Cortes

FACTS AND PROCEDURAL HISTORY

The Shootings

At approximately 4:15 p.m. on February 9, 2005, witnesses saw Cortes driving his car past a liquor store with three male passengers. The car stopped and between four and five gunshots were fired, killing the victim but missing his companion. One witness saw two Latino men commit the shooting. The witness was unable to identify Cortes in a line-up, but at trial the witness stated that Cortes looked like one of the shooters. Evidence was presented that the shooting was gang-related. (People v. Cortes (Jun. 17, 2009, B206770) [nonpub. opn.].)

1 Allfurther statutory references are to the Penal Code unless otherwise indicated.

2 Trial and Direct Appeal

At trial, the jury was instructed that it could find Cortes guilty of murder as a direct perpetrator or as a direct aider and abettor. The trial court did not instruct on felony murder or the natural and probable consequences doctrine. In closing argument, the prosecutor told the jury it could find Cortes guilty either as a direct aider and abettor or as a perpetrator. With respect to aiding and abetting, the prosecutor argued: “There were several people that were part of this incident,…