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People v. Cruz

California Court of Appeals, Second District, Fourth Division
Aug 22, 2023
No. B321767 (Cal. Ct. App. Aug. 22, 2023)

Opinion

B321767

08-22-2023

THE PEOPLE, Plaintiff and Respondent, v. JOSE CRUZ, Defendant and Appellant.

Edward J. Haggerty, 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, Senior Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BA048265, H. Clay Jacke II, Judge. Affirmed.

Edward J. Haggerty, 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, Senior Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

CURREY, P. J.

INTRODUCTION

In 1993, a jury convicted defendant and appellant Jose Cruz of first degree murder and found he personally used a firearm in the commission of the offense. In 2021, Cruz filed a petition for recall and resentencing on his murder conviction under former Penal Code section 1170.95. The trial court denied relief, concluding Cruz was ineligible as a matter of law because he was the actual killer. On appeal, Cruz argues the court erred because it was possible for the jury to have convicted him of murder without finding he was the actual killer. We reject this contention and affirm the order denying relief.

All undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. All further references to the statute will be to the new section number.

PROCEDURAL BACKGROUND

The jury that convicted Cruz of first degree murder (§ 187, subd. (a)) found Cruz committed the murder during a robbery (§ 190.2, subd. (a)(17)), and that Cruz personally used a firearm in the commission of the murder (§ 12022.5, subd. (a)). The trial court sentenced Cruz to life without the possibility of parole, enhanced by three years for the firearm use. The court sentenced Cruz concurrently on the remaining counts and allegations. In 1997, a different panel of this court affirmed the judgment in case number B080838.

The jury also convicted Cruz of three counts of second degree robbery (§ 211), one count of attempted robbery (§§ 211, 664), one count of assault with a firearm (§ 246, subd. (a)(2)), and found firearm allegations true on several of those counts.

The jury convicted Cruz's co-defendant, Jose Diaz, of first degree murder, two counts of second degree robbery, one count of attempted second degree robbery, and one count of assault with a firearm. It also found Diaz used a knife in the commission of the attempted robbery.

We granted Cruz's motion to augment the current appellate record to include the appellate record from case number B080838.

In 2021, Cruz filed a petition for resentencing under section 1172.6. The trial court appointed counsel on Cruz's behalf. The parties filed briefs, and the trial court set a prima facie hearing. At the hearing, the court denied the petition, concluding the record demonstrated Cruz was ineligible for relief as a matter of law because he was the actual killer. Cruz timely appealed.

FACTUAL BACKGROUND

The following is taken from our opinion resolving Cruz's direct appeal. We include this information solely to provide background and context for the parties' arguments, and do not rely on it to resolve this appeal. (See People v. Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.)

[Cruz] was prosecuted for a series of robberies at automated teller machines[, which took place] on the night and early morning of November 2 and 3, 1991. This appeal concerns only the fourth and last incident. He does not deny that he killed the victim, John O'Brien, but argues that the shooting took place after the completed robbery of his wife, Joanne O'Brien.

At 2:20 a.m. on November 3, 1991, Joanne O'Brien left the pub where she was working with her husband, John O'Brien[,] and a friend, Gerald Keogh. Joanne was driving, her husband was in the front passenger seat, and Mr. Keogh was in the back seat ....Joanne parked on Sunset Boulevard in front of a Security Pacific Bank at the corner of Stanley and Sunset. She went to the automated teller machine (ATM) to make a deposit of $60 or $80 in cash while John and Gerald waited in her car.

While at the ATM, Joanne saw a man staggering across Stanley toward her. At the same time, another man came from around the corner of the building with a drawn gun. The man who had staggered across the street joined the man with the gun at the ATM. The gunman put the gun into Joanne's right side and said[,] "Give me $200." He added, "Don't make me shoot you" or "Don't make me kill you." At first, Joanne claimed that her account did not have $200, but then realized that her balance was sufficient, and withdrew the $200 and gave it to the robbers. One of the robbers also took the cash she intended to deposit.

As Joanne returned to her car, John was getting out and coming toward her. She told him to get back in because one of the men had a gun. Joanne and John got into the car and John asked if she had been robbed. She told him she had, and how much had been taken. John again tried to leave the car, she pulled him back, but he pulled away and got out as Joanne was accelerating down Sunset Boulevard ....

Joanne drove by a 7-11 Store, then came back to Sunset Boulevard and made a U-turn to go east toward the bank on Sunset. She saw Gerald standing at a phone at a restaurant (Joanne had not realized that Gerald had gotten out of the car). She pulled to the curb. Joanne saw John ahead of her, crossing [halfway] across Stanley, toward two men who were standing on the corner.

John was approached by the two men and said something Joanne could not hear. The two men shrugged their shoulders. Then the gunman came around the corner with a gun, put the gun in John's stomach, put his left arm on John's right shoulder and walked John around the corner out of sight. During trial, Joanne identified [Cruz] as the gunman. She also identified him as one of the robbers at the ATM.

After [Cruz] disappeared around the corner with John, Joanne heard four or five gunshots. She screamed, reversed her car westbound on Sunset and blew the horn. She went back to the 7-11 and asked someone to call the police because her husband had been shot. Someone from the 7-11 went back to the corner of Sunset and Stanley with Joanne, where she saw John lying face down on the ground. Later, at the hospital, Joanne was told that John was dead.

Gerald Keogh's testimony was similar. He saw only one man at the ATM with Joanne, but told John that he thought Joanne was in trouble. When Joanne came back to the car, one of the men followed her and pointed a gun at Gerald. After John got out of the car, Gerald jumped out and ran to look for a phone to report the robbery to the police. As he ran past the bank to the telephone at a restaurant, he saw two men standing at the bank. While he was on the telephone, Joanne, accompanied by a stranger, ran up to him and said John had been shot. Gerald was not sure whether he had heard the gunshots.

Thirty seconds or a minute before Joanne and the stranger ran up to him, Gerald saw the two men he had seen on the corner at the bank walk past him very fast. They went down a side street. Gerald did not see the men get into a vehicle.

[¶]. . . [¶Mark St. James and his friend, Matthew Posey, were at a party near the corner of De Longpre Street and Spaulding Avenue when John O'Brien was shot. This location was one block west and one block south of the ATM. They heard the gunshots, then saw three men running south on Spaulding to a Ford Aerostar van, which was parked where St. James and Posey were standing. They saw the three men get into the van and drive away.

[Cruz's] brother-in-law, Luis Miranda, testified that he was with [Cruz] and Jose Francisco Diaz on the night in question. They were driving in [Cruz's] Ford Aerostar van. He saw [Cruz] and Diaz grabbing a woman at an ATM. He saw her go to a jeep. A man came up and spoke to Miranda and Diaz, but Miranda could not understand what they were saying because they spoke in English, which he does not speak. [Cruz] came up to the man and grabbed him. Miranda saw [Cruz] and the man swinging at each other, and then "hugging" and then he heard a gunshot. He saw the man fall to the ground. Miranda ran a block to a block and one-half and saw [Cruz] and Diaz in [Cruz's] Ford Aerostar van. They told him to get in and they drove away. (People v. Cruz (Jan. 12, 1997, B080838) [nonpub. opn.].)

DISCUSSION

I. Governing Law

The Legislature enacted Senate Bill 1437 (SB 1437) "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." (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959.)

SB 1437 also added section 1170.95 to the Penal Code which, as mentioned above, was later renumbered to section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This section permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437's changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).) A petition for relief under section 1172.6 must include a declaration by the petitioner that he or she is eligible for relief based on all the requirements of subdivision (a), the superior court case number and year of the petitioner's conviction, and a request for appointment of counsel, should the petitioner seek appointment. (§ 1172.6, subd. (b)(1).)

Subdivision (c) of section 1172.6 provides: "Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor's response is served. These deadlines shall be extended for good cause. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so."

II. Analysis

Cruz argues the trial court erred by concluding he was ineligible for relief as a matter of law as the actual killer. Specifically, he argues it was possible for the jury to have convicted him of murder without finding he personally killed the victim. We are not persuaded.

Although the trial court instructed the jury on aiding and abetting liability and the natural and probable consequences doctrine, the jury was also given the following special instruction that was specific only to codefendant Diaz: "You cannot find the defendant Francisco Diaz guilty of murder as an aider and abettor, as a natural and probable consequence of robbery, unless you are convinced beyond a reasonable doubt that the murder occurred before the robbery had ended." Critically, the jury was given no such special instruction relating to Cruz. It is clear from these instructions that the prosecution proceeded, and the jury indeed convicted Cruz, on the theory that he was the actual killer.

This conclusion is further supported by other parts of the record. The prosecution argued to the jury: "There is no argument that Diaz did actually kill John O'Brien on the part of the People. The evidence is clear, Cruz killed John O'Brien." Consistent with this theory, the prosecution alleged, and the jury found, Cruz personally used a firearm in the commission of the murder. No such weapon use was alleged with respect to Diaz. Indeed, defense counsel, during closing argument, when attempting to persuade the jury to convict Cruz of second degree murder or manslaughter (rather than first degree murder), apparently conceded Cruz was the actual killer.

For example, defense counsel argued during closing: "If you think that Cruz was, that he killed this guy, and he did, that there was malice there, then you call it a second [degree murder] ...." (Italics added.)

Cruz argues the record of conviction does not establish he was the actual killer because the term "actual killer" under section 189, subdivision (e)(1), is defined as the person who "personally and intentionally killed" the victim, but the instruction on first degree felony murder (CALJIC No. 8.80.1) given at trial permitted a murder conviction based on an accidental shooting if the killing was a direct causal result of the robbery. We disagree. An "actual killer" refers simply to the person who "personally killed" the victim. (People v. Vang (2022) 82 Cal.App.5th 64, 89, 91 (Vang).) Even assuming Cruz personally committed an unintentional or accidental shooting that directly caused the victim's death, he was still the actual killer as defined in section 189, subdivision (e)(1). (See Vang, supra, 82 Cal.App.5th at p. 88 [explaining the actual killer, i.e., the individual who personally committed the homicidal act, is still liable for murder under current law]; § 189, subd. (e)(1) [plainly stating the "actual killer" is still liable for murder under current law, making no qualification that murder liability for actual killers is precluded if the killing was unintentional or accidental].)

We separately note it was undisputed at trial that John O'Brien died from three gunshot wounds, strongly suggesting the killing was indeed intentional.

We reject Cruz's counsel's contention, raised for the first time during oral argument, that remand is warranted to consider the factual question of whether the victim killed himself accidentally by causing the gun to discharge while struggling with Cruz, rather than being killed by Cruz. Cruz forfeited this argument by not raising it in a timely manner. (In re I.C. (2018) 4 Cal.5th 869, 888, fn. 5.)

Cruz next argues the trial court improperly relied on the factual summary in the direct appeal opinion to deny the petition at the prima facie stage. We reject this contention. In our review of the record, it does not appear the trial court relied on the facts in the direct appeal opinion. Rather, in issuing its ruling, the court noted it could "not go to the Court of Appeal opinion . . . to resolve contested facts."

Additionally, as discussed above, the trial court's ultimate ruling was legally correct. We would therefore affirm it even assuming the trial court had in part relied improperly on the direct appeal opinion. (People v. Brooks (2017) 3 Cal.5th 1, 39 ["'"we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm"'"].)

Cruz lastly argues statements made by his counsel on direct appeal (conceding Cruz was the actual killer) do not judicially estop him from seeking resentencing relief under section 1172.6. Because we conclude the trial court's ruling was correct for the reasons discussed above, we need not address this contention.

DISPOSITION

The order denying Cruz's section 1172.6 petition is affirmed.

We concur: MORI, J. ZUKIN, J.


Summaries of

People v. Cruz

California Court of Appeals, Second District, Fourth Division
Aug 22, 2023
No. B321767 (Cal. Ct. App. Aug. 22, 2023)
Case details for

People v. Cruz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE CRUZ, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Aug 22, 2023

Citations

No. B321767 (Cal. Ct. App. Aug. 22, 2023)