Filed 9/15/23 P. v. Ruiz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E079870
v. (Super.Ct.No. FWV036076)
REYNALDO RUIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael R.
Libutti, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Lynne M.
McGinnis and James M. Toohey, Deputy Attorney Generals, for Plaintiff and
Respondent.
1 In February 2007, a jury found defendant and appellant Reynaldo Ruiz guilty of
attempted murder (Pen. Code,1 §§ 187, subd. (a), 664, subd. (a)); robbery (§ 211); and
participating in a criminal street gang (§ 186.22, subd. (a)). The jury found true the
special circumstance that the attempted murder was committed willfully, deliberately,
and with premeditation. (§§ 189, 664, subd. (a).) The jury also found various firearm
and gang enhancements true. The jury found that defendant’s codefendant, Marco
Antonio Ruiz (Brother), personally discharged a firearm causing injury to the victim.
The trial court sentenced defendant to prison for life with the possibility of parole plus a
consecutive term of 25 years to life (§ 12022.53, subds. (d) & (e)(1)).2
In January 2022, defendant petitioned the trial court for resentencing, arguing
that he was convicted of attempted murder under the natural and probable consequences
doctrine, which is no longer a recognized crime. (Former § 1170.95, subd. (a).)3 The
trial court found that defendant failed to establish a prima facie case for relief and
denied the petition. Defendant contends the trial court erred by finding he did not make
a prima facie case. We affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The sentencing minute order incorrectly calculates defendant’s total sentence as life with the possibility of parole—mistakenly omitting the consecutive term of 25 years to life. However, the abstract of judgment is accurate.
3 Section 1170.95 has been renumbered section 1172.6. We cite section 1170.95 because that was the statute in effect at the time defendant filed his petition in the trial court.
2 FACTUAL AND PROCEDURAL HISTORY
A. DEFENDANT’S CRIMES
On Halloween night 2005, the victim and his friend (Friend) were in a liquor
store parking lot when defendant; Brother, who is defendant’s younger brother; and two
of their gang associates arrived in the parking lot. (People v. Ruiz (May 15, 2009,
E042886) [nonpub. opn.] [2009 WL 1362283, *2-3, 9].) Defendant asked the victim
and Friend where they were from and ultimately robbed the victim and Friend. (Id. at p.
*2.) As the victim and Friend ran toward the liquor store after being robbed, Brother
shot the victim in his back. (Id. at p. *3.)
B. PROSECUTOR’S CLOSING ARGUMENT
During closing arguments to the jury, the prosecutor argued, “Why do you shoot
someone who’s running away from you? Why do you shoot someone who you’ve
already robbed? Why? To eliminate witnesses. Gang members don’t shoot to injure.
Gang members shoot to kill. And that’s exactly what happened in this case.” The
prosecutor continued, “Why would [Brother] shoot a guy that they’ve already robbed?
He’s running away. He’s going back into the liquor store, right? They’ve already
robbed him. . . . [¶] . . . Because they’re trying to kill him.”
C. DIRECT APPEAL
In defendant’s direct appeal from his convictions, he asserted that there was not
substantial evidence to support the intent to kill element of his attempted murder
conviction. (People v. Ruiz, supra, [2009 WL 1362283, *8].) This court rejected that
contention. (Id. at p. *9.) In a footnote to that analysis, this court wrote, “The
3 prosecution did not rely upon the natural and probable consequences doctrine in
charging [defendant] or [Brother] with the attempted murder. Specifically, the
prosecution did not allege that [Brother] or [defendant] intended to commit some other
target crime of which the attempted murder was a natural and probable consequence.
Instead, the prosecution proceeded upon the theory that the attempted murder was itself
the intended crime.” (Id. at p. *8, fn. 3.)
D. DEFENDANT’S PETITION
Defendant’s petition for resentencing consisted of marking the boxes on a form
indicating that he met the statutory requirements for relief and attaching his abstract of
judgment to the form.
E. PEOPLE’S OPPOSITION
In opposing defendant’s petition, the People asserted that the laws had changed
to no longer permit an attempted murder conviction under a natural and probable
consequences theory, but the prosecution did not rely upon a natural and probable
consequences theory in defendant’s case. Rather, the prosecution presented a theory of
direct aiding and abetting, which remains a valid theory of attempted murder.
F. DEFENDANT’S REPLY
In defendant’s reply, he contended the jury did not explicitly find that he
intended to kill the victim because the jury was inadequately instructed on aiding and
abetting. The trial court denied defendant’s petition.
4 DISCUSSION
Defendant contends the trial court erred by finding his petition did not set forth a
prima facie case for relief.
The resentencing statute provided, “A person convicted of . . . attempted murder
under the natural and probable consequences doctrine . . . may file a petition with the
court that sentenced the petitioner to have the petitioner’s . . . attempted murder . . .
conviction vacated and to be resentenced on any remaining counts.” (Former
§ 1170.95, subd. (a).)
The natural and probable consequences doctrine refers to a situation in which
“ ‘a person who knowingly aided and abetted a crime, the natural and probable
consequence of which was murder or attempted murder, could be convicted of not only
the target crime but also of the resulting murder or attempted murder. [Citations.]
“This was true irrespective of whether the defendant harbored malice aforethought.
Liability was imposed ‘ “for the criminal harms [the defendant] . . . naturally, probably,
and foreseeably put in motion.” ’ ” ’ ” (People v. Lee (2020) 49 Cal.App.5th 254, 261.)
The natural and probable consequences doctrine is no longer a valid theory for an
attempted murder conviction. (People v. Offley (2020) 48 Cal.App.5th 588, 595.)
However, direct aiding and abetting remains a valid theory for attempted murder. (Id. at
p. 595-596.) Direct aiding and abetting means the defendant had the mental state
required for murder, e.g., intent to kill. (People v. McCoy (2001) 25 Cal.4th 1111,
1117-1118.)
5 When determining if a defendant is entitled to relief under former section
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Filed 9/15/23 P. v. Ruiz CA4/2
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 TWO
THE PEOPLE,
Plaintiff and Respondent, E079870
v. (Super.Ct.No. FWV036076)
REYNALDO RUIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael R.
Libutti, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Lynne M.
McGinnis and James M. Toohey, Deputy Attorney Generals, for Plaintiff and
Respondent.
1 In February 2007, a jury found defendant and appellant Reynaldo Ruiz guilty of
attempted murder (Pen. Code,1 §§ 187, subd. (a), 664, subd. (a)); robbery (§ 211); and
participating in a criminal street gang (§ 186.22, subd. (a)). The jury found true the
special circumstance that the attempted murder was committed willfully, deliberately,
and with premeditation. (§§ 189, 664, subd. (a).) The jury also found various firearm
and gang enhancements true. The jury found that defendant’s codefendant, Marco
Antonio Ruiz (Brother), personally discharged a firearm causing injury to the victim.
The trial court sentenced defendant to prison for life with the possibility of parole plus a
consecutive term of 25 years to life (§ 12022.53, subds. (d) & (e)(1)).2
In January 2022, defendant petitioned the trial court for resentencing, arguing
that he was convicted of attempted murder under the natural and probable consequences
doctrine, which is no longer a recognized crime. (Former § 1170.95, subd. (a).)3 The
trial court found that defendant failed to establish a prima facie case for relief and
denied the petition. Defendant contends the trial court erred by finding he did not make
a prima facie case. We affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The sentencing minute order incorrectly calculates defendant’s total sentence as life with the possibility of parole—mistakenly omitting the consecutive term of 25 years to life. However, the abstract of judgment is accurate.
3 Section 1170.95 has been renumbered section 1172.6. We cite section 1170.95 because that was the statute in effect at the time defendant filed his petition in the trial court.
2 FACTUAL AND PROCEDURAL HISTORY
A. DEFENDANT’S CRIMES
On Halloween night 2005, the victim and his friend (Friend) were in a liquor
store parking lot when defendant; Brother, who is defendant’s younger brother; and two
of their gang associates arrived in the parking lot. (People v. Ruiz (May 15, 2009,
E042886) [nonpub. opn.] [2009 WL 1362283, *2-3, 9].) Defendant asked the victim
and Friend where they were from and ultimately robbed the victim and Friend. (Id. at p.
*2.) As the victim and Friend ran toward the liquor store after being robbed, Brother
shot the victim in his back. (Id. at p. *3.)
B. PROSECUTOR’S CLOSING ARGUMENT
During closing arguments to the jury, the prosecutor argued, “Why do you shoot
someone who’s running away from you? Why do you shoot someone who you’ve
already robbed? Why? To eliminate witnesses. Gang members don’t shoot to injure.
Gang members shoot to kill. And that’s exactly what happened in this case.” The
prosecutor continued, “Why would [Brother] shoot a guy that they’ve already robbed?
He’s running away. He’s going back into the liquor store, right? They’ve already
robbed him. . . . [¶] . . . Because they’re trying to kill him.”
C. DIRECT APPEAL
In defendant’s direct appeal from his convictions, he asserted that there was not
substantial evidence to support the intent to kill element of his attempted murder
conviction. (People v. Ruiz, supra, [2009 WL 1362283, *8].) This court rejected that
contention. (Id. at p. *9.) In a footnote to that analysis, this court wrote, “The
3 prosecution did not rely upon the natural and probable consequences doctrine in
charging [defendant] or [Brother] with the attempted murder. Specifically, the
prosecution did not allege that [Brother] or [defendant] intended to commit some other
target crime of which the attempted murder was a natural and probable consequence.
Instead, the prosecution proceeded upon the theory that the attempted murder was itself
the intended crime.” (Id. at p. *8, fn. 3.)
D. DEFENDANT’S PETITION
Defendant’s petition for resentencing consisted of marking the boxes on a form
indicating that he met the statutory requirements for relief and attaching his abstract of
judgment to the form.
E. PEOPLE’S OPPOSITION
In opposing defendant’s petition, the People asserted that the laws had changed
to no longer permit an attempted murder conviction under a natural and probable
consequences theory, but the prosecution did not rely upon a natural and probable
consequences theory in defendant’s case. Rather, the prosecution presented a theory of
direct aiding and abetting, which remains a valid theory of attempted murder.
F. DEFENDANT’S REPLY
In defendant’s reply, he contended the jury did not explicitly find that he
intended to kill the victim because the jury was inadequately instructed on aiding and
abetting. The trial court denied defendant’s petition.
4 DISCUSSION
Defendant contends the trial court erred by finding his petition did not set forth a
prima facie case for relief.
The resentencing statute provided, “A person convicted of . . . attempted murder
under the natural and probable consequences doctrine . . . may file a petition with the
court that sentenced the petitioner to have the petitioner’s . . . attempted murder . . .
conviction vacated and to be resentenced on any remaining counts.” (Former
§ 1170.95, subd. (a).)
The natural and probable consequences doctrine refers to a situation in which
“ ‘a person who knowingly aided and abetted a crime, the natural and probable
consequence of which was murder or attempted murder, could be convicted of not only
the target crime but also of the resulting murder or attempted murder. [Citations.]
“This was true irrespective of whether the defendant harbored malice aforethought.
Liability was imposed ‘ “for the criminal harms [the defendant] . . . naturally, probably,
and foreseeably put in motion.” ’ ” ’ ” (People v. Lee (2020) 49 Cal.App.5th 254, 261.)
The natural and probable consequences doctrine is no longer a valid theory for an
attempted murder conviction. (People v. Offley (2020) 48 Cal.App.5th 588, 595.)
However, direct aiding and abetting remains a valid theory for attempted murder. (Id. at
p. 595-596.) Direct aiding and abetting means the defendant had the mental state
required for murder, e.g., intent to kill. (People v. McCoy (2001) 25 Cal.4th 1111,
1117-1118.)
5 When determining if a defendant is entitled to relief under former section
1170.95, a court examines the record of conviction. (People v. Offley, supra, 48
Cal.App.5th at p. 597.) The record of conviction includes “ ‘documents reliably
reflecting the facts of the offense for which the defendant was convicted.’ ” (People v.
Trujillo (2006) 40 Cal.4th 165, 177.) For example, a trial transcript is part of the record
of conviction. (Ibid.)
The record reflects defendant was convicted under a theory of direct aiding and
abetting, i.e., with an intent to kill. During closing argument to the jury, the prosecutor
argued that the robbery had been completed before the attempted murder occurred, so
the two were separate crimes. The prosecutor contended that, at the time of the
shooting, the intent was to kill the victim. That means defendant was not convicted
under a theory of natural and probable consequences. Therefore, defendant is not
entitled to relief under former section 1170.95. (People v. Estrada (2022) 77
Cal.App.5th 941, 945 [similar conclusion].)
Defendant contends the trial court erred by not granting an order to show cause
because the aiding and abetting instruction (CALJIC No. 3.00) given to the jury was
ambiguous. The instruction provided, “Persons who are involved in committing a crime
are referred to as principals in that crime. Each principal, regardless of the extent or
manner of participation is equally guilty. Principals include: [¶] 1. Those who directly
and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the
commission of the crime.” (CALJIC No. 3.00, italics added.) Defendant contends the
6 words “equally guilty” are problematic because they “prevented the jury from deciding
the level of culpability of [defendant] and [Brother] independent of each other.”
The jury was instructed that an aider and abettor must act “[w]ith the intent or
purpose of committing or encouraging or facilitating the commission of the crime.”
(CALJIC No. 3.01.) The jury was also instructed that “a clear, deliberate intent to kill”
is necessary for first degree murder. (CALJIC No. 8.67.) Between those two
instructions, the jury was informed that an accomplice must act with the intent or
purpose of encouraging the principal with an intentional act of killing. Given that the
instruction (CALJIC No. 3.01) described a separate intent finding for an accomplice, it
is not reasonable that the jury believed it could substitute Brother’s intent for
defendant’s intent. (See People v. Johnson (2016) 62 Cal.4th 600, 640-641 [similar
conclusion].)
Next, defendant contends the trial court erred by denying his petition because,
during trial, the prosecution’s gang expert testified that defendant acted with the specific
intent to benefit defendant’s gang. Defendant asserts such testimony was improper
because it was not presented to the jury in a hypothetical format.
“ ‘ “Our jurisdiction on appeal is limited in scope to the notice of appeal and the
judgment or order appealed from.” [Citation.] We have no jurisdiction over an order
not mentioned in the notice of appeal.’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 75.)
Defendant’s notice of appeal is limited to the order denying his petition for
resentencing. “The mere filing of a section 1170.95 petition does not afford the
petitioner a new opportunity to raise claims of trial error.” (People v. Farfan (2021) 71
7 Cal.App.5th 942, 947.) Defendant’s contention about the gang expert’s testimony raises
an issue of alleged trial error, which goes beyond the parameters of the trial court’s
ruling that defendant failed to present a prima facie case in his section 1170.95 petition.
Accordingly, it is not a matter that we can address in this appeal.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.