California Court of Appeal Sep 15, 2023 No. E079870Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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.
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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,
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.)
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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
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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
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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.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant failed to establish a prima facie case for resentencing under former Penal Code section 1170.95 because the record of conviction demonstrated he was convicted under a theory of direct aiding and abetting rather than the natural and probable consequences doctrine.
Issues
Did the trial court err in finding the defendant failed to establish a prima facie case for resentencing under former section 1170.95?
Was the jury's aiding and abetting instruction (CALJIC No. 3.00) legally ambiguous regarding the defendant's culpability?
Does the appellate court have jurisdiction to review alleged trial errors regarding gang expert testimony in an appeal from a section 1170.95 petition denial?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The record reflects defendant was convicted under a theory of direct aiding and abetting, i.e., with an intent to kill.”
“The mere filing of a section 1170.95 petition does not afford the petitioner a new opportunity to raise claims of trial error.”