Filed 8/27/24 P. v. Benjamin CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RUDOLPH BENJAMIN,

 Defendant and Appellant.

 G061899

 (Super. Ct. No. C-98445)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of 

Orange County, Steven D. Bromberg, Judge. Affirmed.

David M. McKinney, 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. 
2

Swenson and James H. Flaherty III, Deputy Attorneys General, for Plaintiff 

and Respondent.

* * *

Defendant Rudolph Benjamin was convicted in 1993 of two 

counts of first degree murder with a multiple-murder special-circumstance 

finding. His convictions were affirmed on direct appeal. Benjamin now 

challenges the trial court’s denial of his petition for resentencing pursuant to 

Penal Code section 1172.6.1 We affirm. Substantial evidence supports the 

court’s finding that the evidence at Benjamin’s jury trial established his guilt 

beyond a reasonable doubt under the revised versions of sections 188 and 

189.

FACTUAL BACKGROUND

Luis Herrera owned the Cartoons and Capers nightclub in 

Anaheim, California (the club). Herrera lived in an apartment near the club 

with his girlfriend, Diane Swarbrick.

On the evening of May 30, 1989, Gabriel S. was with Herrera at 

the club when Benjamin entered at about 10:00 p.m. Benjamin was with 

three or four other men. Herrera left the club briefly with two of the other 

men, who wanted to obtain the keys to a motor home. One of the other men 

stayed inside the club with Benjamin; Gabriel overheard Benjamin tell this 

man, apparently referring to Herrera, “‘I’m going to waste this 

motherfucker.’”

1 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 

Although Benjamin filed his petition under former section 1170.95, we treat 

it as a request pursuant to section 1172.6. All further statutory references are 

to the Penal Code.
3

When Herrera returned to the club, Gabriel told him what 

Benjamin had said. Benjamin and Herrera then yelled at each other and had 

a “high intensity argument,” which one witness testified lasted about 20 

minutes. Gabriel heard Benjamin tell Herrera he wanted a cut of Herrera’s 

action. Herrera appeared nervous and upset. At about 2:00 a.m. on May 31, 

Herrera and Gabriel left the club; Herrera dropped Gabriel off at Gabriel’s

home in Cypress before going to his own apartment.

Charles S. lived in the apartment next door to Herrera and 

Swarbrick. Both apartments were on the second floor and were accessed only 

by a single stairway that led directly toward Charles’s front door. Sometime 

after 2:00 a.m. on May 31, Charles heard footsteps running up the stairway 

and into Herrera and Swarbrick’s apartment; Charles assumed it was 

Herrera. Fifteen or twenty minutes later, Charles heard two sets of footsteps 

heading toward Herrera’s apartment. Five to ten minutes later, he heard two 

gunshots, followed by three more gunshots, coming from Herrera’s 

apartment. After another five or ten minutes, Charles heard the door to the 

neighboring apartment shut and heard two sets of footsteps going towards 

the stairs. Charles peeked through the blinds covering the glass door of his 

own apartment and saw two men going down the stairs. Charles recognized 

one of the men as Benjamin.

Charles did not call the police because Herrera had previously 

threatened him with violence if he ever informed on him for selling drugs and 

because Charles thought Herrera might simply have been fooling around 

with his gun. When shown a six-pack photographic lineup two weeks after 

the shooting, Charles “immediately” identified Benjamin. At trial, Charles 

was positive of his identification of Benjamin.
4

Shirleen H. also lived in an apartment adjacent to Herrera and 

Swarbrick’s. At about 3:00 a.m. on May 31, she heard five gunshots. She 

cracked open her front door and saw two men going down the stairs. She did 

not get a good enough look to be able to identify them.

The bodies of Herrera and Swarbrick were found by a neighbor 

later that morning. Herrera’s body was on the living room couch. Swarbrick’s

body was partially inside the closet in the master bedroom. There was no 

evidence of forced entry into the apartment and no signs of a struggle. The 

police found .380 caliber shell casings from a semi-automatic handgun near

both bodies. A nine millimeter semi-automatic handgun was found in a 

nightstand in the master bedroom, undisturbed.

Swarbrick had two gunshot wounds to her chest and one grazing 

wound on her left forearm. She also suffered superficial wounds around her

neck that may have been caused by a knife or by a chain or wire held tightly 

around her neck. The wound on her forearm had stippling, indicating that 

when the weapon was fired the muzzle was four to six inches away.

Swarbrick bled to death due to the gunshot wounds to her heart, lung, liver, 

and stomach. The medical examiner testified her death was not 

instantaneous.

Herrera died as a result of two gunshot wounds to his head.

Stippling on a wound on his cheek indicated the gun had been held three to 

six inches from his face.2

Benjamin’s palm prints were found inside the front door and on 

the dining room table in Herrera’s apartment. Benjamin had been a guest at 

2 The evidence suggests there also were two young children in the 

apartment at the time of the shootings, including the daughter of Herrera 

and Swarbrick. 
5

a party in the apartment one week before the murders. The police, however, 

described the apartment as “clean” and “immaculate” on the day the bodies 

were found.

Benjamin admitted he knew the police were looking for him in 

connection with the murders of Herrera and Swarbrick, but claimed he did 

not contact the police because he had outstanding traffic warrants. When 

Benjamin was arrested for the murders of Herrera and Swarbrick more than 

three years later, he gave the police a false name, and when police showed 

him a photograph of himself, he denied it was him. 

Benjamin testified on his own behalf that he was not involved in 

the murders of Herrera and Swarbrick. Benjamin admitted he was a drug 

dealer and Herrera was his supplier. Benjamin explained he would buy a 

kilogram of cocaine from Herrera for $13,000 and then sell it for $14,500.

Because he sold an average of 10 kilograms of cocaine a week, his earnings 

amounted to about $15,000 per week. Benjamin claimed he had no reason to 

kill Herrera because he obtained drugs from Herrera more cheaply than from 

other suppliers, and Herrera’s death hurt his drug dealing business.

Benjamin denied saying he would waste Herrera or saying he wanted a cut of 

Herrera’s business.

PROCEDURAL HISTORY

Benjamin was charged with two counts of murder. (§ 187, 

subd. (a).) The information alleged as a special circumstance that Benjamin 

had committed more than one murder. (§ 190.2, subd. (a)(3).) The jury 

convicted Benjamin of the first degree murders of both Herrera and 

Swarbrick and found the multiple-murder special circumstance to be true.

The trial court sentenced Benjamin to life in prison without the possibility of 
6

parole. The judgment was affirmed on appeal. (People v. Benjamin (June 29, 

1995, G015374) [nonpub. opn.].)

In 2019, Benjamin filed a resentencing petition pursuant to 

section 1172.6. The trial court concluded the legislation enacting that statute

was unconstitutional and denied the petition without prejudice. In an 

unpublished opinion, another panel of this court reversed that decision and 

remanded the case to the trial court to consider the petition on its merits.

(People v. Benjamin (Aug. 4, 2020, G057554) [nonpub. opn.].)

On remand, the trial court found Benjamin’s resentencing 

petition made a prima facie showing under section 1172.6 and issued an 

order to show cause. Following briefing and a hearing at which neither party 

provided any additional evidence, the trial court denied the petition. The 

court concluded the evidence demonstrated beyond a reasonable doubt that 

Benjamin either was the actual killer of both Herrera and Swarbrick or, at a 

minimum, that he aided and abetted the killer. 

Benjamin filed a timely notice of appeal.

DISCUSSION

On appeal from the denial of a section 1172.6 petition following 

an evidentiary hearing, the trial court’s determination is reviewed for 

substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298.)

“Our job on review is different from the trial judge’s job in deciding the 

petition. While the trial judge must review all the relevant evidence, evaluate 

and resolve contradictions, and make determinations as to credibility, all 

under the reasonable doubt standard, our job is to determine whether there 

is any substantial evidence, contradicted or uncontradicted, to support a 

rational fact finder’s findings beyond a reasonable doubt.” (Ibid.) In applying 

the substantial evidence test, “‘“we review the entire record in the light most 
7

favorable to the judgment to determine whether it contains substantial 

evidence—that is, evidence that is reasonable, credible, and of solid value—

from which a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” [Citation.] We determine “whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable 

doubt.” [Citation.] In so doing, a reviewing court “presumes in support of the 

judgment the existence of every fact the trier could reasonably deduce from 

the evidence.”’ [Citations.] Substantial evidence also ‘“includes circumstantial 

evidence and any reasonable inferences drawn from that evidence.”’” (People 

v. Vargas (2022) 84 Cal.App.5th 943, 951.)

Based on the facts here—and the inferences that reasonably 

could be drawn from them—we conclude substantial evidence supports the 

trial court’s finding that the evidence at trial established beyond a reasonable 

doubt that Benjamin was guilty of the murders of Herrera and Swarbrick.

As an initial matter, Benjamin acknowledges the evidence was 

sufficient to support the trial court’s ruling as to Herrera. He does not 

challenge that part of the court’s order.3 We agree the evidence is sufficient to 

permit a reasonable trier of fact to find Benjamin guilty of Herrera’s murder

beyond a reasonable doubt, either as the actual killer or as an aider and 

abettor. A few hours after Benjamin threatened to kill Herrera, his drug 

supplier, demanded a cut of Herrera’s action, and engaged in a long, loud 

3 Benjamin’s opening brief states: “Benjamin recognizes that 

evidence highlighted by the court was sufficient to warrant the court’s finding 

that as to victim Herrera, Benjamin may arguably have had the requisite 

intent to kill, as well as a demonstrated motive. For purposes of this brief, he 

does not claim the evidence was insufficient to support the court’s ruling as to 

Herrera.”
8

argument with him, Benjamin was observed at the scene of the crime with 

one other person. Benjamin’s palm prints were found at two different 

locations inside Herrera’s apartment. Knowing the police were looking for 

him in connection with the murders, Benjamin hid from the police and gave a 

false name when they finally apprehended him. When police showed 

Benjamin a photo of himself, he denied it was him. 

Benjamin limits his argument on appeal to whether the evidence 

supports a finding of guilt as to the murder of the second victim, Swarbrick.4

Benjamin argues: (1) there is no evidence Benjamin either killed or aided or 

abetted the killing of Swarbrick, and any argument that he did is based on 

pure speculation; (2) the trial court improperly invoked the felony-murder 

rule to deny resentencing; and (3) the court did not act as an independent fact 

finder, but rather improperly relied on and “adopted” factual statements and 

legal conclusions set forth in the Court of Appeal’s 1995 opinion affirming 

Benjamin’s conviction. (People v. Benjamin, supra, G015374.) We find no 

merit in any of these arguments.

The threshold question before us is whether there was sufficient 

evidence from which a reasonable trier of fact could find Benjamin guilty 

beyond a reasonable doubt of Swarbrick’s murder, either as the actual 

perpetrator or as a direct aider and abettor. We conclude there is.

4

If the court were to conclude that Benjamin could not, under 

current law, be convicted of Swarbrick’s murder, the trial court necessarily 

would have to reverse the jury’s true finding on the multiple-murder special 

circumstance (§ 190.2, subd. (a)(3)), which in turn would require resentencing 

on the single murder conviction. A true finding on a special circumstance 

under section 190.2 requires the defendant to be sentenced to death or life in 

prison without the possibility of parole.
9

Benjamin argues the evidence does not support a finding that he 

was guilty of aiding and abetting Swarbrick’s murder because, at most, it 

showed only that Benjamin had an intent to kill, and that is insufficient for 

aiding and abetting liability. Benjamin is correct that more than an intent to 

kill is necessary for aiding and abetting liability; but he is wrong that there is 

no hypothesis upon which substantial evidence exists to support the trial 

court’s conclusion that Benjamin was guilty beyond a reasonable doubt of 

aiding and abetting the killing of Swarbrick. (See People v. Vargas, supra, 84 

Cal.App.5th at p. 952.) 

“‘[A] person aids and abets the commission of a crime when he or 

she, acting with (1) knowledge of the unlawful purpose of the perpetrator; 

and (2) the intent or purpose of committing, encouraging, or facilitating the 

commission of the offense, (3) by act or advice aids, promotes, encourages or 

instigates, the commission of the crime.’” (People v. Gonzales and Soliz (2011) 

52 Cal.4th 254, 295–296; see People v. Curiel (2023) 15 Cal.5th 433, 468 [in 

addition to having an intent to kill,“[t]he aider and abettor must know the 

direct perpetrator intends to commit the murder . . . and intend to aid the 

direct perpetrator in its commission”];

5 People v. Gentile (2020) 10 Cal.5th 

830, 843.)

The evidence shows that, at 3:00 a.m. on May 31, 1989, Benjamin 

and another man went to the apartment Herrera shared with Swarbrick. The 

fact that Benjamin had been to that very apartment for a party just a week 

earlier supports an inference he knew both Herrera and Swarbrick lived 

there, and the fact that it was 3:00 in the morning supports an inference he 

5 People v. Curiel was decided after briefing was complete in this 

appeal. This court advised the parties to be prepared to address the case at 

oral argument.
10

knew both Herrera and Swarbrick would be at home. Given that only a few

hours earlier Benjamin had vociferously argued with Herrera and said he 

was “going to waste” him—a common slang term for kill—the evidence 

supports the conclusion that Benjamin intended to kill not only Herrera but 

anyone else in the apartment who might interfere with Herrera’s murder, 

scream or phone for help, or later identify Benjamin as the killer. The fact 

that Benjamin took another person with him also reasonably supports an 

inference that Benjamin knew Herrera would not be alone and that it would 

be necessary to have someone to assist him. 

That Herrera and Swarbrick were shot in fairly rapid succession 

and both were shot with a .380 caliber weapon supports an inference that a 

single shooter, with a single gun, killed both Herrera and Swarbrick.

Benjamin correctly notes there is no evidence showing whether Benjamin 

was that single shooter, or whether the shooter was the unidentified man 

who went to the apartment with Benjamin on May 31. In either event, 

substantial evidence supports the trial court’s finding that Benjamin was 

guilty of murder beyond a reasonable doubt, either because he personally 

shot both victims or because he directly aided and abetted the shooter with 

the requisite knowledge and intent.

The evidence supports a reasonable inference that whichever of 

the two men was the actual killer, he killed Herrera first, while the other 

man dealt with Swarbrick by chasing her into the bedroom (or by finding her 

in the bedroom trying to hide herself and/or her children) and then by 

restraining her by holding a knife to her throat or choking her with a chain 

held tightly enough around her neck to leave ligature marks. The evidence 

that two clusters of gunshots were heard fairly close to one another supports 

a reasonable inference that once the shooter had executed Herrera with two
11

point-blank gunshots to the head, he immediately went to the bedroom where 

Swarbrick was being choked and subdued and shot her twice in the chest and 

a third time in the arm at very close range.

If it was Benjamin who executed Herrera with the .380 caliber 

weapon at point blank range and then went to the bedroom—where his 

confederate was restraining Swarbrick—and fired two shots into Swarbrick’s 

chest, the evidence amply supports Benjamin’s two first degree murder 

convictions, along with the multiple-murder special-circumstance finding.

On the other hand, if Benjamin was not the actual shooter, but

was the one who attacked and subdued Swarbrick to prevent her from 

phoning or crying out for help or from interfering with the shooter who was in 

the process of executing Herrera, substantial evidence supports Benjamin’s 

murder convictions as a direct aider and abettor, as well as the multiplemurder special-circumstance finding. A trier of fact could reasonably conclude 

that restraining and silencing Swarbrick (by choking or with a knife) until 

the accomplice with the gun could finish executing Herrera and then come

turn the gun on her constitutes “aid[ing], promot[ing], encourag[ing] or 

instigat[ing]” her killing. (People v. Gonzales and Soliz, supra, 52 Cal.4th at 

pp. 295–296.) The fact that Benjamin and his accomplice left Swarbrick to 

bleed to death from the two gunshot wounds in her chest is further evidence 

supporting an inference that both shared an intent to kill her.

None of this is pure speculation or conjecture, as Benjamin 

suggests. These are reasonable inferences drawn from substantial evidence 

that was introduced at the trial and was then presented to the trial court at 

the hearing on the order to show cause in the form of the transcript of the 

trial proceedings. It is a truism that not all killings are committed in the 

presence of witnesses or happen to be captured on video. When evaluating 
12

circumstantial evidence presented in support of a murder charge, the trier of 

fact is entitled to draw—indeed, often is required to draw—reasonable 

inferences from that evidence. (People v. Vargas, supra, 84 Cal.App.5th at p.

951; People v. Nieber (2022) 82 Cal.App.5th 458, 476.) The court’s reliance on 

reasonable inferences to find Benjamin guilty beyond a reasonable doubt 

provides no basis to reverse its denial of Benjamin’s section 1172.6 petition.

6

In sum, we conclude the inferences reasonably drawn from the 

evidence recited above constitute substantial evidence supporting the trial 

court’s findings that (1) both Benjamin and the man who accompanied him to 

Herrera and Swarbrick’s apartment in the early morning hours of May 31, 

1989, intended to kill both Herrera and Swarbrick, (2) if Benjamin was not 

the actual killer he was aware of the other man’s intent to kill, and 

(3) Benjamin either was the actual killer or, at a minimum, he took steps to 

aid and abet the actual killer by restraining Swarbrick while the shooter 

executed Herrera and then came to the bedroom to kill Swarbrick, too.

Benjamin argues that, in denying his section 1172.6 petition after 

the hearing on the order to show cause, the trial court impermissibly relied 

on the felony-murder rule to find him guilty beyond a reasonable doubt of the 

two murders. Benjamin points to the court’s somewhat cryptic statement in 

its ruling that “[t]he defendant failed to identify any evidence adduced at 

trial that could support a theory that the murders were completely unrelated 

to any underlying crime.” It is not clear to us what the court intended by that 

statement. But it is clear, reading the court’s ruling in its entirety, that the 

6 That Benjamin denied having anything to do with the murders 

of Herrera and Swarbrick does not alter our analysis. On a substantial 

evidence review, “‘“we review the entire record in the light most favorable to 

the judgment.”’” (People v. Vargas, supra, 84 Cal.App.5th at p. 951.)
13

court did not deny Benjamin’s section 1172.6 petition based on application of 

the felony-murder rule. The court correctly noted that “[t]he evidence does 

not support that a felony murder theory was relied upon for the conviction.”

The court also made clear it was denying Benjamin’s resentencing petition

because substantial evidence supported a finding, beyond a reasonable doubt, 

that Benjamin was either the actual shooter of Swarbrick or he directly aided 

and abetted the actual shooter.

For this reason, the parties’ supplemental briefing on People v. 

Burgess (2023) 88 Cal.App.5th 592 (Burgess) misses the mark. In Burgess, 

the appellate court concluded the prosecution failed to prove beyond a 

reasonable doubt that the defendant could have been found guilty of murder 

under the current law. (Id. at p. 595.) The defendant had been convicted of 

first degree felony murder and attempted robbery, with attempted robbery as 

the predicate felony. (Id. at p. 599.) Although the appellate court found the 

trial court, in ruling on the resentencing petition, acted properly by 

independently determining whether the defendant had committed attempted 

robbery (id. at p. 602), it concluded there was insufficient evidence to support 

the trial court’s finding as to attempted robbery because the evidence 

established only that the defendant had committed attempted theft by false 

pretenses (id. at p. 606). Because attempted theft by false pretenses is not a 

predicate felony for felony murder, the appellate court concluded the 

defendant could not be found guilty of murder under the current law. (Ibid.)

The facts here, however, are materially distinguishable from those in 

Burgess. As noted above, Benjamin was not prosecuted on a felony-murder 

theory and the trial court did not rely on the felony-murder doctrine in 

denying Benjamin’s section 1172.6 petition.
14

Similarly, the fact that the jury was instructed at trial on a 

natural and probable consequences theory of murder does not warrant

reversal of the trial court’s finding. As the court correctly noted, the 

prosecutor never argued the natural and probable consequences doctrine at 

trial. Where the jury is instructed on the natural and probable consequences 

doctrine but the prosecutor does not argue that theory to the jury but actually 

argues the defendant intended to commit all the charged offenses, we assume 

the jury did not rely on that doctrine. (People v. Estrada (2022) 77 

Cal.App.5th 941, 948; People v. Rivas (2013) 214 Cal.App.4th 1410, 1432; see 

People v. Prettyman (1996) 14 Cal.4th 248, 273.)

We also reject Benjamin’s argument that the trial court failed to 

act as an independent fact finder in conducting a review of the transcript of 

the trial proceedings, but instead simply adopted factual findings or legal 

conclusions from the appellate court’s earlier opinion affirming Benjamin’s 

conviction. Nothing in the record supports this argument. The court’s written 

ruling on Benjamin’s petition states that the court had considered the record 

of conviction, which necessarily includes the trial transcript. Indeed, the 

court stated on the record at the hearing on the order to show cause that he 

was “intimately familiar” with the facts of the case. Benjamin provides no 

basis for us to question or reject the court’s statements.

7 Moreover, the court’s 

reference to a statement in the prior appellate opinion that “wasting” 

someone is a synonym for killing them does no more than reiterate the well7

In requesting that this court take judicial notice of the superior 

court’s records of Benjamin’s trial proceedings, including the transcripts of 

the trial, Benjamin’s appellate counsel noted: “Indeed, the trial transcripts 

are relevant to this appeal in that the court, in denying his section 1172.6 

petition, expressly relied on the entire record of conviction, including the 

evidence presented at appellant’s 1993 trial.” (Italics added.)
15

known definition of the slang term. It certainly does not amount to an 

abdication by the court of its responsibility to independently review the trial 

transcript to determine if it contains substantial evidence that Benjamin was 

guilty beyond a reasonable doubt of both murders, either as a direct 

perpetrator or as a direct aider and abettor of the shooter. 

DISPOSITION

The postjudgment order denying Benjamin’s petition for 

resentencing is affirmed.

GOODING, J.

WE CONCUR:

O’LEARY, P. J.

MOTOIKE, J.