Filed 8/25/26 P. v. Ortega CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089007
Plaintiff and Respondent,
(Super. Ct. No. CF02902077)
v.
DANIEL ORTEGA,
OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Fresno County. Arlan L. Harrell,
Judge.
James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and
Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2004, a jury convicted defendant Daniel Ortega (and two co-participants,
Stacey Dyer and Jesus Lopez) of first-degree murder of Donald Hunter and found true
three felony-murder special-circumstance allegations pursuant to Penal Code
section 190.21 that the murder was committed during the commission or attempted
commission of robbery, kidnapping, and carjacking. The jury also convicted each
defendant of robbery (count 2) and kidnapping (count 3) and found true an allegation
Ortega was armed with a firearm during the commission of the murder and robbery.
Following the passage of Senate Bill No. 1437, Ortega filed a petition for
resentencing, asserting he was entitled to resentencing under the new laws. After the
court held an evidentiary hearing, it denied the section 1172.6 petition, finding Ortega
was a major participant who acted with reckless indifference to human life. The court
cited various factors in support of its findings, including Ortega’s apparent leadership
position in the group; that he brought a weapon to the scene; he drove the victim’s truck
to the place where the murder occurred; and he started a fire to hide evidence.
On appeal, Ortega asserts the trial court erred in permitting a witness, who had
already been sentenced and served his time in relation to his participation in the crime, to
refrain from answering questions pursuant to the Fifth Amendment. Relatedly, Ortega
contends his counsel provided ineffective assistance in failing to introduce evidence of
the same witness’s prior statement.
We reject Ortega’s contentions and affirm the order denying the petition.
FACTUAL AND PROCEDURAL HISTORY
Ortega and two codefendants (Stacey Dyer and Jesus Lopez) were charged with
first degree murder (§ 187; count 1) and three special circumstance allegations that they
committed the murders during the commission or attempted commission of robbery
(§ 190.2, subd. (a)(17)(A)), kidnapping (id., subd. (a)(17)(B)), and carjacking (id.,
1 Subsequent statutory references are to the Penal Code unless stated otherwise.
2.
subd. (a)(17)(L)). Each defendant was also charged with second degree robbery (§ 211;
count 2) and kidnapping (§ 207, subd. (a); count 3). It was also alleged that each
defendant was armed with a firearm during the commission of the murder (count 1) and
the robbery (count 2) pursuant to section 12022, subd. (a)(1).
A jury convicted Ortega (and both codefendants) of all the charges and found true
the three felony-murder special-circumstance allegations and the allegations each
defendant was armed with a firearm during the commission of the murder and the
robbery. The court sentenced Ortega to life imprisonment without the possibility of
parole plus an additional year on the murder count; determinate sentences on counts 2
and 3 were ordered stayed pursuant to section 654. Our court affirmed Ortega’s
conviction in an unpublished opinion. (People v. Lopez (Mar. 12, 2007, F045815).)
Petition for Resentencing
In June 2019, Ortega filed a petition for resentencing pursuant to section 1170.95,
2
hereinafter section 1172.6, using a preprinted form. He checked boxes stating a
charging document had been filed against him allowing the prosecution to proceed under
a felony-murder theory or the natural and probable consequences doctrine; at trial, he was
convicted of first or second degree murder under a felony-murder theory or the natural
and probable consequences doctrine; and he could not now be convicted of murder in
light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to
Senate Bill No. 1437). He also checked a box stating, “I request that this court appoint
counsel for me during this re-sentencing process.”
The superior court denied the petition, concluding Ortega failed to make a prima
facie showing he fell within the provisions of section 1172.6. The court held:
2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to
section 1172.6 (Stats. 2022, ch. 58, § 10) with no substantive changes. For purposes of
clarity, we refer to the statute as section 1172.6 throughout the opinion.
3.
“[Ortega] with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested or assisted the actual killer in the commission
of murder in the first degree. [Ortega] is not eligible for resentencing.”
Our court initially affirmed the court’s order. (See People v. Ortega (Nov. 23,
2022, F080017) [nonpub. opn.].) However, the California Supreme Court transferred the
case back with directions for our court to vacate our decision and reconsider the cause in
light of People v. Strong (2022) 13 Cal.5th 698. (See People v. Ortega, supra, F080017.)
Our court then reversed the court’s order and remanded the matter for the trial court to
appoint Ortega counsel, issue an order to show cause, and hold further proceedings as
provided for in section 1172.6. (Ibid.) Following issuance of the remittitur, the trial
court appointed Ortega counsel and set the matter for a case status hearing.
Evidentiary Hearing and Related Proceedings
Castro’s Motion to Quash the Subpoena is Denied
Before the evidentiary hearing, the People filed additional briefing. In their brief,
the People asserted Ortega was ineligible for relief because he was a major participant
who acted with reckless indifference to human life. The People requested that the trial
transcripts from Ortega’s underlying jury trial be admitted as evidence at the evidentiary
hearing.
Counsel for Martin Castro filed a “Motion to Quash Subpoena and for Personal
Appearance of Martin Castro.” He asked the trial court to quash the defense’s subpoena
because “he did not witness the shooting, did not see a gun that night, and does not have
any information as to who, in particular, shot Donald Hunter.” Castro’s counsel alleged
that he informed defense counsel that “the events of March 2002 were particularly
traumatic for Mr. Castro and that he did not want to revisit that evening[.]” He stated
Castro was sentenced to life without the possibility of parole in March of 2003 for the
events occurring that night and he was resentenced after an evidentiary hearing was held
on July 27, 2020, in which it was determined that Castro was “a minor participant in the
events of that evening.” Castro’s counsel stated that Castro reviewed documents
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provided by defense counsel and Castro “maintained that he did not have any information
to give because he did not witness the shooting and did not even see a gun that night.”
Castro’s counsel further asserted Castro was 16 at the time of the murder and he “was
ordered into the back of a van by older members of the same gang and told that he was
going to help strip a truck.” He asserted that Castro “does not recollect leaving the van
during the encounter,” “ever seeing a gun,” or “anyone handing a gun to another person.”
Castro’s counsel stated he provided defense counsel with a complete transcript of
Castro’s trial.
Two police reports and a declaration by Castro were attached to the motion to
quash the subpoena. A police report by Sergeant Patrick Hanson detailed that a
confidential informant reported Castro spoke to her on March 23, 2002,3 after Hunter’s
murder. The informant stated Castro was crying and reported he, Ortega, Ortega’s
girlfriend, Lopez, Ponciano Carillo (“Rumpy”) and two of Lopez’s brothers-in-law were
present the night of the murder. Rumpy hit Hunter first and “[e]veryone joined in and
beat” Hunter. Castro had “hit and kicked the boy.” “The whole time they were beating
up the victim, that he was crying[.]” Rumpy tied up the victim, they put him in the truck,
and “Rumpy drove away in the truck with the girl and the victim”; the rest of them left in
the van. When they got to a vineyard area, “Rumpy made that girl shoot the boy in the
face four times with Rumpy’s gun.”
In his declaration attached to the motion to quash the subpoena, Castro averred
that he “was in the van that night,” but he “did not witness the shooting of Donald Hunter
in March of 2002.” He also stated, “I did not see a gun that night. I do not have any
information as to who, in particular, shot Donald Hunter. I was in the back of the van
that night after being told that we were going to strip a truck. I did not get out of the
3 Subsequent references to dates are to dates in 2002 unless stated otherwise.
5.
van.” Castro further averred that the events were “traumatic” for him and that he served
18 years of his sentence of 25 years to life before his sentence was reduced in 2020.
Castro’s counsel appeared at a hearing on October 20, 2023, to argue the motion.
He asserted he had provided defense counsel with trial transcripts and information, and
he reiterated the points stated in the motion, arguing:
“My client was ordered into a van when he was 16 years old in 2002. He
never left the van. And as a result, he wound up serving 18 years in prison.
He initially had a life sentence, ultimately we were able to get him some
relief. He’s actually in ongoing spiritual counseling twice a week. He sees
a pastor to deal with this. It’s very traumatic for him to come in. He
doesn’t have any evidence to support either side of the case. He didn’t see
anything. We’ve included the declaration in our motion. We’ve reviewed
all the reports [defense counsel] has provided. We reached out to [defense
counsel] yesterday for a conference call that apparently didn’t take place.
We’re happy to provide information. But the simple fact with respect to
what [defense counsel] is seeking we don’t have, and as a result, I would
just say that it’s unnecessarily burdensome, and frankly, almost a little cruel
to have him come back and relive these events.”
Defense counsel asserted the issue was whether Martin Castro was a material
witness. He asserted Castro met with Stephanie G. the day after Hunter’s killing.
According to Stephanie G., Castro “was shaking, he was … pale, and he stated to her we
beat somebody and killed them.” “[H]e detailed what happened at the field where the
killing had taken place,” providing details only a person at the scene could provide.
Defense counsel asserted Castro stated they “were out there taking out the rims. [Castro]
was helping. But we only got three because one of them we could not take it out, and the
burnt truck had one wheel left. And he stated that … Ponce Carillo, who is known as
Rumpy, gave the girl, Stacey Dyer, the shooter, [the] gun and told her to shoot him.”
Defense counsel argued this statement was credible and the defense intended to impeach
Castro with it. Additionally, he asserted Castro’s statement that Carillo gave Dyer the
gun and told her to shoot the victim could be “enough to raise reasonable doubt whether
or not [Ortega] was aiding and abetting with a specific intent to kill or he was [a] major
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participant with a reckless disregard for human life. Those are the main issue[s].” The
court ultimately denied Castro’s motion to quash the subpoena.
Additional Proceedings and Evidence Presented at the Evidentiary Hearing
At the outset of the evidentiary hearing, the court held a closed hearing regarding
Castro’s claim of the Fifth Amendment privilege. Castro’s counsel explained that he
advised Castro to invoke his Fifth Amendment right. He cited Gamble v. United States
(2019) 587 U.S. 678 (Gamble) as the basis for the claim, asserting Gamble “stands for the
proposition that immunity or any jeopardy associated with a state case [does] not apply to
any possible federal offense that he may be facing.” Defense counsel asserted he was not
informed Castro intended to declare the Fifth Amendment privilege and that the argument
raised was “generic.” Castro’s counsel responded that this case involved a kidnapping
and kidnapping is a federal crime. Defense counsel asserted “this is [a] 20-plus year old
case,” and the witness has been convicted and served his time. Defense counsel asserted
that he did not know “how this crime subjects him to federal criminal liability.” In a
subsequent discussion, defense counsel explained:
“The proposed testimony by Castro would be that he identified who
the person, other than [Ortega], known as Rumpy gave [the] gun to Stacey
Dyer and told her to shoot Mr. Hunter. Now of course that was hearsay in
terms of what … anticipated defense witness is going to testify, and that is
Stephanie [G.]. However, if Mr. Castro’s going to invoke [the] Fifth, my
understanding of the case law and [E]vidence [C]ode is I cannot bring
Stephanie [G.’s] statement in. So I’m just going to defer to [the] Court’s
decision regarding the issue. I’m sure [the] Court … also wants to make [a]
decision as to Mr. Castro’s … proposed invocation of [the] Fifth
Amendment privilege.”
Defense counsel stated the defense wanted to call Castro as a witness “hoping to
hear him tell the truth,” that someone else, not Ortega, gave Dyer the gun. Defense
counsel acknowledged that Gamble held there is no double jeopardy towards sovereign
jurisdiction, but he asserted, “This is 22 years later. I don’t know [who] is going to
7.
charge Mr. Castro after he served already 20-some years in prison for [the] same incident.
But theoretically I guess that’s possible.”
The trial court stated that if Castro was going to invoke his Fifth Amendment
privilege, the court would prefer he did so from the witness stand. Accordingly, the
defense called Castro to the stand. Defense counsel asked Castro if he knew Ortega,
Lopez, or Romero. In response to each question, Castro stated, “On the advice of counsel
I want to invoke my Fifth Amendment right.” After defense counsel asked Castro if he
was involved in the carjacking of Hunter’s truck and Castro asserted the same response,
the court noted “that question clearly would implicate Mr. Castro.”
The trial court stated it was going to honor Castro’s invoking of his Fifth
Amendment privilege to questions “along those lines.” Defense counsel responded,
“that’s the meat of the question[s] I want to ask him,” and that there was “really no use to
ask any more questions about the incident” if Castro was going to invoke his Fifth
Amendment privilege. The court found “the area of inquiry that counsel wishes to go
into concerning Mr. Castro’s alleged involvement or any knowledge of the events which
resulted in [Ortega’s] conviction would have [the] potential of incriminating him, at least
based upon the Court’s reading of … Gamble …. So that area of inquiry would be
inappropriate in light of his invocation of his Fifth Amendment right.” The court asked
defense counsel if he had any more questions and defense counsel objected to the court’s
finding. Defense counsel stated, “we object to [the] Court’s granting his invocation of
right based on the fact that this is [a] 27-year-old case,” so there is “no possibility the fed
would come after him after serving 21 years in prison for the same incident.” He also
noted he asked the prosecution to offer Castro use immunity which the prosecution
declined. He urged the court to compel the prosecution to grant Castro use immunity on
the grounds that Castro’s testimony that Ponciano Carrillo gave Dyer the gun was a “crux
core issue of this case[.]” The court stated it was not inclined to compel the prosecution
to grant Castro use immunity.
8.
The defense called Jesus Lopez to testify. The court noted Lopez was informed
that he could have an attorney appointed to represent him and to advise him based on the
questions that may be asked, so the Court would attempt to find him counsel.
Accordingly, the court suspended testimony at that point. Lopez took the stand again
after he was appointed counsel to assist with his testimony. He testified he was at
Roman’s residence on March 21. Ortega, Castro, and Jose David Romero arrived in a
blue van. Lopez denied seeing Ortega with a firearm when he came out of the “blue
truck [sic]” or that he saw Ortega pass a firearm to Stacey Dyer, who was also present at
the residence. Lopez denied seeing anyone with a firearm that night. Lopez testified that
there were a lot of people at the residence and parts were being taken from a truck.
Defense counsel then asked Lopez if they drove to a field with the pickup truck and
which individuals arrived in the blue van. Lopez stated he “would like to plead the
Fifth.” Lopez’s appointed counsel stated Lopez had taken “substantial steps to perfect his
right to file for resentencing,” so he has “a Fifth Amendment privilege to invoke because
his testimony into the particulars of the case may be relevant to his resentencing
petition.” However, the court stated because Lopez had already been adjudicated in this
case and the issue was whether his testimony would impact resentencing, it did not see
that as the same issue as being subject to new criminal liability. Accordingly, the court
ordered Lopez to answer the question. Lopez then testified he went to a field with Ortega
after meeting him at Roman’s residence. Lopez saw a few different people, including
Ortega, taking the wheels off the truck. The pickup truck had a lid on it that was closed
the whole time. Lopez denied seeing anyone fire a firearm and he stated he was in the
blue van when he heard gunshots “quite a distance away.” He could not see out of the
van.
Jose David Romero also testified on behalf of the defense. Romero testified he
was tried with Martin Castro for the carjacking of Hunter’s truck. Romero spent 18 years
in prison. On the night of March 22, Romero and Castro rode in a light blue van to a
9.
house where Hunter’s truck was parked. Romero was 16 at the time. When asked if
Ortega was in the blue van, Romero responded, “Maybe. I believe so. I don’t remember
though.” Romero denied knowing Ponciano Carillo or “Rumpy.” Romero recalled there
being several people at the house when they arrived, including Lopez. Romero denied
seeing anyone taking a stereo out of the pickup truck or that he was involved in taking
out the stereo. Someone told Romero to get back in the van, and they drove to the
outskirts of Fresno. Romero was instructed to go to the corner about 100 yards away
from where they parked to keep watch. He denied seeing Ortega when he was in the van
and stated there were no windows in the van. Romero heard a whistle and was told to
come back. He was “ordered to jump immediately back into the van,” and he heard
several shots before they left. Romero denied seeing a firearm inside the van or that he
saw “what [Ortega] did.” He also denied hearing anyone talk about shooting or killing
someone.
Ponciano Carillo also testified on behalf of the defense. He testified he did not
recognize Ortega. He stated he did not know if he knew anyone named Martin Castro or
Jose David Romero. He also testified he did not know that a man named Donald Hunter
was killed in 2002 or that Hunter’s pickup truck was burned. Carillo testified he did not
recall being involved in the theft of Hunter’s pickup truck, but he stated he knew he “was
not involved in any kind of crimes like that.” When asked whether he knew Stacey Dyer
and if he gave her a firearm on March 22, Carillo responded that he did not remember.
However, he later testified “I did not give nobody nothing[.]” When asked if he told
Dyer to shoot Hunter, Carillo responded: “I do not remember any of this. I don’t recall
any of it whatsoever, sir. Sorry about that.” The court then asked Carillo if he ever told
Dyer to shoot anyone. Carillo responded, “No, I don’t recall at all sir. I don’t believe I
have done anything like that, sir.” Then, on cross-examination, the prosecutor asked, “So
your testimony today is that you never told Stacey Dyer to kill somebody?” Carillo
responded, “No, I have not.”
10.
Detective Mark Chapman, the lead detective in the case, testified that, in an
interview in 2002, Romero reported arriving in a light blue van to a house on North
Street. He identified a few people who were in the van with him, though Chapman could
not recall if Romero mentioned Ponciano Carrillo, a person of interest during the
investigation who also went by “Rumpy.” Romero did not report participating in stealing
the truck’s rims. He stated he was instructed to be a lookout when they arrived at the
murder and truck burning scene. After reviewing a police report, Chapman testified that
Romero stated Ortega, his Uncle Chuey (referring to Lopez), and a female who appeared
to be Caucasian were present at the murder scene. Detective Chapman testified he
arrested Ortega and Dyer on March 28. Chapman also explained that Ortega and Dyer
were placed in holding cells next to one another and Ortega was heard educating Dyer on
the justice system and telling her, “they don’t have anything, they’re going to say they
have evidence, they don’t have anything, things of that nature.” Ortega was
“threatening” to Dyer and they said they loved each other.
Ortega testified on his own behalf. He testified he knew Carillo for a year or two
from “casually meeting in the streets.” Ortega was in Dinuba around midnight on March
21 with David Romero, Martin Castro, Rumpy, and Gabriel Rojas. They were stealing
car stereos and parts. Ortega received a couple of pages on his pager. The second page
was from Dyer. Ortega called her and a male answered the phone; the call dropped. The
group then went to Lopez’s mother’s house to drop off Castro and Romero. Castro told
Ortega that a girl Ortega knew—referring to Dyer—wanted him to come to an address.
Ortega asked Romero and Castro to come with him because he did not know the address
or how to get there. The same group got back in the blue van and went to the address.
When they arrived, Ortega saw a pickup truck. Ortega asked Dyer who the truck
belonged to and she said, “it was some guy she knew.” “They said they had stole it from
somebody, jacked somebody for it.” When Ortega asked where the guy was, Dyer said
he was “in the back.” Ortega was not sure what Dyer meant; he assumed she meant the
11.
back of the house because people had been coming from the back of the house when he
arrived. A woman came out and started yelling that she was going to call the police.
Ortega, Dyer, and Rumpy jumped in the truck. Ortega did not turn the lights on because
he “didn’t want the guy, thinking he was in the back, to run out, so [he] immediately
backed up and turned[.]” Lopez, Castro, Romero and Rojas followed Ortega in a blue
van. They went to a field because the truck ran out of gas. Romero was down the street
acting as a lookout and Lopez was in the back of the van and he did not get out. Ortega,
Castro, Dyer, and Rumpy were outside. They did drugs and Ortega and Castro took the
rims off the truck. Ortega heard Dyer ask the group, “What about the guy?” Ortega still
thought “the guy” was back at the house. He told Dyer, “who cares about him. Call him
a cab or something.” Dyer said, “what are you talking about? He’s in the back … of the
truck.” Ortega “looked and he was there,” “laying down.” He was not tied up; he looked
like he was asleep. At that point, Ortega “went back to the right side tires to get the last
one off, but then [he] stopped because he started thinking …, I’m driving around with a
guy in the truck. So [he] started wiping the steering wheel down, went in the passenger
side, started wiping everything down with a rag.” He feared being “caught” or “arrested
for all of this[.]”
Ortega thought he would “get these rims and go” but, as he was wiping down the
inside of the truck, he heard three gunshots. Ortega ducked and looked up, but the back
window was covered “with the top being up.” Ortega got out of the truck. He saw Dyer
with a gun and Hunter. Rumpy was standing next to Dyer and was taking the gun from
her saying, “I didn’t think she was going to do it.” Ortega was “cussing,” saying “what
the fuck?” He testified killing Hunter “was not part of no plan. There was no plan.”
They all got back in the van and it was quiet. No one said anything. Ortega talked to
Dyer about how it got to that point and why she did it. Dyer “said she wanted to know
what it felt like,” meaning she wanted to know how it felt to kill someone. Ortega
“figured who took the gun from her gave her the gun.” Ortega explained, “Rumpy gave
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her the gun. There was no one else standing there.” Ortega knew Rumpy to carry a
firearm and had seen him with one earlier that night in the van. Ortega denied giving
Dyer the gun. He testified he “didn’t have no gun. I’m out stealing car parts. You don’t
need a gun to steal car parts. I was a coward kid running around the streets waiting for
people to go to sleep to break into cars.”
Ortega admitted he started the fire with the rag he was wiping everything with and
a lighter. He stated he did it because did not want to be a part of it and “would have
covered whatever [he] could.”
Ortega testified that nobody knew how Hunter got in the back of the truck. Dyer
told him Hunter let her drive when they met at the store earlier and, when Hunter got out
to get in the passenger side, Dyer took off and made him chase the truck. She told him
she would let him back in, only if he got in the back of the truck. So, Hunter got in the
back. Hunter would have had to lift the lid to get in the back.
Detective Chapman testified he arrested Ortega and Dyer on March 28.
Prosecution’s Evidence at Trial
As discussed, the People submitted the trial transcript as evidence to be considered
at the evidentiary hearing. The following is summary of relevant evidence presented at
the trial.
Hunter and Ortega’s Whereabouts Before the Crimes Occurred
Carlos R. testified Donald Hunter was at his house the evening of March 21.
Hunter left at around 1:00 a.m. The next morning Hunter’s mom called Carlos and
Carlos was surprised that Hunter had not returned home.
Paul B. testified he was friends with Hunter and had known him for most of his
life. He was familiar with Hunter’s truck and recalled seeing it a little after 1:00 a.m. on
March 22. Paul saw Hunter in the truck; the passenger window was half down. Paul
waved to Hunter and flashed his high beams as a gesture to say, “see you later,” and then
Paul continued on his way.
13.
Deputy Sheriff Victor Alonzo pulled over a blue van for a broken taillight on
March 21 at 4:47 p.m. Ortega was driving the van and Dyer was a passenger.4
Events Leading Up to and Including Hunter’s Murder
Alfred Cruz testified he and Ramiro Roman drove around in Roman’s sister’s
green car around 5:00 p.m. on March 21, before returning to Roman’s house on North
Street. At some point, Roman left and told Cruz that somebody was outside. Cruz went
outside and saw Jesus Lopez and a female, who Cruz identified at trial as Dyer, sitting on
the back cover of a nice truck.5 Cruz asked Lopez where he got the truck and Lopez said
he “just jacked it,” meaning he took it from someone. Lopez asked to use Cruz’s phone
to call Martin Castro, so Cruz went inside to get it. Lopez told Castro to “[c]ome over
here to [Roman]’s house. We’re over here waiting.” After he got off the phone, Lopez
told Cruz, “the dude tried to rape home girl, so they beat him up and threw him in the
back of the truck.” Cruz was surprised to hear there was a person in the back of the
truck. Lopez told Cruz “to go talk to him,” referring to Hunter, the male in the truck bed.
At Lopez’s direction, Cruz told Hunter that he was going to call the police. The male
said, “why?” Cruz heard Hunter “[m]oaning,” “trying to gag for his breath.” At some
point, Cruz told Hunter that he was going to kill him because Hunter “didn’t want to be
quiet.”
Roman returned with Cruz’s sister. Roman got in the truck and started playing
with the switches that raised the car higher and lower. Cruz saw that Roman had a
.357 revolver. Lopez said he wanted to move the truck to the side of the house because it
was “hot,” so Roman moved it to a vacant lot. Roman said he was going to take out the
truck’s stereo and keep it. Lopez said he did not want Roman to do that because “he
4 Alonzo also contacted Ortega in the same van the next day, March 22, at
5:53 p.m. Gabriel Rojas was driving and Ortega was a passenger.
5 Cruz testified Lopez arrived around 2:00 a.m. and did methamphetamine at
around 3:00 a.m., which hyped Lopez up and made him mad.
14.
wanted everything in there cause his homey was going to come.” Nevertheless, Roman
took out the stereo and Cruz took out an amplifier and they took them to Roman’s room.
Lopez told Roman “to hold everything,” meaning to hold onto the stereo system. Cruz
brought his phone and a shotgun out to Lopez.
Lopez directed Cruz to ask Hunter for his wallet. So, Cruz walked to the back of
the truck and said, “[t]hrow your wallet out.” Hunter threw out his wallet and Cruz
opened it. Lopez took the wallet from Cruz and took out Hunter’s identification, cards,
and a receipt. Roman threw the items in a metal barrel that was in the vacant lot.6 Lopez
asked Hunter where his money was and to throw it out. Cruz testified Lopez told Hunter
that he was going to kill him. Lopez told Cruz they were going to tie up Hunter and
throw him in a field.
Cruz testified that a light blue van arrived and four people got out including
Ortega and Martin Castro. Ortega had a black semiautomatic firearm that Cruz saw
Ortega hand to Dyer. Ortega was laughing and said that they “were going to kill this
mother fucker.” Dyer also said, “I’m going to kill him.” Jose David Romero told Cruz
that he was going to take the rims off the truck, and he asked Cruz to come with him.
Cruz told Romero that he did not want to go.
Ortega got in the driver’s seat of the pickup truck and Dyer got in the middle seat.
An individual referred to as “Rumpy” also got in the truck and they “took off.”7 Lopez
drove off in the van with Jose David Romero and another person inside. Cruz spoke to
Lopez on the phone the next day. Lopez told Cruz that “[t]he dude [k]new too much,”
and “they had to do him.” Cruz understood Lopez to mean they had killed Hunter. That
6 Cruz testified that Roman wanted to burn the items the next day, so Cruz
retrieved them from the barrel.
7 Cruz testified he “kept [Rumpy] out of it” because Rumpy said, “whoever
snitches on me, he’s going to kill them and their family.”
15.
night, Cruz saw the story on the news at Roman’s house. Lopez and Martin Castro were
present and were laughing.
Roman testified Cruz was at his house on March 21. At around 11:30 p.m. or 12
a.m., Roman left to pick up his girlfriend Delores, Cruz’s sister. As Roman was leaving,
he saw Dyer. Dyer told Roman that Lopez needed him out front. Roman told Cruz to go
outside and see what Lopez wanted. Roman noticed a grey Chevrolet truck out front that
was lowered in the back and had rims.
Roman asked Lopez where he got the truck and Lopez said he “jacked it.” Roman
asked Lopez what he did with the owner of the truck and he responded, “He’s in the
back.” Roman told Lopez he was leaving but he would be back.
When Roman returned with Delores, he saw Lopez and Dyer near the bed of the
truck. Roman told them they had to leave because his family was in the house and they
could hear everything. Lopez said they were waiting for someone and then they would
leave. Roman moved the truck to a vacant lot west of his house. Lopez, Dyer, and Cruz
met him there and Roman told Lopez he was “going to get the radio.” Lopez did not
want Roman to take it because “he didn’t want to mess it up.” Roman retrieved tools and
gloves from his house. He told Lopez again that he was going to take the stereo. Lopez
told Roman not to mess anything up and that he would be back for the speakers. Roman
took out the stereo and put it in his room.
At some point, Lopez gave Roman a wallet. Cruz told Roman that Lopez “opened
up the bed,” Cruz “hit him,” and Lopez got the wallet. Roman put some paper from the
wallet in a barrel and burned it the following day. He gave the wallet back to Lopez.
About twenty to thirty minutes later, Ortega, Martin Castro, Jose David Romero, and
another male arrived in a blue van that parked in the vacant lot.
Ortega, Dyer, and the other male got in the truck. Ortega was in the driver’s seat,
Dyer was in the middle, and the other male was in the passenger seat. During an
interview with the prosecutor and Detective Chapman in August 2002, Roman stated the
16.
other male looked like a guy named “Rumpy.” Ortega said, “let’s go.” About five
minutes after the van arrived, the van and pickup truck left. Roman testified that at some
point that evening, Cruz brought out a shotgun from Roman’s closet. Shortly after the
van and pickup truck left, Roman went to bed. He testified Cruz put the shotgun in the
tool shed to hide it “[b]ecause [Cruz] hit the guy with it” when “they opened up the bed.”
Lopez called Roman at 6:00 a.m. the next day. Roman asked Lopez “what happened to
that guy,” and Lopez responded that he “ate dirt.” Roman understood that to mean the
guy died.
Roman testified he was present on March 27 when the police executed a search
warrant at his house. He entered a guilty plea to a felony charge of robbery and receiving
stolen property on February 6, 2023, and admitted that someone was armed with a
firearm during that period. His sentencing was continued to see if he fulfilled the terms
of his contract.
Investigation Into the Crimes
At approximately 5:53 a.m. on March 22, Deputy Sheriff David Cunha was
dispatched after receiving a call regarding possible gunshots. As Cunha approached the
location, he saw smoke rising into the air. A pickup truck at the scene was “engulfed in
flames.” Firefighters arrived and extinguished the fire. When they hit the bed of the
truck with water, the cover on it collapsed. Hunter’s burned body was recovered from
the rear of the pickup. Hunter was determined to have suffered three gunshot wounds to
his head that caused his death. Hunter’s body was burned completely, except for his feet.
Sergeant Patrick Hanson arrived at the scene a little after 7:30 a.m. and he was designated
the chief crime scene investigator. He discovered a small scissor jack located near the
rear portion of the truck.
Arson investigator Rusty Souza arrived at the scene at 7:29 a.m. on March 22. He
noticed a “burn pattern imprinted on the doors …. that is conducted when a flammable
liquid is utilized to pour on a vehicle.” Souza’s investigation revealed “the stereo was
17.
missing, there was no evidence of speakers, the tires had been removed.” He explained
the situation was “very similar to many vehicle fires that … we call strip and burns that
are stolen, taken out in the country, stripped of their personal property, and then set on
fire to [d]estroy any evidence, fingerprints, etc., that may be left at the scene.” He
concluded the fire was caused by an accelerant, such as a flammable liquid, that was used
to facilitate the spread of the fire.
Hunter’s truck was transported to a laboratory and secured and processed. A
.38 shell casing from a semi-automatic handgun was recovered from the rear of the
pickup truck at 5:05 a.m. on March 26.
Hunter’s mother, Humiyo Wright, testified she last saw Hunter between 6:00 and
7:00 p.m. on March 21. He was supposed to be home by midnight during the week.
When Hunter was not home before 7:00 a.m., Wright began calling his friends and law
enforcement.
A business owner, Beu V., found Hunter’s phone about ten feet away from the
sidewalk at his automobile shop. A female called the telephone and said it was hers, so
Beu told her the address to pick it up. Detectives Chapman and Toscano came to the
shop and retrieved the phone; Beu showed them where he found it in the parking lot.
Detective Mark Chapman was the primary investigator in the case. He received
cellular phone activity records for Hunter’s phone from the phone company and issued
search warrants for locations based on cellular phone activity occurring in those areas.
The police detained Alfred Cruz, Ramiro Roman, and Jesus Lopez on March 26.
In an interview the next day, Cruz reported that property from Hunter’s truck was in the
basement of the North Street house. Detective Chapman dispatched Detective Jose
Salinas to that location. When Salinas arrived, the owner of the residence consented to a
search of the residence. A loaded .357 handgun, a loaded Remington .22 caliber
handgun, a .38 caliber bullet, and two .357 bullets were recovered from a closet in a
detached room that belonged to Ramiro Roman. A Crossman air gun was recovered from
18.
underneath the bed and a metal glove was found in a cabinet in that same room. A
.357 bullet casing was in a trash can in the backyard and a .22 caliber casing and
.38 caliber shell were found on the ground in the backyard. Salinas directed a tech to
photograph the basement and the items inside of it. He removed two pillowcases with
items inside from the basement. The pillowcases contained a high performance, CD car
audio system and three speaker boxes with “Jenson” written on them. The serial number
on the stereo and subwoofers recovered from Roman’s basement matched the serial
number on boxes for these items obtained from Hunter’s mother.
Deputy Sheriff Patrick Oh assisted Detective Chapman in the execution of a
search warrant at Martin Castro and Lopez’s home on Grant Street on March 26.
Cartridge casings, four rounds of .380 caliber and four rounds of .40 caliber, were
recovered from a yellow van on the property. Sergeant Patrick Hanson and Detective
Chapman interviewed Lopez on March 26.
Criminalist Michael Giberson compared four burnt cartridge casings taken from
Hunter’s truck bed to four unfired cartridge casings found in the van parked at Castro and
Lopez’s residence. He testified there were microscopic areas of comparison that matched
between the burnt cartridge casings and the unfired ones. Giberson opined that the same
bunter was used to make the bunter marks in three of the burnt casings as that used to
make the bunter marks in three of the unfired casings. The fourth burnt cartridge case
had the same bunter marks as another unfired cartridge casing taken from the same van.
Giberson also examined two bullets recovered from Hunter’s body. After comparing the
two bullets, Giberson concluded they had been fired from the same firearm.
Ortega was taken into custody on March 29. While in custody and after his
interview, he was placed in a holding cell next to Dyer. Their conversation was recorded
and Ortega said, “You didn’t do it.” Dyer responded, “No, I didn’t.” Dyer said, “I don’t
know no one.” And Ortega asked her what she was going to say. Dyer said, “They were
19.
showing me pictures of … Rumpy.” And she stated, “I didn’t recognize anybody,
though.” Ortega responded, “No, you do not.” And Dyer said, “No, I didn’t.”
Court Denies Ortega’s Petition for Resentencing
After the close of evidence at the evidentiary hearing, defense counsel argued that
Ortega was not convicted of carjacking because the crime was committed before Ortega
arrived at Roman’s house. He argued that Ortega knew “Rumpy” had a gun, but he did
not know “this would end up in this way,” and he did not expect Dyer to kill anyone. He
also asserted the fact that Ortega set the fire did not establish reckless disregard for
human life because Hunter had already died. Counsel asserted it was clear Ortega was
not the killer and he did not provide the firearm. The prosecutor asked the court to rely
on Cruz and Roman’s trial testimony and asserted “everything kind of changed when
[Ortega] showed up.” Ortega drove Hunter to “his ultimate resting place,” provided the
gun to Dyer, and “he knew it was going to happen and he assisted in covering it up and
continued to cover it up.”
The court noted it reviewed the transcripts of the trial and the evidence presented
at the evidentiary hearing. It concluded, “acting as an independent fact finder, based
upon the evidence as presented, … that the People … met their burden of proof beyond a
reasonable doubt that [Ortega] was a major participant in the crimes and in the murder
and that he acted with indifference to the life of Mr. Hunter.” Accordingly, the court
denied Ortega’s 1172.6 petition, finding he “continues to be guilty of murder despite the
modifications to the California law of felony murder.” The court detailed the factors it
considered in reaching its conclusion, including the role Ortega played in the planning of
the criminal enterprise that led to death. The court explained:
“In this instance the vehicle had already been taken from Mr. Hunter
by Miss Dyer and another. [Ortega] arrived and joined Miss Dyer and …
Mr. Lopez. And when … [Ortega] arrived, he was armed. He then drove
Mr. Hunter’s truck away with Miss Dyer and another while Mr. Lopez
followed driving the van that [Ortega] had initially arrived to the location
20.
in. [Ortega] testified that Dyer said that the owner of the truck was in the
back, and he testified he understood her to mean that Mr. Hunter was in the
rear of Ramiro Roman’s home. That testimony is completely incredible in
light of what [Ortega] came into, who he was dealing with and what, how
these individuals interacted as evidenced by the entire testimony presented
at trial.
“The Court notes that the testimony included that when [Ortega]
arrived and joined the others, he arrived with the firearm. He actually
drove the truck from that scene to where Mr. Hunter was fatally shot with
the gun that fit the description given by the witnesses at trial. There were
casings located at the scene which showed it was a 38 caliber
semiautomatic. [Ortega] was described to have arrived at the scene with a
semiautomatic small handgun. It is clear that [Ortega] was in a position of
leadership among this group. That’s evident, particularly evident by some
of the information that was presented at trial of how he acted during these
crimes and that everyone was waiting for him to arrive. And once he
arrived, he drove the truck away after the incident. In communications with
he and Miss Dyer he was talking about how he was controlling other
witnesses who were in the Fresno County Jail who had been threatened and
had been beaten. He was the one who was going to make sure that no one
spoke about what happened that evening. ¶ So this factor weighs against
[Ortega].
“Second, what role did [Ortega] have in supplying the lethal
weapon? ¶ … [T]he evidence is that [Ortega] handed the weapon to Miss
Dyer, contrary to [his] rather self-serving testimony at the evidentiary
hearing. ¶ So that factor weighs against [him].
“Third, what awareness did [Ortega] have of the particular dangers
posed by the nature of the crimes, the weapons used, and past experience or
conduct with the other participants.
“[Ortega] substantially increased the risk to Mr. Hunter when he
arrived with the firearm. He was with individuals that he knew very well.
He was the leader of this group by all indications from the evidence
presented at trial. He drove Mr. Hunter to the area where he was ultimately
killed.”
“Was [Ortega] present at the scene of the killing in a position to
facilitate or prevent the actual murder and did he, and did his own actions
or inactions play a role in the death. ¶ Many of these factors overlap
because, based on the same evidence [Ortega] brought the firearm, he’s the
one who brought the lethal force to this crime spree. By his own account at
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the evidentiary hearing and by his testimony, and by the testimony at trial,
he was present at the scene. Now although he claimed that Miss Dyer did
the killing and he didn’t know anything about it, actually he claimed that …
Rumpy brought the firearm. That’s contrary to the evidence presented at
trial. He was in a position to prevent the murder of Mr. Hunter, but he
didn’t do so. In fact, he directed the murder. He is attributed with making
the statement, quote, we are going to kill this M.F., unquote…. He was in a
position to prevent the killing, but did not do so. In fact, he directed it.
“What did [Ortega] do after the fatal force was used? He made that
pretty clear at his evidentiary hearing testimony. He started the fire. He
tried to hide the evidence, burn the traces of what he and others had done to
Mr. Hunter and to his vehicle. Then he got in the van and the group drove
off with three rims from Mr. Hunter’s vehicle.
“So, in this Court’s mind, the evidence shows beyond a reasonable
doubt that [Ortega] was a major participant in this incident.
“The second issue is whether [Ortega] acted with reckless
indifference to human life. And again, under the case of [People v. Clark],
the factors are whether he had knowledge of the weapons and the use, and
that a weapon was used during the offense. He had knowledge of the
weapons and he brought the weapon. That factor weighs against [Ortega].
“Whether he was present at the crime scene and had an opportunity
to restrain the crime or to aid the victim, again, these factors overlap
because it’s the same evidence. He was physically present by his own
account and by the account of others who testified at the trial. According to
[Ortega], Dyer asked, quote, what are we going to do about him referring,
to Mr. Hunter. And according to [Ortega] at the evidentiary hearing, he
made a remark about his not caring about Mr. Hunter and that someone
should call him a cab. Only then [Ortega] said did he learn that Mr. Hunter
was in the bed of the truck. That’s not credible. The Court finds that
incredible, unbelievable. I do not believe that testimony in light of all the
other testimony that was presented at the trial and the nature of the
relationship between M[s]. Dyer, [Ortega], Mr. Lopez and the others who
were involved. That’s not believable.
“[Ortega] testified that he looked up to see Miss Dyer with the gun.
Testimony was [a]t the trial that [Ortega] gave, handed Miss Dyer the gun.
And as stated earlier, he directed the fatal killing by announcing we’re
going to kill the M.F. . . .
“The duration of the felonies.
22.
“This lasted nearly four hours between the time Mr. Hunter was last
seen driving his own truck on his way home from his friend’s house until
his truck was found ablaze, him having been shot several times and placed
in the bed of the truck. That’s based upon the testimony particularly of the
coroner at the scene.
“[Ortega’s] knowledge of the likelihood of killing.
“[Ortega] was the leader. [Ortega] directed this killing by telling
everyone they were going to kill Mr. Hunter.
“Court is to consider efforts to minimize the risk of violence.
[Ortega] did nothing to minimize the risk of violence. He brought the
firearm, he directed the shooting, he lit the vehicle on fire.”
Based on these factors, the trial court found beyond a reasonable doubt that Ortega
was a major participant who acted with reckless indifference to human life, and that he is
still guilty of murder under current law.
DISCUSSION
Ortega now challenges the trial court’s findings at the evidentiary hearing, alleges
various errors, and contends he is entitled to a remand. As discussed herein, we reject his
contentions and affirm the court’s order.
I. Senate Bill No. 1437 and Senate Bill No. 775
On September 30, 2018, the Governor signed Senate Bill No. 1437 (SB 1437),
which became effective on January 1, 2019. SB 1437 “amend[ed] the felony murder rule
and the natural and probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amended
section 188, which defines malice, and section 189, which defines the degrees of murder
to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2–3.)
Accordingly, section 188 now provides that “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a crime shall act with
23.
malice aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, former section 189 previously stated, “All murder … which is
committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under
Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict death, is murder of the first degree.” SB 1437 amended
section 189, in part, by adding subdivision (e), which provides:
“A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
The legislation also added section 1172.6 (former § 1170.95), which provides a
procedure by which defendants whose cases are final can seek retroactive relief if the
changes in the law would affect their previously sustained convictions. (Stats. 2018,
ch. 1015, § 4.) Initially, section 1172.6 (former § 1170.95) permitted those “convicted of
felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts[.]” (Stats. 2018,
ch. 1015, § 4, subd. (a).)
24.
In Senate Bill No. 775 (2021–2022 Reg. Sess.) (SB 775), effective January 1,
2022, the Legislature amended the language of this section to expand the scope of the
petitioning procedure. (Stats. 2021, ch. 551, § 2.) Under the amended statute, if the
petitioner has made a prima facie case for relief, the court “shall issue an order to show
cause.” (§ 1172.6, subd. (c).) Within 60 days after the order to show cause has issued,
the trial court must then hold a hearing “to determine whether to vacate the murder,
attempted murder, or manslaughter conviction and to recall the sentence and resentence
the petitioner on any remaining counts in the same manner as if the petitioner had not
previously been sentenced, provided that the new sentence, if any, is not greater than the
initial sentence.” (§ 1172.6, subd. (d)(1).)
“At the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted
murder under California law as amended by the changes to Section 188 or
189 made effective January 1, 2019. The admission of evidence in the
hearing shall be governed by the Evidence Code, except that the court may
consider evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony, stipulated
evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion.
However, hearsay evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of Section 872 shall be excluded from the
hearing as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule. The prosecutor and the petitioner may also
offer new or additional evidence to meet their respective burdens. A
finding that there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing. If the
prosecution fails to sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be vacated
and the petitioner shall be resentenced on the remaining charges.”
(§ 1172.6, subd. (d)(3).)
25.
II. The Court Did Not Err in Permitting Castro to Assert the Privilege Against
Self-Incrimination
Ortega first argues the court prejudicially erred in permitting Martin Castro to
refuse to answer questions pursuant to the Fifth Amendment at the evidentiary hearing
though Castro had already been convicted and sentenced for his involvement in the
crime. Ortega argues the error violated his Sixth Amendment right to compulsory
process and his constitutional right to due process. For the reasons that follow, we
disagree.
A. Standard of Review
The California Supreme Court has held that, in reviewing a court’s ruling on a
witness’s assertion of the privilege against self-incrimination, “[w]e review deferentially
the trial court’s resolution of any factual disputes.” (People v. Seijas (2005) 36 Cal.4th
291, 304 (Seijas).) And “[w]hen, as here, the relevant facts are undisputed, an appellate
court should review independently the trial court’s ruling permitting the witness to assert
the privilege.” (Ibid.)
B. Applicable Law
1. Right to Compulsory Process
“The right of an accused to compel witnesses to come into court and give evidence
in the accused’s defense is a fundamental one.” (People v. Jacinto (2010) 49 Cal.4th
263, 268 (Jacinto).) “ ‘The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a defense, the right to
present the defendant’s version of the facts as well as the prosecution’s to the jury so it
may decide where the truth lies. Just as an accused has the right to confront the
prosecution's witnesses for the purpose of challenging their testimony, he has the right to
present his own witnesses to establish a defense. This right is a fundamental element of
due process of law.’ ” (Id. at p. 269, quoting Washington v. Texas (1967) 388 U.S. 14,
19.) Article I, section 15 of the California Constitution similarly guarantees as a matter
26.
of state constitutional law that “[t]he defendant in a criminal cause has the right ... to
compel attendance of witnesses in the defendant’s behalf[.]”
“To prevail on a claim of prosecutorial violation of the right to compulsory
process, a defendant must establish three elements. ‘ “ First, he must demonstrate
prosecutorial misconduct, i.e., conduct that was ‘entirely unnecessary to the proper
performance of the prosecutor’s duties and was of such a nature as to transform a defense
witness willing to testify into one unwilling to testify.’ ” [Citation.] Second, he must
establish the prosecutor’s misconduct was a substantial cause in depriving the defendant
of the witness’s testimony. [Citation.] The defendant, however, “is not required to
prove that the conduct under challenge was the ‘direct or exclusive’ cause. [Citations.]
Rather, he need only show that the conduct was a substantial cause. [Citations.] The
misconduct in question may be deemed a substantial cause when, for example, it carries
significant coercive force [citation] and is soon followed by the witness’s refusal to
testify.” [Citation.] Finally, the defendant must show the testimony he was unable to
present was material to his defense.’ ” (Jacinto, supra, 49 Cal.4th at pp. 269–270.)
2. Privilege Against Self-Incrimination
“It is a bedrock principle of American (and California) law, embedded in various
state and federal constitutional and statutory provisions, that witnesses may not be
compelled to incriminate themselves. In an oft-cited case, the high court stated that this
privilege ‘must be accorded liberal construction in favor of the right it was intended
to secure.’ [Citation.] A witness may assert the privilege who has ‘reasonable cause to
apprehend danger from a direct answer.’ [Citations] However, ‘The witness is not
exonerated from answering merely because he declares that in doing so he would
incriminate himself—his say-so does not of itself establish the hazard of
incrimination.’ [Citation] The court may require the witness ‘to answer if “it clearly
appears to the court that he is mistaken.” ’ [Citation] ‘To sustain the privilege, it need
only be evident from the implications of the question, in the setting in which it is asked,
27.
that a responsive answer to the question or an explanation of why it cannot be answered
might be dangerous because injurious disclosure could result.’ ” (Seijas, supra, 36
Cal.4th at p. 304, quoting Hoffman v. United States (1951) 341 U.S. 479, 486–487
(Hoffman); People v. Trujeque (2015) 61 Cal.4th 227, 267 (Trujeque).) “To deny an
assertion of the privilege, ‘the judge must be “‘perfectly clear, from a careful
consideration of all the circumstances in the case, that the witness is mistaken, and that
the answer[s] cannot possibly have such tendency’ to incriminate.” ’ ” (Seijas, supra, 36
Cal.4th at pp. 304–305, quoting Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting
Hoffman, supra, 341 U.S. at p. 488; Trujeque, supra, 61 Cal.4th at p. 267.)
“California’s Evidence Code states the test broadly in favor of the privilege:
‘Whenever the proffered evidence is claimed to be privileged under Section 940 [the
privilege against self-incrimination], the person claiming the privilege has the burden of
showing that the proffered evidence might tend to incriminate him; and the proffered
evidence is inadmissible unless it clearly appears to the court that the proffered
evidence cannot possibly have a tendency to incriminate the person claiming the
privilege.’ (Evid. Code, § 404, italics added.) We have said that this section incorporates
the standard of Hoffman v. United States, supra, 341 U.S. 479.” (Seijas, supra,
36 Cal.4th at p. 305.)
C. Analysis
Ortega contends his Sixth Amendment right to compulsory process for obtaining
witnesses in his favor and his due process rights were violated by the court permitting
Castro to refuse to answer questions by claiming the privilege against self-incrimination.
Relatedly, he asserts there was no reasonable probability Castro would incriminate
himself. The People respond that there was no prosecutorial misconduct that interfered
with Ortega’s right to compulsory process and he cannot show a reasonable probability
that Castro’s testimony, if given, would have been both material and favorable. The
People further assert that the court properly upheld Castro’s right against self-
28.
incrimination because his testimony potentially subjected him to federal prosecution
under federal kidnapping law. The People note that, though Hunter was not transported
across state lines, federal kidnapping law applies where the offender uses “any means,
facility, or instrumentality of interstate … commerce in committing or in furtherance of
the commission of the offense,” such as a car or phone, even intrastate, citing 18 U.S.C.
section 1201. Additionally, they contend kidnapping resulting in death is subject to
capital punishment (18 U.S.C. § 1201, subd (a)), and so this crime is not subject to the
five-year statute of limitation. Thus, Castro’s statements could potentially subject him to
prosecution under federal law. For the reasons that follow, we cannot conclude the court
erred in permitting Castro to invoke the privilege against self-incrimination.
1. Ortega’s Right to Compulsory Process Was Not Violated
Initially, we reject Ortega’s claim his Sixth Amendment right to compulsory
process was violated.8 Ortega concedes he is not alleging prosecutorial misconduct.
There is no evidence that the prosecutor or anyone other than Castro’s counsel influenced
Castro’s decision to invoke his Fifth Amendment privilege. Nevertheless, Ortega
contends his Sixth Amendment right to compulsory process was violated when it was
forced to yield to Castro’s invocation of his privilege against self-incrimination because
Castro did not have a good faith reason for his invocation.
Ortega relies upon United States v. Vavages (1998) 151 F.3d 1185 (Vavages), in
support of his contention. But Vavages is inapposite. In Vavages, the defendant alleged
the prosecutor coerced the defendant’s wife—his alibi witness—not to testify in his
defense. (Id. at p. 1188.) The Court concluded “that the prosecutor substantially
interfered with [the defendant’s wife’s] decision whether to testify,” by warning her
attorney that the prosecutor would file perjury charges against her and seek to withdraw
8 Notably, the People do not discuss whether the Sixth Amendment right to
compulsory process is cognizable during a section 1172.6 evidentiary hearing. For
purposes of our analysis, we assume, without deciding, that it is.
29.
her plea agreement in another case if she testified in support of the defendant’s alibi
which was the “but for” cause of her refusal to testify. (Id. at p. 1191.) The Vavages
court found the interference “especially prejudicial in light of the district court’s failure to
scrutinize adequately [the defendant’s wife’s] basis for invoking the Fifth Amendment
privilege against self-incrimination.” (Ibid.) The Court explained “a criminal
defendant’s right to compulsory process to secure the attendance of a witness does not
include the right to compel the witness to waive her Fifth Amendment privilege against
self-incrimination[.]” (Ibid.) But the defendant’s wife “never established a good-faith
belief that her testimony might incriminate her,” so “the district court should not have
approved her blanket invocation of the Fifth Amendment.” (Id. at p. 1192.)
Accordingly, the court reversed the defendant’s conviction and remanded for a new trial.
(Id. at p. 1193.)
Unlike in Vavages, here Ortega does not allege prejudicial governmental
interference. Indeed, he admits he is not raising a claim of prosecutorial misconduct.
Thus, he has not articulated a valid claim for a violation of his Sixth Amendment right to
compulsory process.
2. The Court Did Not Err In Permitting Castro To Invoke His
Privilege Against Self-Incrimination
We also reject Ortega’s contention to the extent he is claiming the trial court erred
in permitting Castro to invoke his privilege against self-incrimination. As the parties
acknowledge, the “dual-sovereignty” doctrine permits the federal government to
prosecute a defendant for conduct under a federal statute even if a state has prosecuted
him for the same conduct under state law. (See Gamble, supra, 587 U.S. at p. 681.) And
as the People discuss, there is a possibility that Castro’s testimony regarding his
knowledge and involvement in the instant crime(s) could subject him to federal
prosecution under federal kidnapping law when a death results if it could be shown he
used an instrumentality of interstate commerce in committing or in furtherance of the
30.
offense, such as a cellphone or car.9 (See e.g., United States v. Stackhouse (2024)
105 F.4th 1193, 1199–1202.)
Here, Castro invoked the privilege against self-incrimination in response to
defense counsel asking him whether he was involved in the carjacking of Hunter’s truck.
The trial court stated it would permit Castro to invoke the privilege to questioning “along
those lines,” and defense counsel stated this subject was “the meat” of his questioning.
We agree with the court’s finding that it is “evident from the implications of the question,
in the setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.’ ” (Seijas, supra, 36 Cal.4th at p. 304.) Said differently, because
it did not “clearly appear[]” “that the proffered evidence [could not] possibly have a
tendency to incriminate” Castro, the court did not err by permitting him to invoke the
privilege. (Evid. Code, § 404; see also Seijas, supra, 36 Cal.4th at p. 305.)
3. Castro Did Not Waive His Right to Assert the Privilege Against
Self-Incrimination
Ortega next contends that Castro “waived any privilege he might have had by
voluntarily submitting a declaration, executed under penalty of perjury, attached to his
motion to quash [Ortega’s] subpoena.” Again, we disagree.
“ ‘It is well established that a witness, in a single proceeding, may not testify
voluntarily about a subject and then invoke the privilege against self-incrimination when
questioned about the details. [Citation.] The privilege is waived for the matters to which
the witness testifies, and the scope of the “waiver is determined by the scope of relevant
9 While Ortega argues that Castro’s counsel did not specify that Castro could be
prosecuted under federal law for kidnapping resulting in death, the record reflects that
Castro’s counsel expressly stated he was advising Castro to invoke his privilege pursuant
to Gamble because kidnapping is also a federal crime. Thus, his counsel asserted on the
record that the basis for invoking the privilege was the possibility of federal prosecution
for kidnapping.
31.
cross-examination.” ’ ” (People v. Williams (2008) 43 Cal.4th 584, 615 (Williams).) But,
“a witness’s failure to invoke the privilege against self-incrimination during one hearing
within a proceeding does not necessarily constitute a waiver for the purpose of
subsequent hearings. Thus the failure of a witness to claim the privilege at a preliminary
hearing does not prevent the witness from refusing to testify regarding the same
incriminating material at the trial. [Citations.] Similarly, a witness’s incriminating
admission at an in limine hearing concerning the admissibility of evidence ordinarily
does not prevent the witness from invoking the privilege against being compelled to give
testimony regarding the matter at the trial.” (Ibid.)
Here, Castro did not testify at the evidentiary hearing regarding his involvement in
the events that occurred on March 22, 2022, and then invoke the privilege against self-
incrimination when asked about details of the event. Rather, he invoked the privilege
immediately upon being asked about this subject and continued to invoke it. While
Castro submitted a declaration under penalty of perjury concerning the relevance of his
testimony in support of his motion to quash the subpoena, we consider this more akin to a
witness’s statements made at an in limine hearing regarding the admissibility of evidence
which does not result in the waiver of the privilege against self-incrimination. (See
People v. Lawrence (1959) 168 Cal.App.2d 510, 515–517 [witness’s testimony during
voir dire examination during hearing for court to determine the admissibility of evidence
did not preclude that witness’s ability to assert the privilege against self-incrimination
during trial]; see also Williams, supra, 43 Cal.4th at p. 615 [“a witness’s incriminating
admission at an in limine hearing concerning the admissibility of evidence ordinarily
does not prevent the witness from invoking the privilege against being compelled to give
testimony regarding the matter at trial”].) Thus, his declaration did not amount to a
waiver of his right to invoke the privilege. (See generally Williams, supra, at p. 614
[“waiver of a nonparty witness’s privilege ‘is not to be lightly inferred’ ”].)
Accordingly, we reject Ortega’s initial contentions.
32.
III. Ortega Has Not Established Ineffective Assistance by His Counsel
Ortega next argues his counsel provided ineffective assistance by failing to seek
introduction of Castro’s prior statement. We cannot conclude Ortega has established
ineffective assistance of counsel.
A. Standard of Review and Applicable Law
A defendant claiming ineffective assistance of counsel “must show that counsel’s
representation fell below an objective standard of reasonableness” measured against
“prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.)
In evaluating trial counsel’s actions, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance[.]”
(Id. at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a defendant
must overcome the presumption the challenged action might be considered sound trial
strategy under the circumstances. (Strickland, at p. 689; Dennis, at p. 541.)
“Reasonableness must be assessed through the likely perspective of counsel at the time.”
(People v. Ochoa (1998) 19 Cal.4th 353, 445.) On direct appeal, when no explanation for
counsel’s conduct can be found in the record, “we must reject the claim [of ineffective
assistance of counsel] on appeal unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.” (People v.
Scott (1997) 15 Cal.4th 1188, 1212.)
It is settled that, “[i]f the record on appeal sheds no light on why counsel acted or
failed to act in the manner challenged, an appellate claim of ineffective assistance of
counsel must be rejected unless counsel was asked for an explanation and failed to
provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise,
the claim is more appropriately raised in a petition for writ of habeas corpus.” (People v.
Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th
264, 266–267.)
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Evidence Code section 1230 provides for an exception to the hearsay rule for
statements against interest:
“Evidence of a statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and the statement, when made, was so far contrary
to the declarant’s pecuniary or proprietary interest, or so far subjected him
to the risk of civil or criminal liability or so far tended to render invalid a
claim by him against another, or created such a risk of making him an
object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless
he believed it to be true.”
Evidence Code section 240, subdivision (a)(1) provides that a declarant is
“unavailable as a witness” when he is “[e]xempted or precluded on the ground of
privilege from testifying concerning the matter to which his or her statement is relevant.”
B. Analysis
Ortega contends his counsel provided ineffective assistance by failing to seek
admission of Castro’s prior statement to Stephanie G. Ortega asserts counsel mistakenly
believed that Castro’s Fifth Amendment privilege precluded the defense from introducing
this statement at the evidentiary hearing and the error was prejudicial. He contends the
statement was a declaration against interest pursuant to Evidence Code section 1230 and
the trial court’s finding of privilege rendered Castro statutorily unavailable pursuant to
Evidence Code section 240, subdivision (a)(1), so such evidence was admissible pursuant
to Evidence Code section 1230. The People respond that the alleged statement by Castro
that Carillo (“Rumpy”) gave Dyer the gun “was not necessarily disserving of Castro’s
interests, since it indicated that someone other than Castro was involved in the actual
killing and providing the means to perform that killing.” And counsel may have decided
Castro’s statement was more damaging than helpful. Alternatively, they contend Ortega
was not prejudiced by his counsel’s failure to introduce Castro’s prior statement. We
cannot conclude Ortega has established ineffective assistance of counsel.
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First, even if Stephanie G.’s proposed testimony would have been admissible
pursuant to Evidence Code sections 240 and 1230, counsel could have reasonably
concluded the proposed testimony would have been more prejudicial than probative to
Ortega to the
extent it could suggest Ortega was involved in beating Hunter before he was killed. A
reasonably competent defense attorney may have made the tactical decision not to
introduce such evidence because it could further support a conclusion Ortega was a major
participant in the underlying felony who acted with reckless indifference to human life.
Thus, Ortega has failed to establish there was no rational tactical purpose for failing to
introduce such evidence. (See People v. Bolin (1998) 18 Cal.4th 297, 334 [“Whether to
call certain witnesses is … a matter of trial tactics, unless the decision results from
unreasonable failure to investigate.”].)
We cannot conclude Ortega was prejudiced. We note he has not presented any
offer of proof regarding what Stephanie G. would have testified to had her testimony
been introduced at the hearing; thus, “ ‘without engaging in speculation, we cannot infer
anything about its existence, availability, or probative force, or the probable
consequences of its use at trial.’ ” (People v. Wash (1993) 6 Cal.4th 215, 269.) Even had
Stephanie G. testified consistently with the statements in Hanson’s report, we cannot
conclude that it is reasonably probable Ortega would have obtained a more favorable
result. The court relied upon multiple circumstances to conclude he was a major
participant who acted with reckless indifference to human life. We cannot conclude it
was reasonably probable that testimony from Stephanie G. regarding Castro’s alleged
statements to her following the murder—which could have supported a finding that
Ortega beat Hunter before he was killed—would have affected the court’s determination
that Ortega was a major participant in the underlying crime who acted with reckless
indifference to human life. This would be so, even had Stephanie G. testified Castro said
Carrillo gave Dyer the gun.
35.
In reaching this conclusion, we note that the court relied upon Ortega’s admission
at the evidentiary hearing that he drove Hunter’s truck to the location where Hunter was
ultimately killed, which was consistent with Cruz and Roman’s testimony at trial and
inconsistent with Castro’s alleged statement to Stephanie G. Ortega also admitted he
took the rims off the truck and continued to do so after seeing the victim laying down in
the back of the truck. He further testified he wiped down the truck for fingerprints, and
that he ultimately burned the body and the truck. We note the court did not find Ortega’s
testimony at the evidentiary hearing credible that he did not know Hunter was in the back
of the truck when he drove it. (See generally People v. Stewart (2000) 77 Cal.App.4th
785, 790 [“ ‘we do not reweigh the evidence; the credibility of witnesses and the weight
to be accorded to the evidence are matters exclusively within the province of the trier of
fact’ ”].) In support of its findings, the court also relied upon evidence that the group was
waiting for Ortega to arrive, supporting a conclusion he was a leader in the operation, and
it discussed Cruz’s testimony from trial in which he stated Ortega was laughing and said
that they “were going to kill this mother fucker.” In light of all of the other supporting
evidence the trial court relied upon in reaching its findings, we cannot conclude it is
reasonably probable Ortega would have obtained a more favorable result, even had
counsel sought admission of Castro’s alleged statements to Stephanie G.
Thus, we reject Ortega’s claim of ineffective assistance of counsel.
36.
DISPOSITION
The court’s order denying Ortega’s section 1172.6 petition for resentencing is
affirmed.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P. J.
DESANTOS, J.
37.