Opinion
B330290
07-01-2024
THE PEOPLE, Plaintiff and Respondent, v. RUDY MARROQUIN, JR., Defendant and Appellant.
James Koester, 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, Michael C. Keller, John Yang and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. KA009519 Rogelio G. Delgado, Judge. Affirmed.
James Koester, 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, Michael C. Keller, John Yang and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
HOFFSTADT, J.
Rudy Marroquin, Jr. (defendant), was convicted of second degree murder (Pen. Code, § 187, subd. (a)). Defendant now appeals from an order denying his petition for resentencing under section 1172.6 following an evidentiary hearing. His arguments on appeal border on the frivolous, so we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We therefore refer to the law formerly codified at section 1170.95 as section 1172.6.
FACTS AND PROCEDURAL BACKGROUND
Some of the facts are phrased similarly to what we set forth in our prior, nonpublished appellate opinion affirming defendant's conviction on appeal (People v. Marroquin et al. (Jul. 27, 1994, B073463) [nonpub. opn.]), but we have independently verified those facts against the trial transcript.
A. The underlying crime
In August 1991, defendant was a member of the Bassett Grande street gang. One day that month, he and two friends who were members or associates of the same gang-Ernie Hernandez (Ernie) and Larry Hernandez (Larry)-drove into a part of El Monte claimed by their rivals, the Puente street gang. They saw Anthony Portillo (Portillo). They confronted Portillo with the archetypical gang challenge, "Where are you from?" When Portillo answered "Puente" and ran away, defendant and Ernie gave chase. Someone yelled, "Get him, get him," and "Bassett." After a brief tussle in a nearby backyard, defendant pulled Portillo back towards the street. Once there, Portillo pleaded, "No, please don't, stop, stop," and "Please, let me go, stop." Ignoring Portillo's pleas, defendant held Portillo still while Ernie struck Portillo in the head twice with a bumper jack. After Portillo collapsed to the ground, Ernie proceeded to pound Portillo's skull eight more times with the jack as defendant watched. Defendant and the others left the scene, washed Portillo's blood off their car and their clothes, and then went to grab a burger. After his arrest, defendant bragged to a fellow inmate that "we really fucked some dudes up."
Because defendant's cohorts share the same last name, we use their first names for clarity. We mean no disrespect.
Just one week earlier, defendant and Ernie drove into rival gang territory, parked, and approached two rival gang members on foot, shot at both of them, and fled while yelling, "Bassett ese." One victim died; the other survived.
B. Charging, conviction, and appeal
The People charged defendant and Ernie with the murder of Portillo (§ 187, subd. (a)). The People also alleged that defendant and Ernie 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, subds. (b)(1) &(b)(2)).
In the same charging document, the People also charged defendant and Ernie with three crimes and sentencing enhancements arising out of the shooting the week earlier. Among other things, the jury convicted defendant of murder (§ 187, subd. (a)) and attempted murder (§§ 187, 664). Because defendant's section 1172.6 petition does not seek resentencing on any of these additional convictions, we do not discuss them further.
The jury convicted defendant of second degree murder, found that the bumper jack had been personally used by Ernie (but not defendant), and found the gang allegation true as to both defendant and Ernie.
We affirmed the conviction on appeal, but modified the sentence to 15 years to life.
II. Procedural Background
On July 27, 2020, defendant filed a petition seeking resentencing under section 1172.6. The trial court summarily denied the petition. We reversed the summary denial because the record of conviction did not otherwise compel a finding "as a matter of law that defendant's second degree murder conviction rests on a still-valid theory of liability." (People v. Marroquin (Mar. 3, 2022, B309736) [nonpub. opn.].)
Following briefing on remand, the trial court held an evidentiary hearing on April 25, 2023. Neither side presented any new evidence, choosing instead to rely on the record from the 1992 trial. After entertaining argument, the trial court found defendant to be guilty of second degree murder beyond a reasonable doubt under two still-valid theories of liability- namely, (1) defendant aided and abetted an "express malice" murder by helping Ernie kill Portillo while defendant personally harbored an the intent to kill, and (2) defendant aided and abetted an "implied malice" murder by helping Ernie kill Portillo while defendant personally harbored a reckless indifference to the value of human life. Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying him relief under section 1172.6.
In 2018, our Legislature amended the definition of "murder" in California to preclude a jury from "imput[ing]" the "malice" element of that crime "based solely on [a defendant's] 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 amended and as pertinent here, liability for murder is limited to persons (1) who are the actual killer, or (2) who aided and abetted the actual killer while personally acting with express or implied malice. (§ 188, subd. (a)(3); People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy) [aiding and abetting express malice murder is a valid theory]; People v. Gentile (2020) 10 Cal.5th 830, 850 [aiding and abetting implied malice murder is still a valid theory], abrogated on other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) "Express" malice means acting with the intent to kill (§ 188, subd. (a)(1)), while "implied" malice means acting with knowledge that direct perpetrator has engaged in an act "'dangerous to human life [and] in conscious disregard for human life'" (id., subd. (a)(2); People v. Reyes (2023) 14 Cal.5th 981, 991 (Reyes)). Section 1172.6 is the procedural vehicle by which persons convicted in now-final judgments can seek to vacate convictions that do not satisfy the now-current definition of "murder."
Where, as here, a defendant has made a prima facie showing of entitlement to relief under section 1172.6, where the trial court has convened an evidentiary hearing, and where the trial court has independently found the defendant guilty of murder under a still-valid theory (see § 1172.6, subd. (d)(3)), our task is limited to assessing whether the trial court's findings are supported by substantial evidence. (Reyes, supra, 14 Cal.5th at p. 988.) Under this standard of review, we view the evidence in the light most favorable to the court's finding, drawing all reasonable inferences in support of that finding. (People v. Kraft (2000) 23 Cal.4th 978, 1035 .)
The trial court's finding that defendant is guilty of murder because he aided and abetted Ernie in Portillo's killing while acting with express malice or implied malice is supported by substantial evidence.
To be an aider and abettor, generally, a defendant must engage in acts that aid in the commission of the crime. (Reyes, supra, 14 Cal.5th at p. 991.) Substantial evidence supports the court's finding that defendant initiated the encounter with Portillo by issuing a gang challenge, chased Portillo down, and held Portillo upright while Ernie struck him with the bumper jack twice. These acts assisted Ernie in killing Portillo.
To aid and abet a murder, a defendant must either (1) share the perpetrator's intent to kill; or (2) know that the perpetrator was going to commit a "life-endangering act," intend to aid the perpetrator with that act, and know that the act is "'dangerous to human life, and act[] in conscious disregard for human life.'" (Reyes, supra, 14 Cal.5th at p. 991; McCoy, supra, 25 Cal.4th at p. 1118.) Substantial evidence supports the court's finding that defendant acted with the intent to kill. Defendant drove into rival gang territory with others who belonged to or were affiliated with his gang and issued a gang challenge just one week after driving into another rival gang's territory and opening fire on two of the rival gang's members. (E.g., People v. Hill (2024) 100 Cal.App.5th 1055, 1070-1071 (Hill) ["evidence of motive" is "often probative" of "intent to kill"].) Substantial evidence also supports the court's alternative finding that defendant acted with implied malice. By the time Ernie retrieved the bumper jack as defendant held Portillo, defendant knew that Ernie was going to commit the life-endangering act of smashing the jack into Portillo's head; defendant intended to aid Ernie in that act because he held Portillo while Ernie slammed the jack into Portillo's head; and defendant knew that smashing a heavy blunt object into another person's skull is dangerous to human life, yet defendant acted with conscious disregard for human life by continuing to hold Portillo so Ernie could land the blows.
Defendant resists our conclusion with what boils down to three arguments.
First, defendant argues that we must independently evaluate the evidence (rather than review it for substantial evidence), and offers two reasons why. To begin, he asserts that the CALCRIM No. 225 jury instruction requires factfinders to resolve any conflict in circumstantial evidence in favor of innocence, and that this mandate applies to appellate review as well. He is wrong, and his argument is frivolous. It was squarely rejected by our Supreme Court 42 years ago in People v. Towler (1982) 31 Cal.3d 105, 118, which held that the predecessor instruction to CALCRIM No. 225 guides the trier of fact and not appellate courts who engage in the more limited task of asking "whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (Accord, People v. Thomas (1992) 2 Cal.4th 489, 514.) What is more, because criminal intent is almost inevitably established through circumstantial evidence (Hill, supra, 100 Cal.App.5th at p. 1071), accepting defendant's argument would obligate appellate courts to reverse every criminal conviction unless the evidence of intent was undisputed. This is not the law. Further, defendant asserts that appellate courts must independently examine whether a particular inference may be drawn (e.g., People v. Johnson (2019) 32 Cal.App.5th 26, 57-58), and from this, defendant reasons that we must independently assess whether we would infer his malice from the evidence presented. Again, defendant is wrong. The precedent defendant cites goes on to explain that as long as an inference is supported by substantial evidence, it is reasonable. (Id. at pp. 57-61.) And again, if defendant's view of the law were correct, substantial evidence review of convictions would be a thing of the past.
Second, and even if we apply substantial evidence review, defendant argues that our analysis is incorrect. He asserts that there is insufficient evidence of pre-planning, and posits that Ernie's attack was entirely unexpected and spontaneous. This assertion conflates premeditation with intent to kill. But they are distinct concepts. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-823 ["Premeditation and deliberation are not to be confused with a deliberate intent to kill"].) An intent to kill may be formed quickly (People v. Cain (1995) 10 Cal.4th 1, 49), and substantial evidence supports the finding defendant formulated that intent by the time he held Portillo in place so that Ernie could repeatedly strike him in the skull with a bumper jack. Defendant next asserts that the fact that he and Ernie chased down Portillo did not show an intent to kill or to act with reckless indifference to human life. Whether or not defendant is correct if considering the chase by itself, the trial court was permitted to examine the totality of the evidence that included not only the chase, but the shootings the week before, defendant's conduct in issuing a gang challenge before the chase, and defendant's conduct in holding Portillo in place so Ernie could bash in Portillo's skull. Defendant further asserts that the evidence of whether defendant was aware of Ernie's initial strikes to Portillo's skull was "decidedly ambiguous" because the "only witness" to those strikes was the gang affiliate who drove defendant and Ernie to the location of the killing. Defendant misreads the record and ignores the standard of review. Other witnesses besides the driver saw the initial blows, and they testified that defendant held Portillo in place while Ernie struck him; that constitutes substantial evidence, even if one of the defense witnesses offered contrary testimony.
Third and lastly, defendant argues that two cases dictate a ruling in his favor. They do not. He cites In re K.M. (2022) 75 Cal.App.5th 323 (K.M.) and People v. Underwood (2024) 99 Cal.App.5th 303 (Underwood); in each, the appellate court overturned a finding of liability due to insufficient evidence. But both cases are inapt. In K.M., the court overturned a juvenile court's wardship finding that the juvenile aided and abetted two others in robbing a pedestrian of a cell phone as they circled around him on bicycles; the appellate court found insufficient evidence that the juvenile had "aided or encouraged" the robbery that was perpetrated by the other two. (K.M., at pp. 328-329.) Unlike in K.M. and as explained above, defendant engaged in conduct that aided and abetted Ernie in killing Portillo. In Underwood, the defendant and an accomplice approached a stranger on the sidewalk, the defendant's accomplice told the stranger, "'give me the wallet or I'll kill you,'" and the accomplice subsequently stabbed the stranger. The court held that there was insufficient evidence of reckless indifference to sustain the conviction, in part because "nothing suggest[ed] either [defendant or his accomplice] knew the victim or held any animus toward him." (Underwood, supra, 99 Cal.App.5th at pp. 314-318.) Unlike in Underwood, defendant had a motive to kill Portillo, and the attack on him that day-as well as the attack on other gang members the week before-were consistent with that motive.
DISPOSITION
The order is affirmed.
We concur: ASHMANN-GERST, Acting P.J., CHAVEZ, J.