Ortiz
People v. Ortiz
Opinion
Opinion
Crosby, J.
A jury convicted Mario Luis Ortiz of murder and second degree robbery and found vicarious firearm and criminal street gang enhancements to be true. Ortiz contends the evidence was insufficient to support the Penal Code section 186.22, subdivision (b)(1) gang enhancement, the trial court erred in imposing three years consecutive per Penal Code section 186.22, subdivision (b)(4), and the overall sentence constitutes cruel and unusual punishment. Only the second contention has merit.
I
East Side Longo Barrio Viejo (ESL) gang members Ortiz, age 14, and Oscar Lemus, “Termite,” wanted revenge against the Insane Crips gang. They planned to rob a 24-hour service station and pin the deed on their rivals. They believed the Crips had framed an ESL member for murder.
On March 12, 1995, Lemus stored a handgun in a secret compartment in his car. Sometime after 3:47 a.m., Ortiz, Lemus, and two female companions arrived and parked at the station. They told the girls they were there to use the restroom. Lemus retrieved the pistol before they left the car.
Ortiz first met the store clerk, Danette Garrett, at a wedding reception and spoke to her whenever he visited the station. She had…