Filed 3/3/22 P. v. Marroquin CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B309736
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA009519)
v.
RUDY MARROQUIN, JR.,
Defendant and Appellant.
APPEAL from an order of the Los Angeles Superior Court,
Rogelio G. Delgado, Judge. Reversed and remanded.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel C. Chang and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Rudy Marroquin, Jr. (defendant) argues that the trial court
erred in summarily denying his petition for resentencing on his
second degree murder conviction under Penal Code section
1170.95.1 We agree that the summary denial was inappropriate,
and remand for an evidentiary hearing on that conviction.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In August 1991, defendant belonged to the Bassett Grande
street gang. One day that month, defendant and two other gang
members drove to a part of El Monte also claimed by the Puente
street gang. They saw Vincent Anthony Portillo (Portillo). They
confronted Portillo, asking him, “Where are you from?” When
Portillo answered “Puente” and ran away, defendant and Ernie
Hernandez (Hernandez) gave chase. After a brief tussle in a
nearby backyard, defendant pulled Portillo back into the street.
Once there, defendant held Portillo while Hernandez struck
Portillo in the head twice with a bumper jack. After Portillo
collapsed to the ground, Hernandez proceeded to pound Portillo’s
skull eight more times with the jack. Then they drove away. The
blood that splattered their clothing, their car, and the bumper
jack all belonged to Portillo. When defendant was arrested soon
thereafter, he bragged to a fellow inmate that “we really fucked
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
some dudes up.” (People v. Marroquin (July 27, 1994, B073463)
[nonpub. opn.], at pp. 8-9.)
II. Procedural Background
A. Underlying conviction, sentence, and appeal
The People charged defendant and Hernandez with murder
(§ 187, subd. (a)). The People also alleged that defendant and
Hernandez each “personally used a deadly and dangerous
weapon” (the bumper jack) (§ 12022, subd. (b)), and that the
murder was “committed for the benefit of, at the direction of, or
in association with a criminal street gang” (§ 186.22, subd. (b)(1)
& (2)).2
The matter went to trial in October 1992. On this count,
the jury was instructed that it could convict defendant if it found
that he (1) committed the act constituting the murder himself, or
(2) directly “aid[ed] and abet[ted]” the actual perpetrator. On the
2 In the same charging document, the People also charged
defendant and Hernandez with three crimes arising out of a
second, gang-related shooting—namely, (1) murder (§ 187, subd.
(a)), (2) attempted murder (§§ 187, 664), and (3) unlawful
discharge of a firearm at an inhabited dwelling house (§ 246). As
to the murder, the People also alleged a “multiple murder”
special circumstance as to both defendants (§ 190.2, subd. (a)(3));
as to the murder and attempted murder, the People also alleged
both defendants personally used a firearm (§ 12022.5, subd. (a));
as to all three counts, the People also alleged that the crimes
were committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1) &
(2)). The jury convicted defendant and Hernandez of these crimes
and found true the allegations; those convictions were affirmed
on appeal, but the sentences modified to life without the
possibility of parole plus 4 years on the murder, and 12 years and
8 months on the remaining two counts.
3
direct-aiding-and-abetting theory, the jury was instructed that it
could convict defendant only if he aided and abetted “the
commission of a crime” “with knowledge of the unlawful purpose
of the perpetrator” and “with the intent or purpose of committing,
encouraging, or facilitating the commission of the crime.” (Italics
added.) The instructions did not define “the crime.”
During closing argument, the prosecutor argued that
defendant could be guilty of murder as “an aider and abettor.”
He went on to argue that “the persons who commit crimes and
those who aid and abet them are guilty not only for the crime
that they intend to do but . . . for the natural and probable
consequences of what is done.” He concluded by arguing that
defendant and Hernandez “both intended to commit the crime” of
“attack[ing] Portillo” and that “the natural and probable
consequence[] of that attack, of [that] gang attack, is death, and
they knew it.”
The jury convicted defendant of second degree murder,
found true the allegation that Hernandez had personally used the
bumper jack, found not true the allegation that defendant had
personally used the bumper jack, and found the gang allegation
true as to both defendants.
We affirmed the conviction on appeal, but modified the
sentence to 15 years to life.
B. Petition for resentencing
In July 2020, defendant filed a form petition to vacate his
second degree murder conviction under section 1170.95. After
appointing counsel, but before permitting any further briefing or
holding a hearing, the trial court “summarily denied” the
petition. Specifically, the court found that, based on the
preliminary hearing transcript, “the People c[ould] prove
4
[implied] malice” necessary to support the second degree murder
conviction because “defendant held the victim while [Hernandez]
hit the victim over the head with a tire jack ultimately causing
the death of the victim.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because our consideration
of this argument involves questions of law and the application of
that law to undisputed facts, our review is de novo. (Tsasu LLC
v. U.S Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder[ or] murder under the natural and
probable consequences doctrine,” (2) he “was convicted of
murder,” and (3) he “could not presently be convicted of murder
. . . because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).) In January 2019, our
Legislature amended section 188 to provide that “in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought” and that “[m]alice shall not be imputed to a person
based solely on his . . . participation in a crime.” (§ 188, subd.
(a)(3).) Our Legislature’s purpose was to ensure that “[a] person’s
culpability for murder [is] premised upon that person’s own
actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1(g).)
As a threshold matter, we conclude that the trial court
erred in summarily denying defendant’s petition. In People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court held
that if a defendant files a facially compliant petition and requests
5
the appointment of counsel, the trial court must appoint counsel
and entertain further briefing regardless of whether the record of
conviction unequivocally demonstrates that the defendant is not
entitled to relief. (Id. at p. 963.) Here, defendant’s petition was
facially compliant and he requested counsel. Although the trial
court appointed counsel, it did not permit further briefing. Thus,
Lewis dictates the conclusion that the trial court erred in
summarily denying defendant’s petition.
This error was also prejudicial. To be sure, we may
conclude that the summary denial of a section 1170.95 petition is
harmless if relief under section 1170.95 was foreclosed as a
matter of law because the jury’s verdict necessarily rests on a
still-valid theory of liability for murder. (Lewis, supra, 11 Cal.5th
at pp. 971, 974.) But we are unable to conclude that the jury’s
verdict in this case rested on a still valid theory of liability. We
know, from the jury’s findings that Hernandez personally used
the bumper jack and that defendant did not, that the jury
necessarily found Hernandez to be the actual perpetrator of
Portillo’s murder and defendant to be an aider and abettor.
Thus, the question becomes: Can we conclude, as matter of
law, that the jury necessarily found that defendant was a direct
aider and abettor (which is a still-valid theory of murder
liability)? We cannot. In terms of the jury instructions, the jury
was instructed solely on direct aiding and abetting, and was not
specifically instructed on the theory that defendant aided and
abetted a lesser crime (such as assault) whose natural and
probable consequence was murder. However, the direct aiding
and abetting instruction did not spell out which crime it is that
defendant needed to aid and abet; it referred only to the “crime”
generically. The prosecutor—with the trial court’s blessing—
6
availed himself of that ambiguity by arguing in closing that
defendant aided and abetted the underlying assault of Portillo,
the natural and probable consequence of which was murder.
Because a person found guilty of murder under a natural and
probable consequences theory need only intend to aid some lesser
crime, such a person can be liable for murder even when their
malice is imputed; as a consequence, the natural and probable
consequences theory is no longer valid to support a murder
conviction. (§§ 188, 189, subds. (e), (f), 1170.95.) Although a
prosecutor’s argument cannot add brand new theories of liability
to the jury instructions (and thereby call into question the basis
for a jury’s verdict), the direct aiding and abetting instruction in
this case was sufficiently open ended that it was “reasonably
susceptible to the prosecutor’s argument” (e.g., People v. Medellin
(2020) 45 Cal.App.5th 519, 533), and thereby functioned to
present this theory to the jury for its consideration (see, e.g.,
People v. Morgan (2007) 42 Cal.4th 593, 611-613 [prosecutor’s
argument, if within the ambit of the instructions, can inject a
second, invalid theory of liability]). Because the jury’s general
verdict did not require the jury to specify the specific theory of
liability it selected, we cannot determine as a matter of law that
defendant’s second degree murder conviction rests on a still-valid
theory of liability.
The People resist this conclusion with what boil down to
two arguments.
First, the People assert that the natural and probable
consequences theory was not presented to the jury because the
specific instruction for that theory was never given; because the
jury was specifically instructed to “follow [the] instructions” over
“anything” “conflict[ing]” “concerning the law said by the
7
attorneys in their arguments”; and because we presume that
jurors follow the instructions (e.g., People v. Holt (1997) 15
Cal.4th 619, 662). This assertion might have carried the day if
the direct aiding and abetting instruction that was given in this
case had “conflicted” with the prosecutor’s argument, but it did
not: Instead, the instruction referred to directly aiding and
abetting a “crime,” but did not spell out whether that crime had
to be the murder or instead some lesser crime (like assault) of
which murder was a natural and probable consequence. It is this
very uncertainty that renders the direct aiding and abetting
argument susceptible to—and hence consistent with—the
prosecutor’s argument. Indeed, the trial court and even
Hernandez’s counsel agreed that the prosecutor was free to argue
the natural and probable consequences theory under the
instructions ultimately given. The People also seem to suggest
that the prosecutor’s mention of “natural and probable
consequences” was in relation to the “implied malice” instruction,
and hence did not really put the natural and probable
consequences theory before the jury. We reject this suggestion,
as it ignores the prosecutor’s own words: That defendant aided
and abetted Hernandez’s “attack” on Portillo, and that “the
natural and probable consequence of that attack, of [that] gang
attack, is death . . . .”
Thus, the facts of this case are unlike the facts in People v.
Cortes (Feb. 15, 2022, B312185) __ Cal.App.5th __ [2022 Cal.App.
Lexis 117] (Cortes). In Cortes, the court rejected the argument
that the prosecutor’s one-time reference to “natural and probable
consequences” put the natural and probable consequences theory
of murder liability before the jury where there was no jury
instruction on that theory. In Cortes, the prosecutor “did not
8
argue at any point during the trial, including closing argument,
that a crime other than murder . . . was committed” and did not
name any predicate crime such as “assault with a deadly
weapon.” (Id. at *12.) Here, the prosecutor specifically and
repeatedly urged that the “crime” of “gang attack” on Portillo was
committed, and that defendant was liable for murder as a natural
and probable consequence of that lesser crime.
Second, the People contend that the direct aiding and
abetting instruction is not consistent with a natural and probable
consequences theory because that instruction did not spell out
the “target” crime (that is, the lesser crime that defendant would
need to aid and abet and whose natural and probable
consequence would be murder). Although our Supreme Court in
People v. Prettyman (1996) 14 Cal.4th 248, 264-267 (Prettyman)
established the requirement that a natural and probable
consequences instruction specify the target crime, Prettyman did
not do so until 1996—which is four years after the trial in this
case. At the time of this trial, even the pattern CALJIC jury
instruction did not require the target crime to be specified. As a
result, the absence of a target crime in the instruction was of no
consequence at the time this case was tried.
For these reasons, the trial court erred in summarily
denying defendant’s section 1170.95 petition. Our conclusion
that defendant’s claim is not foreclosed as a matter of law is
meant to express no opinion on the underlying merits of
defendant’s petition—that is, whether the trial court after an
evidentiary hearing may independently find that the People have
proven beyond a reasonable doubt that defendant directly aided
and abetted Hernandez by holding Portillo while Hernandez
repeatedly beat him in the head with the bumper jack.
9
DISPOSITION
The order is reversed and remanded for an evidentiary
hearing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
10