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Ortega v. Superior Court (The People)

California Court of Appeals, First District, Fifth Division

September 24, 2019

DANIEL ORTEGA, Petitioner,

          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 Appellant.

         No appearance for Respondent.

          Xavier 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.

          NEEDHAM, J.

         Daniel 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.)[1] 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.

         I. BACKGROUND

         As relevant here, the evidence presented to the grand jury was as follows:

         On the 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 bar.

         After 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.”[2] He also said, “That nigger is trippin’ ” and “Oh, he’s pimpin.’ ” Porter-Kelly left through the back door and Sims followed.

         Herrera 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 the patio.

         Petitioner dropped his cell phone and punched Sims in the face.[3] 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 petitioner’s car.

         Herrera 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 seat.

         Herrera 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.

         Sims 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 tell.

         Based 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 assault ...

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