California Court of Appeal Jun 27, 2024 No. E081561Unpublished
Filed 6/27/24 P. v. Estrada CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E081561
v. (Super.Ct.No. SCR51024)
RUDY ESTRADA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Reed Webb, 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, Eric A. Swenson, Felicity
Senoski and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 1990, a jury found defendant and appellant Rudy Estrada not guilty of first
degree murder, robbery, and burglary. However, the jury convicted him of the lesser
included offense of second degree murder.
Estrada petitioned for resentencing on the ground that recent changes to the law 1 abrogated the grounds of his second degree murder conviction. (Pen. Code, § 1170.95,
and alleging he personally used a firearm in committing those offenses (§§ 1203.06,
subd. (a)(1), 12022.5). The jury found Estrada guilty of only the lesser included offense
1 Undesignated statutory references are to the Penal Code.
2
of second-degree murder on count 1, found him not guilty on counts 2 and 3, and found
the firearm enhancement allegations to be not true. The trial court sentenced him to 15
years to life. In an unpublished opinion, we affirmed the judgment. (People v. Perez
(Apr. 28, 1992, E008365).)
Estrada was tried together with one of his codefendants, Peter Paul Perez, who
was convicted of first degree special circumstance murder and burglary, as well as
alleged enhancements, and was sentenced to life without the possibility of parole plus a
determinate term. With minor modifications, we affirmed Perez’s judgment. (People v.
Perez, supra, E008365.) Three other codefendants reached plea agreements and testified
at the trial; one, Bert Wilson, was called by the People, while the other two were called as
defense witnesses.
The People initially opposed issuing an order to show cause on Estrada’s petition
for resentencing, but after a chambers conference the trial court and the parties agreed the
petition stated a prima facie claim for relief. At the May 2023 evidentiary hearing, the
evidence consisted of: (1) a stipulated summary of the facts; (2) this court’s unpublished
opinion on direct appeal from the judgments against Estrada and Perez, People v. Perez,
supra, E008365; (3) transcripts of two parole hearings for Estrada, one from 2004 and
another from 2018; and (4) part of the trial transcript, including Wilson’s testimony and
the testimony of a police officer involved in arresting Estrada and his codefendants.
The parties’ stipulated summary of the facts was the following:
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“On August 13, 1989, Defendant Estrada was at a fiesta when his friend, co-
defendant, Perez, arrives with two or three other individuals and asks him if he wants to
go do a robbery. Defendant eventually agrees. Defendant has his friend and the other
individuals take him to his house for the purpose of getting his gun. Once he had his gun,
they all went to the Texaco gas station in Fontana to do the robbery.
“Defendant and his friend, Perez, go inside the Texaco station while the other
individuals wait in the car. Both Defendant Estrada and Perez had a gun. During the
robbery, a struggle ensued because the victim did not want to give up the money. During
the struggle, the victim lunged toward Perez. The first shot was fired. Estrada then ran
out of the store and two more shots were fired. Estrada did nothing to stop the murder or
assist the victim. At the parole hearing in 2018, Estrada stated “I helped kill him cause I
didn’t say nothing.” [Citation.] Also, at the parole hearing in 2018, Estrada said, “I
should have said something. I should have stopped it, but I didn’t.’ [Citation.]”
The trial court denied Estrada’s petition. It explained it had evaluated the
evidence with reference to CALCRIM No. 540B, a pattern instruction for first degree
felony murder. It found the evidence “established that the defendant, along with Perez
and Wilson, attempted to commit a robbery. During that attempted robbery, Perez shot
and killed the victim. The defendant was a major participant in the attempted robbery.
And when he participated in the attempted robbery, he acted with reckless indifference to
human life.”
4
DISCUSSION
Estrada argues the trial court erred by denying his petition based on a theory of
liability that was foreclosed by the jury’s findings at trial acquitting him of robbery, 2 burglary, and first degree murder. “Generally, in determining whether a trial court
correctly denied a section [1172.6] petition after an evidentiary hearing, ‘“‘we review the
factual findings for substantial evidence and the application of those facts to the statute de
novo.’”’” (People v. Cooper (2022) 77 Cal.App.5th 393, 412 (Cooper).) Also, we may
affirm a judgment or order “on any basis fairly supported by the record . . . .” (Williams
v. Superior Court (2017) 3 Cal.5th 531, 554.) We find no error in the denial of Estrada’s
petition, though we disagree with the trial court’s reasoning.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437), to “modify accomplice liability for murder and the felony-murder
rule.” (People v. Gentile (2020) 10 Cal.5th 830, 841.) To do this, it “eliminated natural
and probable consequences liability for murder as it applies to aiding and abetting, and
limited the scope of the felony-murder rule.” (People v. Lewis (2021) 11 Cal.5th 952,
957 (Lewis).) “The now-eliminated natural and probable consequences doctrine had
allowed an accomplice to be found guilty of murder if a ‘jury determined that he aided
and abetted [a] target crime[] and that murder was a natural and probable consequence of
the offense.’” (People v. Mares (2024) 99 Cal.App.5th 1158, 1164.) “The felony-murder
2 This is not an argument he raised in the trial court. We exercise our discretion to consider it on the merits.
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doctrine had allowed accomplices to be held liable for murder simply by participating in
certain felonies with the killer. The limited doctrine now allows accomplices to a felony
to be held responsible for a cohort’s act of murder only if the accomplice ‘with the intent
to kill’ aided and abetted ‘the actual killer in the commission of murder in the first
degree’ or the accomplice was a ‘major participant in the underlying felony and acted
with reckless indifference to human life.’” (Ibid.)
“Senate Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended,” now codified
at section 1172.6. (People v. Strong (2022) 13 Cal.5th 698, 708.) To satisfy this
requirement, “a petition must allege three statutory conditions of eligibility are satisfied.”
(Mares, supra, 99 Cal.App.5th at p. 1165; see § 1172.6, subd. (a).) The first is that “the
petitioner faced charges allowing the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences doctrine, or another theory
of imputed malice.” (Mares, at p. 1165; see § 1172.6, subd. (a)(1).) The second is that
“the petitioner was convicted of murder, attempted murder, or manslaughter or pled
guilty when they could have been convicted of murder or attempted murder.” (Mares, at
p. 1165; see § 1172.6, subd. (a)(2).) The third is that the petitioner “‘could not presently
be convicted of murder or attempted murder” because of the changes to the murder
statutes (§§ 188 or 189) enacted by Senate Bill 1437. (Mares, at p. 1165; see § 1172.6,
subd. (a)(3).)
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Generally, “[i]f the petition makes a prima facie showing that the petitioner
satisfies these requirements, the court must issue an order to show cause and hold a
hearing at which the prosecutor is required to prove beyond a reasonable doubt that the 3 petitioner is guilty of murder under current law.” (People v. Guillory (2022) 82
Cal.App.5th 326, 330 ; see § 1172.6, subds. (c), (d).) At such a hearing, either side may
introduce new evidence, and the prosecution may rely on theories of guilt not raised at
trial. (§ 1172.6, subd. (d)(3); People v. Schell (2022) 84 Cal.App.5th 437, 444.)
Nevertheless, a section 1172.6 hearing is not an opportunity for the prosecution to
relitigate theories of murder already rejected by the finder of fact at trial. For example, in
People v. Arnold (2023) 93 Cal.App.5th 376, the trial court’s denial of the defendant’s
resentencing petition was based on a finding the defendant had stabbed the victim and
thus was an actual killer. That finding contravened the jury’s not true finding on an
allegation that defendant personally used a knife, so the court of appeal reversed. (Id. at
pp. 379, 383-387; accord People v. Henley (2022) 85 Cal.App.5th 1003, 1020; Cooper,
supra, 77 Cal.App.5th at p. 417.)
The jury did not find Estrada guilty of first-degree murder, so it rejected the
argument that he was guilty under a felony murder theory with a robbery or burglary as
3 Subdivision (d)(2) of section 1172.6 “sets out two scenarios in which a hearing is not necessary: first, where the parties ‘waive a resentencing hearing and stipulate that the petitioner is eligible’ for resentencing, or second, if ‘there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony.’” (People v. Garcia (2023) 93 Cal.App.5th 416, 421-422, quoting People v. Guillory, supra, 82 Cal.App.5th at p. 332.)
7
the underlying felony. Thus, no matter how strong the evidence presented at trial or at
the section 1172.6 hearing, the trial court could not deny Estrada’s petition based on a
finding beyond a reasonable doubt that Estrada committed felony murder with robbery or
burglary as the underlying felony, and therefore was liable for murder under current law.
To do so would impermissibly “‘turn[] acquittals . . . into their opposites.’” (Cooper,
supra, 77 Cal.App.5th at p. 413.)
The trial court’s expressed reasoning, finding Estrada guilty beyond a reasonable
doubt of felony murder with attempted robbery as the underlying felony, has some initial
appeal. Although the information charged Estrada with both “the commission and
attempted commission” of robbery, at no point did the prosecution argue attempted
robbery as a theory of the case. Also, the jury was not instructed on attempt as a general
legal concept, nor did it receive any instruction on attempted robbery or attempted
burglary as lesser included offenses.
Such reasoning does not stand up, however, to close examination of what the jury
must have found to return the verdict it did. The jury was instructed on first degree
felony murder as follows: “The unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs [during the commission or attempted
commission of a crime] of Robbery or Burglary is murder of the first degree when the
perpetrator had the specific intent to commit such crime. [¶] The specific intent to
commit Robbery or Burglary and the commission or attempted commission of crime must
be proved beyond a reasonable doubt.” (Italics added.) The jury was also instructed on
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aider and abettor liability for first degree felony murder with reference to both “the
commission or attempted commission of the crime of Robbery or Burglary.” The
necessary inference from these instructions, together with the verdict acquitting Estrada
of first degree murder, robbery, and burglary and finding him guilty only of second
degree murder, is that the jury found reasonable doubt that Estrada committed either the
completed or attempted form of robbery or burglary. (See People v. Cortes (2022) 75
Cal.App.5th 198, 205 [“we presume a jury understands and follows the court’s
instructions”].) Thus, the trial court’s contrary finding that Estrada was a major
participant in an attempted robbery during which the victim was murdered—no matter
how strong the evidence in support of that finding—also impermissibly turns an acquittal
“‘into [its] opposite[].’” (Cooper, supra, 77 Cal.App.5th at p. 413.)
Nevertheless, for different reasons, we find the trial court was correct to deny
Estrada’s petition. Relief is available under section 1172.6 only for those who could not
“presently be convicted of murder or attempted murder because of changes to Section
188 or 189” enacted by Senate Bill 1437. (§ 1172.6, subd. (a)(3).) A petitioner who was
convicted on a still-valid theory of murder or attempted murder is ineligible for relief as a
matter of law. (Lewis, supra, 11 Cal.5th at p. 971.) That means at a hearing on whether
the petitioner is entitled to relief, the prosecution may show that the defendant in fact
already was found guilty beyond a reasonable doubt at trial on a theory of murder
unaffected by the changes enacted by Senate Bill 1437. While questions about the theory
of murder underlying a conviction often are resolved at the prima facie stage—either by
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identifying the theory the jury must have adopted or by determining that there is no way
to know—in some cases those questions may remain open at the evidentiary hearing, for
a variety of reasons. In this case, the jury instructions that underpin our analysis were not
a part of the record during the petition process in the trial court; they were added to the
appellate record by an unopposed motion to augment filed by the People in conjunction
with their appellate brief.
Here, the jury instructions and verdicts, together with the available facts, compel
the conclusion that Estrada was not convicted of felony murder at all, let alone convicted
on a theory of felony murder abrogated by Senate Bill 1437. Certainly, it was the
prosecution’s theory at trial that the victim was murdered while Estrada and Perez were
committing robbery and burglary. But the jury acquitted Estrada of both robbery and
burglary. As discussed, the jury must have also found reasonable doubt as to whether
Estrada committed attempted robbery or attempted burglary; otherwise, under the
instructions, it would have had to find Estrada guilty of first degree murder, not second
degree murder. Similarly, the jury could not have found Estrada guilty of murder on a
natural and probable consequences theory. There is nothing in the parties’ stipulated
facts, nor anywhere else in the record, suggesting some other crime besides the rejected
robbery and burglary charges that might underly a finding of liability under natural and
probable consequences doctrine. Moreover, again, under the instructions it was given, if
the jury somehow found liability under the natural and probable consequences doctrine, it
would have had to find Estrada guilty of first degree murder, the crime it found Perez
10
4 committed. And given that Perez was the actual killer, the jury must have found Estrada
guilty of directly aiding and abetting Perez in committing the murder. He is therefore
ineligible for relief under section 1172.6, and his petition was properly denied.
Of course, it at first appears that there might be an incongruity between Perez’s
first degree murder conviction and Estrada’s second degree murder conviction for aiding
and abetting Perez. The verdicts are, however, not inconsistent but explainable by
findings of differing mental states. An aider and abettor’s “guilt is based on a
combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own
mental state.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117; see also People v. Nero
(2010) 181 Cal.App.4th 504, 517 [“[A]n aider and abettor’s guilt may . . . be less than the
perpetrator’s, if the aider and abettor has a less culpable mental state”].) In this case, the
jury found Perez committed the murder while committing a burglary (though it acquitted
him of robbery). (People v. Perez, supra, E008365.) Under the jury’s first degree felony
murder instruction, Perez was therefore guilty of first degree murder. The jury acquitted
Estrada of robbery and burglary, leading to a different conclusion about the degree of his
culpability for murder. This conclusion was consistent with its instructions, which
4 The jury was instructed as follows: “One who aids and abets is not only guilty of the particular crime that to [his] knowledge [his] confederates are contemplating committing, but [he] is also liable for the natural and probable consequences of any criminal act that [he] knowingly and intentionally aided and abetted.” You must determine whether the defendant is guilty of the crime originally contemplated, and, if so, whether the crime charged [in Counts 1, 2, and 3] was a natural and probable consequence of such originally contemplated crime.”
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defined second degree murder as an unlawful killing committed with express or implied
malice, but without sufficient evidence to establish deliberation or premeditation.
We conclude the jury necessarily convicted Estrada of murder as a direct aider and
abettor, and not on any theory of vicarious liability abrogated by Senate Bill 1437. He is
therefore ineligible for relief under section 1172.6.
DISPOSITION
We affirm the order denying Estrada’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was ineligible for resentencing under Penal Code section 1172.6 because the record established he was convicted of second-degree murder as a direct aider and abettor, a theory of liability that remains valid under current law.
Issues
Whether the trial court erred in denying a resentencing petition by relying on a felony-murder theory that contradicted the jury's acquittal of the underlying felonies.
Whether the defendant's second-degree murder conviction was based on a theory of liability abrogated by Senate Bill 1437.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude the jury necessarily convicted Estrada of murder as a direct aider and abettor, and not on any theory of vicarious liability abrogated by Senate Bill 1437.”
“A petitioner who was convicted on a still-valid theory of murder or attempted murder is ineligible for relief as a matter of law.”