.75 provides that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” By its terms, this statute is limited to enhancements imposed under section 667.5, but Ortega was not sentenced for a prior prison term enhancement under section 667.5.

Ortega‘s reliance on section 1385 likewise lacks merit. Section 1385, subdivision (c)(1), provides that “the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.” Ortega asserts that one of the factors the court must consider is whether “[t]he defendant was a juvenile when they committed the current offense or any prior offenses.” (§ 1385, subd. (c)(2)(G).) But Ortega never filed a motion seeking relief under section 1385, and even if had filed such a motion, section 1385 only applies to cases not final as of its effective date (January 1, 2022). (See § 1385, subd. (c)(7) [“[t]his subdivision shall apply to all sentencings occurring after January 1, 2022“]; People v. Alexander (2020) 45 Cal.App.5th 341, 344.) Ortega‘s case was final by the time he filed his petition for resentencing in 2024, and because he was not eligible for relief under section 1172.75, it remained final.

Ortega‘s contention that the superior court erred in denying his petition for resentencing without considering youth-related factors also fails. Youth can be a relevant factor in determining whether a defendant had the mental state necessary to commit felony murder or implied malice murder. (People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004; People v. Pittman (2023) 96 Cal.App.5th 400, 416-418.) But the cases do not support consideration of a defendant‘s youth where the jury found the defendant acted with express malice and had the intent to kill. (See People v. Diaz (2026) 118 Cal.App.5th 545, 560 [“Each of the cases [the defendant] cites, however, concerned whether the defendant acted with reckless indifference to human life, a different mental state than intent to kill/express malice“].) In this case, the jury found Ortega acted with express malice by finding true the lying-in-wait special-circumstance allegations. (People v. Flinner (2020) 10 Cal.5th 686, 748 [lying-in-wait special circumstance requires proof “the killing was intentional, not merely committed with implied malice“].)

DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

MARTINEZ, P. J.

STONE, J.

Notes

1
Further statutory references are to the Penal Code.
2
The summary of the trial testimony is provided as background only.
3
Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)
4
CALJIC No. 8.81.15.1 defines the special circumstance of lying in wait by indicating that each of the following facts must be proved: “1. The defendant intentionally killed the victim; and [¶] 2. The murder was committed by means of lying in wait. [¶] Murder which is immediately preceded by lying [in] wait is a murder committed by means of lying in wait.” “[L]ying in wait” is defined as “waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise [even though the victim is aware of the murderer‘s presence]. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.”
5
If, as here, appellate counsel finds no arguable issues exist in a postconviction appeal from the denial of a section 1172.6 petition, the reviewing court is not required to independently review the record. (People v. Delgadillo, supra, 14 Cal.5th at p. 232.) However, “[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Ibid.)
6
Ortega‘s supplemental brief cited section 1171 as the basis for relief, but he quoted the relevant statutory language found in section 1172.75.
7
Under section 1172.6, subdivision (a), “[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person‘s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner‘s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts” if specified conditions are met.