Filed 9/1/26 P. v. Ortega CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B344982
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA084059)
v.
ALBERT TOMAS ORTEGA,
JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura Laesecke, Judge. Affirmed.
Albert Tomas Ortega, Jr., in pro. per.; and Marilee
Marshall, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________________
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.”
1 Further statutory references are to the Penal Code.
2 The summary of the trial testimony is provided as
background only.
2
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.)
3
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
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
4
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
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
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.”
6
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.
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
7
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
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.
8
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
9
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.
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