People v. Rucker CA2/3

Filed 5/23/22 P. v. Rucker CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B316178
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA098143
v.
ARCHIE JOHN RUCKER, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Archie John Rucker, Jr., appeals from an order denying his
petition for resentencing under Penal Code1 section 1170.95. His
appellate counsel filed a brief asking this court to proceed
under People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.
BACKGROUND2
1. The Underlying Crimes
On December 17, 2007, Alan Herrera lived in a garage
behind his parents’ home on East 112th Street in Los Angeles. At
approximately 9:00 p.m., he was playing video games in the
garage with four friends including José Posada, Ernesto Herrera,
and Christopher Meza. Alan Herrera went to the gate in front of
the house where he was confronted by Warren Nelson who had a
nine-millimeter handgun, and Rucker who had a shotgun. Nelson
pointed the handgun at Alan Herrera’s head and led him past the
house and into the garage. Rucker followed them into the garage
with the shotgun.
Nelson told Alan Herrera’s friends to get on the floor and
they complied. Ernesto Herrera testified Rucker pointed a
shotgun at his face and, while he was on the floor, someone began
tying him with duct tape. Nelson repeatedly demanded to know
where the money was.
1 All undesignated statutory references are to the Penal Code.
2 In his petition for resentencing, Rucker states that his statement of
facts was taken from this court’s opinion in Rucker’s direct appeal,
People v. Rucker (Mar. 8, 2011, B220186) [nonpub. opn.] (Rucker I),
and the attached trial transcripts. Our factual and procedural
summary is taken from Rucker I and the record in this appeal.
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José Herrera, Alan’s father, heard noises in the back yard
and asked his wife to see what’s going on. Alan Herrera heard his
mother scream, “What’s going on out there?” The intruders
panicked and said, “get the mom.” Nelson directed Alan Herrera
into the backyard with the gun still at his head. Rucker followed
with the shotgun.
José Herrera testified that when his wife returned from the
backyard, Rucker was pointing a shotgun at her. Also, Nelson
repeatedly struck his son on the head with a gun and demanded
to know where the money was. José Herrera hit Rucker with a
chair in the chest causing Rucker to fall. Rucker got up,
“cranked” the shotgun and fired it into the air. He then “cranked”
it again and pointed it at José Herrera.
Alan Herrera saw his father trying to push Rucker and
Rucker trying to hit his father with the shotgun. When Alan
Herrera intervened and pushed Rucker, Rucker hit Alan twice in
the head with the shotgun. Nelson tried to enter the home but
Almira Herrera, Alan’s sister, stopped him. Almira Herrera then
chased Nelson into the backyard and tried to stab Nelson with a
knife. Alan Herrera heard a gunshot and immediately thereafter
his sister fell to the ground. The intruders fled. Almira Herrera
died of a gunshot wound to the chest.
Alan Herrera and Christopher Meza testified Nelson and
Rucker were accompanied by two unarmed individuals. The
police found a nine-millimeter casing in the backyard but no
spent shotgun shell.
Los Angeles Police Detective Roger Allen interviewed
Rucker regarding the incident. An audiotape recording of the
interview was played for the jury. Rucker said Nelson approached
him at 109th Street and Watts Avenue and talked about a
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robbery, which Nelson referred to as a “smooth little lick.” Nelson
said he, Rucker and a “smoker dude” were going to commit the
robbery and Rucker would be the look out. Nelson told Rucker to
meet him at 112th Street. When Rucker arrived, Nelson gave
Rucker a shotgun that was loaded with five rounds. Nelson had a
nine-millimeter handgun. Nelson, the smoker dude, and Rucker
went to the gate. The smoker dude telephoned Alan Herrera and,
when Alan Herrera opened the gate, Nelson grabbed him and
took him to the back.
Rucker initially claimed he stayed at the gate with the
shotgun. When Detective Allen said Rucker’s DNA had been
found on the duct tape, Rucker admitted he opened the tape, bit
it and “wrapped it around … [s]o it wouldn’t stick back together.”
Rucker then further admitted he went into the back yard with
Nelson. Rucker ordered everyone to freeze, then stood by the side
of the house and watched Nelson who had a gun at Alan
Herrera’s neck. Rucker saw a female with a knife, yelling and
chasing Nelson. An older male rushed Rucker with a chair and
struck him, causing him to fall. Rucker heard Nelson threaten to
shoot the female, followed by a gunshot. At that point, Rucker
ran from the scene. Rucker denied he intentionally hurt anyone
and expressed surprise at the number of people at the location.
Following a jury trial in 2009, Rucker was convicted of first
degree murder of Almira Herrera (§ 187) and attempted robbery
of Alan Herrera (§§ 664/211). The jury found true the special
circumstance allegation that Rucker committed the murder
during an attempted robbery (§ 190.2, subd. (a)(17)). The trial
court sentenced him to life imprisonment without the possibility
of parole for the murder conviction, plus six years for the
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attempted robbery conviction. Rucker appealed and the judgment
was affirmed as modified in Rucker I.
2. Resentencing Proceedings
On February 10, 2021, Rucker, represented by counsel,
filed a petition for resentencing under section 1170.95. Rucker
argued the jury’s special circumstance finding does not preclude
relief as a matter of law, he was not the actual killer, he did not
directly aid and abet in the murder, and he was not a major
participant in the attempted robbery who acted with reckless
indifference to human life. As exhibits to the petition, Rucker
included numerous minute orders, the opinion issued in Rucker I,
and trial transcripts.
On July 23, 2021, the People conceded Rucker had made a
prima facie case of eligibility for relief, and the court scheduled
an order to show cause hearing. On October 25, 2021, Rucker
filed a supplemental brief arguing, among other things, that at
an evidentiary hearing the court is to act as an independent
factfinder applying a proof beyond a reasonable doubt standard.
The hearing on Rucker’s petition was held on October 29,
2021. The parties relied solely on the evidence in the record of
conviction and did not introduce any additional evidence at the
hearing. The court denied the petition. After applying the factors
set forth in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522, the court found that Rucker was a
major participant in the underlying felony resulting in the
murder and acted with reckless indifference to human life at
the time of the crime. As for his role as a major participant, the
court cited evidence that Rucker willingly went along with
Nelson’s plan, Rucker had a loaded shotgun, Rucker struck Alan
Herrera in the head with the shotgun, and Rucker “was there
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from start to finish.” As for his actions with reckless indifference
to human life, the court cited evidence that Rucker and “his
compadres” had loaded shotguns, Rucker provided the duct tape,
Rucker hit the victim with the firearm, Rucker shot his firearm
into the air a couple of times, and Rucker did nothing to prevent
the murder or dissuade Nelson from murdering the victim. The
court also noted that Rucker fled the scene after lethal force was
used; he did not try to assist the victim and did not call
paramedics or the police. The court thus concluded Rucker was
ineligible for resentencing pursuant to section 1170.95.
Rucker filed a timely notice of appeal. On March 9, 2022,
appointed counsel filed a brief in which counsel raised no issues
and asked us to review the record independently under Wende,
supra, 25 Cal.3d 436. This court notified Rucker that his attorney
had failed to find any arguable issues and that he could submit
by brief or letter any arguments he wished this court to consider.
We have not received a response.
DISCUSSION
Given there was no new evidence presented at the hearing,
the trial court relied on evidence from the record of conviction to
conclude Rucker was ineligible for resentencing under section
1170.95. It applied the reasonable doubt standard to find he was
a major participant in the felony resulting in Almira Herrera’s
murder and acted with reckless indifference to human life at the
time of the crime. (§ 1170.95, subd. (d)(3).)
We have examined the entire record, and are satisfied
appellate counsel has fully complied with counsel’s
responsibilities and no arguable issues exist in the appeal before
us. (Smith v. Robbins (2000) 528 U.S. 259, 278–284; Wende,
supra, 25 Cal.3d at p. 443.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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