California Court of Appeals, First District, Fifth Division
Superior Court of Contra Costa No. 51706514 Honorable Theresa
Canepa, Trial Judge
Martinez Law Office, Martin James Martinez; Duane Morris,
Michael Louis Fox; Elizabeth K. Barker and Zachary Nathan
Linowitz, Deputy Public Defenders for Petitioner and
appearance for Respondent.
Becerra, Attorney General; Gerald A. Engler and Jeffrey M.
Laurence, Assistant Attorneys General; Eric D. Share and
Elizabeth W. Hereford, Deputy Attorneys General for Real
Party in Interest.
Ortega (petitioner) seeks a writ of prohibition from an order
denying his motion to set aside the murder count in the
indictment filed against him and two co-defendants. (Pen.
Code, § 995.) He contends he was indicted on less
than probable cause because the grand jury heard evidence and
received instructions on two theories of murder that were
subsequently invalidated under Senate Bill 1437. (Stats.
2018, ch. 1015, §§ 1–3.) We conclude that
because the evidence and instructions supported
petitioner’s indictment on a still-valid theory of
murder, the motion under section 995 was properly denied.
relevant here, the evidence presented to the grand jury was
night of November 11–12, 2016, petitioner went with
Dena Herrera to the Capri Club bar in El Sobrante, driving
petitioner’s car. Also present in the bar were
co-defendants Daniel Porter-Kelly and Ray Gonzalez Simons,
both of whom petitioner knew. Surveillance cameras showed
that Simons told petitioner something to the effect of,
“Hey, you know what? I just bought a little-ass pistol
and I am going to put (unintelligible) in this mother
fucker.” Later, victim William Sims walked into the
the bartender announced last call, petitioner went out the
back door of the bar to a patio with Simons and Herrera. Sims
and Porter-Kelly remained inside, and when Sims hugged a
woman in the bar, Porter-Kelly said, “Fuck that
nigger.” He also said, “That nigger is
trippin’ ” and “Oh, he’s
pimpin.’ ” Porter-Kelly left through the back
door and Sims followed.
began talking to Sims, with whom she had had a friendly
conversation in the bar, and Porter-Kelly walked over to
them. Sims extended his hand for Porter-Kelly to shake, but
Porter-Kelly gave him a dirty look and refused. Petitioner
walked over and reluctantly shook Sims’s hand at
Herrera’s insistence. Simons approached and asked Sims
if he wanted to buy some cocaine, to which Sims replied that
he only had one dollar. Simons told him they would see what
they could do and all four men walked to a different area of
dropped his cell phone and punched Sims in the
face. Sims was knocked to the ground and
Herrera saw petitioner, Porter-Kelly and Simons kick and
punch him all over. Herrera tried to stop the beating, but
petitioner told her not to interfere. She then tried to leave
before the beating was over, by driving away in
started the car and started backing slowly down the driveway
next to the bar. Petitioner ran up to the car, sat down in
the front passenger seat, and said, “Bitch,
drive.” Simons then came up to the car with a wallet in
his hands and said, “There’s nothing in here but
a dollar and some swipers” (meaning credit cards).
Petitioner told him he needed to get rid of the wallet and
Simons entered the car and sat in the back passenger side
finished backing the car down the driveway and when she
pulled into the street in front of the bar, Sims ran up and
put his hands on the car. He yelled something but Herrera
could not recall what he said. Simons fired two shots.
Herrera drove away and petitioner told her, “I know you
are going to snitch, bitch.” Simons said she
wouldn’t tell because they knew where her family lived.
was fatally shot in the head. The injuries from the beating
he received at the hands of petitioner and co-defendants were
consistent with a “pistol-whipping, ” and were
severe enough that had he not been shot, they could have been
fatal. Sims may also have survived the beating had he not
been shot-the coroner who conducted the autopsy could not
on this evidence, the prosecutor gave written instructions to
the grand jury on aiding and abetting, aiding and abetting
under a natural and probable consequences theory, and the
felony murder rule, as well as the general principles of
homicide, murder with malice aforethought, robbery, and