People v. Ortega CA3

I. BACKGROUND

A jury previously found defendant guilty of first degree murder (§ 187, subd. (a)) and found true allegations that defendant personally and intentionally discharged a firearm causing death or injury (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)(1)). (People v. Ortega (Apr. 10, 2012, C065027) [nonpub. opn.].) On September 6, 2019, defendant filed a petition for resentencing pursuant to section 1172.6. The trial court appointed counsel and on September 1, 2020, denied the petition finding the jury “was not instructed on either felony-murder or the natural and probable consequences doctrine. No accomplice liability or conspiracy instructions of any kind were given, and the jury was instructed only with CALCRIM Nos. 520 and 521 on malice aforethought murder and not on any other theory of murder. Defendant . . . was convicted of first degree murder, which under the instructions required a finding of premeditated, deliberate, express malice murder, and the jury found true . . . personal gun use enhancements.” Thus, defendant was not entitled to resentencing as a matter of law. Defendant filed a timely notice of appeal. On February 26, 2021,…