P. v. Cortez

Filed 7/16/20 P. v. Cortez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JOE EZEQUIEL CORTEZ,
Defendant and Appellant.
2d Crim. No. B301016
(Super. Ct. No. 2004045000)
(Ventura County)
Joe Ezequiel Cortez is serving a 33-years-plus-life
without possibility of parole state prison sentence for the special
circumstances, first degree murder of Karl Wenrich. He appeals
a postconviction order denying his petition and supplemental
petition for resentencing. (Pen. Code, § 1170.95, subd. (a).)1 The
trial court found that appellant failed to make a prima facie
showing for relief. We affirm. (§ 1170.95, subd. (c).)
1 All statutory references are to the Penal Code unless
otherwise stated.

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Procedural History
In 2006, a jury convicted appellant of first degree,
special circumstances murder (§§ 187, subd. (a), 189), first degree
residential burglary (§ 459), attempted first degree robbery
(§ 211), possession of a firearm by a felon (§ 12021, subd. (a)),
unlawful possession of ammunition (§ 12316, subd. (b)(1)), and
possession for sale of a controlled substance (Health & Saf. Code,
§ 11351). The jury returned true findings on three special
circumstances allegations: the murder was committed during the
commission or attempted commission of a burglary (§ 190.2,
subd. (a)(17)(G)); the murder was committed during the
commission or attempted commission of a robbery (§ 190.2, subd.
(a)(17)(A)); and the murder was committed while appellant was
an active participant in a gang (§ 190.2, subd. (a)(22)). The jury
also found that a principal discharged a firearm causing death,
that the offenses were committed for the benefit of a criminal
street gang, and that appellant was personally armed with a
firearm (§ 12022, subd. (c)), and possessed 14.25 grams or more of
a controlled substance (Health & Saf. Code, § 11352.5, subd. (1)).
Killing During a Home Invasion Robbery
We affirmed the conviction in a 2008 nonpublished
opinion (People v. Cortez (Jan. 16, 2008, B190878)) which
contains the following summary of facts: In 2003, appellant went
to a drug dealer’s (Wenrich) house to buy heroin. Over Wenrich’s
objection, appellant let fellow gang members Ernesto Madrid and
Ernesto Hall into the house. Wenrich was bound with duct tape,
the house was ransacked for drugs and money, and Wenrich was
shot twice in the head and once in the chest and hip. Wenrich
called 911 and told the police that appellant shot him. Appellant
was arrested hours later, wearing sneakers that matched the

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bloody shoe prints in Wenrich’s house. Inside appellant’s house,
the police found a bag of syringes to inject heroin, a pipe and
marijuana, a loaded nine millimeter handgun, bullets, $2,231
cash, gang photos of appellant and Madrid, the duct tape used to
tie-up Wenrich, a stash of heroin packaged for sale hidden in a
box in the back yard, and shoes and clothing used in the robbery.
Wenrich’s blood was on a pair of shoes in appellant’s car trunk.
Petition for Resentencing
In 2019, appellant filed a petition and supplemental
petition pursuant to section 1170.95 alleging that he was not the
actual killer, that he did not intend to kill the victim, and he was
not a major participant in the burglary/robbery or act with
reckless indifference to human life during the course of the
burglary/robbery. Appellant’s cohort, Ernesto Hall, submitted a
declaration stating that Hall bound Wenrich’s legs, shot Wenrich
in the face, and that Wenrich was shot three or four more times
during a struggle. Hall claimed that appellant left on his bike
after appellant let Hall into the house.
The trial court appointed counsel for appellant and
denied the petition on the ground that no showing was made that
appellant was entitled to relief. In a written order, the trial court
stated “[t]here was substantial evidence presented at trial to
support [the] conclusion that [appellant] did aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in
the commission of murder in the first degree; and even more[ ] so,
that he was a major participant in the felony and did act with
reckless indifferent to human life during the course of the crime.”
Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437), which became effective on January 1, 2019, revised

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the felony-murder rule in California “to ensure that murder
liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant
in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f), italics added.)
The bill “amends sections 188, which defines malice, and 189,
which defines the degrees of murder to address felony-murder
liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if
the changes in the law would affect their previously sustained
convictions. [Citation.]” (People v. Gutierrez-Salazar (2019) 38
Cal.App.5th 411, 417 (Gutierrez-Salazar).)
Section 1170.95, subdivision (c) provides that when a
defendant convicted of felony-murder files a petition for
resentencing, the superior court “shall review the petition and
determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section.” The
petition must meet the following conditions: “(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine. [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder. [¶] [And] (3) The petitioner
could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a), italics added; see People v. Martinez (2019)
31 Cal.App.5th 719, 723 [Senate Bill 1437 is designed to ensure
that murder liability is not imposed on a person who is not the

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actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life].)
Section 1170.95, subdivision (b)(1)(A) requires that
appellant submit a supporting declaration stating how and why
he is eligible for resentencing. Here, the petition is a check-the-
box form and has no supporting declaration by appellant, but
does list “additional facts” and states that appellant believes he
“could not now be convicted of 1st degree felony murder [due to]
changes [in] Penal Code § 189.”2 The supplemental petition,
which is verified by appellant’s court appointed attorney, consists
of hearsay and legal argument unsupported by evidentiary
citation.3 At issue is the third qualifying prong (§ 1170.95, subd.
(a)) which requires a prima facie showing that appellant could
not be convicted of first degree murder because of recent
statutory changes to sections 188 and 189.
2 Appellant claims he is not bound by the record of
conviction and the trial court erred in not granting an evidentiary
hearing. Appellant, however, made no offer of proof what that
evidence would be and requested that the trial court consider
evidentiary matters rejected in prior habeas petitions: a superior
court habeas petition (Ventura County Sup. Court, case no,
2004045000) and four habeas petitions filed with this court.
(B202521, B207384, B210405, and B245076.)
3 Counsel’s declaration states that appellant considered
Wenrich a close friend, that appellant did not intend to aid or
abet the burglary/robbery, that appellant was not a major
participant in the crimes, that appellant did not want Wenrich
killed, that appellant did not conspire to victimize Wenrich, and
that the record of conviction is “misleading” because appellant
“never had visitation by his appointed counsel” and was “the
victim of ineffective assistance of counsel.”

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Here, the jury found the murder was committed
during the commission of a burglary (§ 190.2, subd. (a)(17)(G))
and robbery or attempted robbery (190.2, subd. (a)(17)(A)).
Although appellant was not the actual killer, the trial court cited
a litany of factors that render appellant ineligible for
resentencing: Appellant’s cell phone was used to communicate
with Hall and Madrid before their entry into Wenrich’s home;
appellant searched the house for money and drugs after Madrid
duct-taped Wenrich; Madrid threatened to torture Wenrich if he
did not say where the money was hidden; finding money and
drugs, Madrid and appellant dragged Wenrich into the hallway
and demanded that he say where additional money was hidden;
after ransacking the house, Madrid said “‘Let’s just off the
motherfucker’”; appellant told Madrid to turn up the volume on
the stereo and Madrid shot Wenrich multiple times; Wenrich not
only identified appellant as one of the robbers but appellant’s
shoes matched the bloody footprints in Wenrich’s house; and
Wenrich’s blood was on the shoes and clothes found in appellant’s
car truck. Inside appellant’s house was the half roll of duct tape
used to bind Wenrich’s legs.
Appellant argues that the trial court erred in finding
there was substantial evidence that appellant was not eligible for
relief. The alleged error, if any, was harmless because the jury
found, beyond a reasonable doubt, that appellant committed a
felony-murder special circumstances murder. Like the defendant
in Guiterrez-Salzar, supra, 38 Cal.App.5th at p. 419, appellant is
ineligible for relief because Senate Bill No. 1437 amends section
189 to make the crime of felony murder mirror the elements of
the specific circumstance felony murder (§ 190.2, subd. (a)(17)).

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People v. Clark (2016) 63 Cal.4th 522 and People v.
Banks (2015) 61 Cal.4th 788 provide guidelines in determining
whether an aider and abettor was a “major participant” who
acted with “reckless indifference [for] . . . life.” (Id. at pp. 798-
804.) Those cases hold that a defendant acts with a reckless
indifference to human life when he or she “knowingly creat[es] a
‘grave risk of death’. . . .” (Id. at p. 808.) This, however, is not a
close case. Appellant not only helped stage the home invasion
robbery, but assisted in the torture of Wenrich to find money and
drugs. When Madrid said “‘Let’s just off the motherfucker,’”
appellant told him to turn the music up to mask the sound of the
gun shots.
A “[d]efendant’s claim that the evidence presented
against him failed to support [a] robbery-murder special
circumstance [finding made prior to Banks and Clark] . . . is not
a ‘routine’ claim of insufficient evidence . . . .” (In re Miller (2017)
14 Cal.App.5th 960, 979-980.) Appellant’s petition for
resentencing “does not require resolution of disputed facts; the
facts are a given . . . .” (Id. at p. 980; see Gutierrez-Salazar,
supra, 38 Cal.App.5th at pp. 419-420 [defendant not eligible for
relief under Senate Bill No. 1437 where the jury found true
special circumstance allegation that murder was committed
during commission of a robbery]; People v. Gonzalez (2018) 5
Cal.5th 186, 202 [felony-murder special-circumstance
instructions required jury to find aider and abettor intended to
kill or was a major participant and acted with reckless
indifference to human life].)
Disposition
The judgment (order denying section 1170.95 petition
for resentencing) is affirmed.

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NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.

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Ben Coats, Judge
Superior Court County of Ventura
______________________________
Todd W. Howeth, Public Defender, Michael C. McMahon,
Snr. Deputy, under appointment by the Court of Appeal for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee, Stacy S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.

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