Filed 1/20/21 P. v. Arocha CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B302196
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A989460)
v.
RUDY AROCHA,
Defendant and Appellant.
APPEAL from a post-judgment order of the Superior Court
of Los Angeles County, Ray G. Jurado, Judge. Affirmed.
Jonathan E. Demson, 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, Idan Ivri and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
In 2018, the Legislature changed felony murder law.
(Stats. 2018, ch. 1015, § 3.) A participant in the perpetration of a
designated felony offense can now be guilty of felony murder only
if (1) “[t]he person was the actual killer”; (2) the person, with
intent to kill, aided and abetted a first degree murder; or (3) the
person was a major participant in the underlying felony and
acted with reckless indifference to human life. (Pen. Code,1 § 189,
subd. (e).) The Legislature also enacted a petitioning mechanism,
now codified at section 1170.95, to allow offenders previously
convicted of murder by trial or plea to seek resentencing if they
could not be convicted of murder under the recently enacted
changes to felony murder law. Defendant Rudy Arocha
(defendant) filed such a petition and the trial court denied it,
finding the facts associated with his guilty plea to second degree
murder established he was the actual killer. We consider
whether defendant is ineligible for relief as an actual killer even
though his fatal shooting of the victim was accidental.
I. BACKGROUND
A. The Murder and Defendant’s Guilty Plea
In June 1989, the Los Angeles County District Attorney
filed a felony complaint charging defendant with murder for
killing Andrew Rodriguez. The complaint included a felony
murder special circumstance allegation (§ 190.2, subd. (a)(17))
and an allegation that defendant personally used a firearm in the
commission of the murder. By way of an amended complaint,
defendant was also charged with robbery (§ 211).
1
Undesignated statutory references that follow are to the
Penal Code.
2
Before the trial court held a preliminary hearing on the
complaint, defendant accepted a plea deal to resolve the case. He
pled guilty to second degree murder and robbery, and he
admitted the personal use of a firearm allegation. The
prosecution agreed to strike the felony murder special
circumstance allegation. During the plea colloquy, defendant
(and his attorney) accepted this statement by the prosecutor as
the factual basis for defendant’s plea: “It is our understanding in
this case that you [i.e., defendant] robbed an individual
named . . . Sergio Quintero, and during the course of that robbery
you accidentally shot a co-suspect, a person with whom you were
committing that robbery, a friend named Andrew Rodriguez.”2
2
The probation report prepared in connection with
defendant’s sentencing recites the circumstances of the offense as
follows: “On May 13, 1989, at approximately 5:50 a.m. in the
2000 block of South Maple Avenue, [defendant] while armed with
a small caliber handgun and companion/victim Andrew
Rodriguez stopped victim Sergio Quintiero on the pretext of
asking what time it was. Either [defendant] or his
companion/victim Rodriguez then knocked the victim Quintiero
to the ground and companion/victim Rodriguez then started
struggling with victim Quintiero going through his pockets,
attempting to remove his wallet and/or property (Count Two).
During this struggle, [defendant] displayed the small caliber
revolver (.22 caliber) and cocked back the hammer and it
subsequently discharged after being hit either [by]
companion/victim Rodriguez or victim Quintiero during the
struggle. Victim Rodriguez (Count One) was struck above the
right eye by the discharged bullet. [Defendant] then fled the
scene and ambulance personnel responded and the victim
Rodriguez was then taken to the hospital and subsequently
3
The trial court sentenced defendant to 15 years to life for
the murder. The court imposed a concurrent three-year prison
term for the robbery and imposed and stayed a one-year term for
the personal use of a firearm enhancement.3
B. Defendant’s Petition for Resentencing
In April 2019, defendant filed an uncounseled section
1170.95 petition for resentencing. With his petition, defendant
submitted a pre-printed declaration on which he checked boxes to
assert the complaint filed against him was premised on a theory
of felony murder, he was convicted by plea of second degree
murder, and he was not Rodriguez’s actual killer. Defendant
annotated his pre-printed form declaration with various
handwritten comments, including “robbery victim ‘resisted’
accidentally killing co-perp[etrator].”
The trial court appointed counsel for defendant. The
prosecution opposed defendant’s petition and argued (among
other things) defendant was ineligible for resentencing because
he was the actual killer. Attached to the prosecution’s opposition
were copies of the original felony complaint filed against
defendant, transcripts of defendant’s plea and sentencing
died . . . .”
We do not rely on the probation report’s recitation of these
circumstances in resolving this appeal. We instead rely only on
the facts defendant admitted as the factual basis for his guilty
plea.
3
In 2008, a jury convicted defendant for a crime he
committed while in prison. For that conviction, defendant
received a consecutive sentence of 25 years to life.
4
hearings, and defendant’s presentence probation report.
Defendant’s attorney filed a reply to the prosecution’s opposition.
In pertinent part, the reply contended the prosecution bore a
“heavy burden” to prove defendant ineligible and implied the
prosecution did not carry that burden because defendant
admitted during his plea colloquy that he accidentally shot
Rodriguez during the course of the robbery.
The trial court denied defendant’s section 1170.95 petition
without issuing an order to show cause. The court found
defendant was not eligible for relief because the “facts show that
he was the actual shooter.”
II. DISCUSSION
The trial court correctly ruled defendant is ineligible for
section 1170.95 relief. In entering his guilty pleas, defendant
admitted he personally used a firearm and, during the course of a
robbery, accidentally shot Rodriguez, his accomplice. These
admissions establish there can be no dispute defendant
personally fired the fatal shot. As we shall briefly explain, that
makes him Rodriguez’s actual killer no matter whether the death
was an accident. Defendant’s related claim of due process error
in resolving his section 1170.95 petition is also meritless.
Senate Bill 1437, which became effective January 1, 2019,
was enacted to “‘amend the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, 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.’” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.) Section 1170.95, the retrospective
5
relief provision enacted as part of Senate Bill 1437, permits an
offender to petition for resentencing “where all three of the
following conditions are met: ‘(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)(1)-(3).)” (Martinez, supra, 31 Cal.App.5th at 723.)
Defendant argues the record of conviction does not
establish he cannot satisfy the third of these conditions. He
contends the facts in the record are insufficient to show he was
Rodriguez’s actual killer as a matter of law. Defendant believes
there must be evidence of what he calls “actual causation,” i.e.,
evidence he personally and directly killed Rodriquez, and he
believes such evidence is lacking because he theorizes the actual
killer was not him but whoever knocked the gun he was holding,
causing it to discharge accidentally.
Defendant’s argument fails because the admissions he
made in pleading guilty make him an “actual killer.” (§ 189,
subd. (e) [“A participant in the perpetration . . . of a felony listed
in subdivision (a) in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the
actual killer”]; see also § 189, subd. (a) [robbery is a listed
felony].) Defendant admitted personal use of a firearm in
connection with Rodriguez’s murder. And he also admitted he
6
“robbed an individual named . . . Sergio Quintero, and during the
course of that robbery [he] accidentally shot” Rodriguez. Though
it was undisputed defendant did not intend to kill Rodriguez,
these are still facts that leave no doubt he was personally holding
the gun that fired the fatal shot. That makes him ineligible for
section 1170.95 relief as an actual killer. (People v. Cornelius
(2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020,
S260410 [affirming denial of section 1170.95 petition where the
jury convicted defendant of second degree murder and found true
a personal firearm discharge allegation that meant the jury found
the defendant was the actual killer and the changes to sections
188 and 189 were “‘inapplicable’”].)
Our focus on defendant’s admitted personal use and
discharge of the firearm when deciding whether he was the
actual killer is consistent with the understanding of the term in
Senate Bill 1437’s legislative history, i.e., that an actual killer is
someone who “personally” commits an act that results in the
victim’s death. (Assem. Com. on Public Safety, Rep. on Sen. Bill
No. 1437 (2017-2018 Reg. Sess.) June 25, 2018, pp. 5-6 [“Under
the provisions of this bill, an individual would not be liable for
2nd [degree] murder under a theory of felony murder unless the
individual personally committed the act that resulted in death”],
italics added; Sen. Rules Com., Senate Floor Analysis of Sen. Bill
No. 1437 (2017-2018 Reg. Sess.) May 29, 2018, p. 1 [“This bill
revises the felony murder rule to prohibit a participant . . . to be
imputed to have acted with implied malice, unless he or she
personally committed the homicidal act”], italics added.) It is also
consistent with precedent discussing the meaning of what it
means to be an actual killer. (People v. Jennings (1988) 46 Cal.3d
963, 979 [an actual killer for purposes of section 190.2, the felony
7
murder special circumstance statute, is someone who “personally
killed” the victim in the commission of the offense].) Defendant’s
argument to the contrary, by contrast, incorrectly assumes a
person can personally commit an act that results in death only if
there is no other act that might also have contributed to the
death. (See, e.g., People v. Modiri (2006) 39 Cal.4th 481, 493
[“The term ‘personally,’ which modifies ‘inflicts’ . . . does not mean
exclusive [¶] . . . [¶] [N]othing in the terms ‘personally’ or
‘inflicts’ . . . necessarily implies that the defendant must act alone
in causing the victim’s injuries”]; People v. Ollo (2019) 42
Cal.App.5th 1152, 1154-1155, 1158, review granted Mar. 18,
2020, S260130.)
Relying on Hicks v. Oklahoma (1980) 447 U.S. 343,
defendant separately argues the trial court denied him a liberty
interest without due process of law because it denied his petition
without holding an evidentiary hearing. The argument is
meritless because the requisite liberty interest does not exist
here—where defendant is the one petitioning to reduce an
existing, duly imposed criminal sentence. (See Dillon v. United
States (2010) 560 U.S. 817, 826; In re Clark (1993) 5 Cal.4th 750,
780 [constitutional due process guarantees demand appointment
of counsel in postconviction proceedings “if a petition attacking
the validity of a judgment states a prima facie case leading to
issuance of an order to show cause”].) Defendant has a right to
fair procedures, but the right is to those procedures specified by
section 1170.95 itself. And there is no argument by defendant
that those statutory procedures were not adhered to (except
insofar as he contends there was insufficient evidence of his
ineligibility for relief as a matter of law—an argument we have
already rejected).
8
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
9