People v. Cruz CA4/3

Filed 11/9/22 P. v. Cruz CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060903
v. (Super. Ct. No. 02CF0796
ROBERTO CARLOS CRUZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Steven D. Bromberg, Judge. Affirmed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Roberto Carlos Cruz was convicted, along with a codefendant, of
the 2002 murders of Andres Garza and Francisco Walle. The jury found the murders to
be first degree and returned true findings on special circumstance and enhancement
allegations. Cruz was sentence to consecutive terms of life imprisonment without parole
(a gang enhancement was stricken, and sentence on another count was stayed). He
appealed and we affirmed his conviction. (People v. Cruz (Sept. 29, 2006, G035177)
[nonpub. opn.].)
Cruz has since petitioned unsuccessfully for writ relief from this conviction
three times. In 2021, he filed this action, seeking relief pursuant to newly enacted Penal
Code section 1170.95.1 Section 1170.95 is the procedural mechanism for implementing
legislative changes in California law which narrow the scope of vicarious liability for
murder in two ways. First, the Legislature eliminated the natural and probable
consequences theory for that crime by providing that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Second,
it reigned in the felony murder rule so that it can only be applied to nonkillers if they
aided and abetted the killer in committing first degree murder, or they were a major
participant in the underlying felony and acted recklessly indifferent to human life. (§
189, subd. (e).)
In addition to ushering in these changes, the Legislature also enacted
section 1170.95, which is the procedural mechanism for challenging a murder conviction
based on vicarious liability. To obtain relief under that section, the defendant must show
1) he was prosecuted for murder under the felony murder rule or the natural and probable
consequences doctrine, 2) he was ultimately convicted of first or second degree murder,
1
That statute has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.)
Because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to
Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code.
2
and 3) and he would not be liable for murder today because of how the Legislature has
redefined that offense. (§ 1170.95, subd. (a).)
If the defendant makes a prima facie showing to that effect, the trial court is
required to issue an order to show cause and, absent a concession by the People, conduct
an evidentiary hearing. (§ 1170.95, subds. (c), (d).) At the hearing, the prosecution must
prove beyond a reasonable doubt the defendant is ineligible for resentencing because his
conduct did in fact rise to the level of murder as redefined by Senate Bill 1437. (Id.,
subd. (d)(3).) Otherwise, the defendant is entitled to vacatur and resentencing pursuant to
the terms of section 1170.95.
Here, counsel was appointed for appellant, the matter was fully briefed, a
hearing was held, and the trial court denied the requested relief. Appellant appealed, and
we appointed counsel to represent him. Counsel filed a brief which set forth the
procedural facts of the case. Counsel did not argue against appellant but advised us there
were no issues in the case that had any chance of success. Appellant was invited to
express his own objections to the proceedings against him and filed a brief, but – as we
will discuss – while he touched upon the section 1170.95 issue, he mostly addressed
substantive issues not cognizable on his petition.
We find ourselves in agreement with appellate counsel. There is no relief
available to Cruz. In the first place, the jury found defendant guilty of first degree
murder. That finding necessarily requires an intent to kill. The jury also found a gang
special circumstance to be true as to both counts, again necessarily reflecting an intent to
kill. And they found true a drive-by murder special circumstance, another finding that
necessarily includes a decision Cruz had the intent to kill.
As the trial court correctly found – after appointing appellant an attorney
and conducting an undisputed hearing on the issue – these determinations establish
appellant harbored actual malice so as to render him ineligible for resentencing under
section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952, 971; People v. Gentile (2020)
3
10 Cal.5th 830, 847; People v. Bentley (2020) 55 Cal.App.5th 150, 154.) Therefore, his
petition was properly denied. There is simply no issue here. Relief under section
1170.95 requires that the applicant be someone who could not be convicted under the
legislative reformation of the felony murder rule. Cruz does not fit that mold; he was one
of two shooters and the jury found he had an intent to kill.
In his supplemental brief, appellant contends the jury instructions were
erroneous. He relies on erroneous instructions regarding the “natural and probable
consequences theory” of criminal liability he says were given. But those instructions
were not given here.
This was a mistaken identity defense; Cruz claimed never to have been at
the scene and to have met his codefendant only when they were jailed together. Cruz was
tried as one of two shooters in a gang retaliation case; there was no suggestion of any
underlying crime of which the murder was a natural and probable consequence. The only
natural and probable consequence in the case was that if you shoot somebody he may
naturally and probably die. So no “natural and probable consequence” instructions were
given.
Beyond that, Cruz’s briefing consists entirely of issues we are not able to
decide in an appeal from the denial of a section 1170.95 petition. He contends the joinder
of his case with his codefendant’s was prejudicial (an argument analyzed and rejected in
Cruz’s direct appeal), he asserts California’s criminal street gang laws are
unconstitutional, he contends his trial counsel provided inadequate assistance, he attacks
the sufficiency of the evidence, pointing out the discrepancies between the descriptions of
the perpetrators and his own physical makeup, and argues the photo array from which his
picture was chosen was unduly suggestive. Essentially his argument is that the case
against him is so weak that he could not be convicted if tried again – and that section
1170.95 is designed to provide relief to those who could not be convicted under
California’s new murder standards.
4
But on this appeal, we are limited by law to a review of the proceedings
under his request for relief under section 1170.95. We cannot review issues either
decided on his direct appeal or apparent and unraised. All we can do is review the
hearing held below on his section 1170.95 petition, and we are unable to find any flaw in
those proceedings. The jury rejected his defense that he was not there. By finding him
guilty of first degree murder and finding the special circumstances true, they necessarily
found he was a major participant (there were no minor participants; there were only the
two shooters) and he had the intent to kill.
The order is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
5