People v. Cruz CA4/3

Filed 11/9/22 P. v. Cruz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G060903

v. (Super. Ct. No. 02CF0796

ROBERTO CARLOS CRUZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Appellant Roberto Carlos Cruz was convicted, along with a codefendant, of the 2002 murders of Andres Garza and Francisco Walle. The jury found the murders to be first degree and returned true findings on special circumstance and enhancement allegations. Cruz was sentence to consecutive terms of life imprisonment without parole (a gang enhancement was stricken, and sentence on another count was stayed). He appealed and we affirmed his conviction. (People v. Cruz (Sept. 29, 2006, G035177) [nonpub. opn.].) Cruz has since petitioned unsuccessfully for writ relief from this conviction three times. In 2021, he filed this action, seeking relief pursuant to newly enacted Penal Code section 1170.95.1 Section 1170.95 is the procedural mechanism for implementing legislative changes in California law which narrow the scope of vicarious liability for murder in two ways. First, the Legislature eliminated the natural and probable consequences theory for that crime by providing that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Second, it reigned in the felony murder rule so that it can only be applied to nonkillers if they aided and abetted the killer in committing first degree murder, or they were a major participant in the underlying felony and acted recklessly indifferent to human life. (§ 189, subd. (e).) In addition to ushering in these changes, the Legislature also enacted section 1170.95, which is the procedural mechanism for challenging a murder conviction based on vicarious liability. To obtain relief under that section, the defendant must show 1) he was prosecuted for murder under the felony murder rule or the natural and probable consequences doctrine, 2) he was ultimately convicted of first or second degree murder,