Filed 1/20/21 P. v. Arocha CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, 

v.

RUDY AROCHA,

Defendant and Appellant.

 B302196

 (Los Angeles County

 Super. Ct. No. A989460)

APPEAL from a post-judgment order of the Superior Court 

of Los Angeles County, Ray G. Jurado, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri and Nancy Lii Ladner, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

In 2018, the Legislature changed felony murder law. 

(Stats. 2018, ch. 1015, § 3.) A participant in the perpetration of a 

designated felony offense can now be guilty of felony murder only 

if (1) “[t]he person was the actual killer”; (2) the person, with 

intent to kill, aided and abetted a first degree murder; or (3) the 

person was a major participant in the underlying felony and 

acted with reckless indifference to human life. (Pen. Code,1§ 189, 

subd. (e).) The Legislature also enacted a petitioning mechanism, 

now codified at section 1170.95, to allow offenders previously 

convicted of murder by trial or plea to seek resentencing if they 

could not be convicted of murder under the recently enacted 

changes to felony murder law. Defendant Rudy Arocha 

(defendant) filed such a petition and the trial court denied it, 

finding the facts associated with his guilty plea to second degree 

murder established he was the actual killer. We consider 

whether defendant is ineligible for relief as an actual killer even 

though his fatal shooting of the victim was accidental.

I. BACKGROUND

A. The Murder and Defendant’s Guilty Plea

In June 1989, the Los Angeles County District Attorney 

filed a felony complaint charging defendant with murder for 

killing Andrew Rodriguez. The complaint included a felony 

murder special circumstance allegation (§ 190.2, subd. (a)(17)) 

and an allegation that defendant personally used a firearm in the 

commission of the murder. By way of an amended complaint, 

defendant was also charged with robbery (§ 211).

1 Undesignated statutory references that follow are to the 

Penal Code.
3

Before the trial court held a preliminary hearing on the 

complaint, defendant accepted a plea deal to resolve the case. He 

pled guilty to second degree murder and robbery, and he

admitted the personal use of a firearm allegation. The 

prosecution agreed to strike the felony murder special 

circumstance allegation. During the plea colloquy, defendant 

(and his attorney) accepted this statement by the prosecutor as 

the factual basis for defendant’s plea: “It is our understanding in

this case that you [i.e., defendant] robbed an individual 

named . . . Sergio Quintero, and during the course of that robbery 

you accidentally shot a co-suspect, a person with whom you were 

committing that robbery, a friend named Andrew Rodriguez.”2

2 The probation report prepared in connection with 

defendant’s sentencing recites the circumstances of the offense as 

follows: “On May 13, 1989, at approximately 5:50 a.m. in the 

2000 block of South Maple Avenue, [defendant] while armed with 

a small caliber handgun and companion/victim Andrew 

Rodriguez stopped victim Sergio Quintiero on the pretext of 

asking what time it was. Either [defendant] or his 

companion/victim Rodriguez then knocked the victim Quintiero 

to the ground and companion/victim Rodriguez then started 

struggling with victim Quintiero going through his pockets, 

attempting to remove his wallet and/or property (Count Two). 

During this struggle, [defendant] displayed the small caliber 

revolver (.22 caliber) and cocked back the hammer and it 

subsequently discharged after being hit either [by] 

companion/victim Rodriguez or victim Quintiero during the 

struggle. Victim Rodriguez (Count One) was struck above the 

right eye by the discharged bullet. [Defendant] then fled the 

scene and ambulance personnel responded and the victim 

Rodriguez was then taken to the hospital and subsequently 
4

The trial court sentenced defendant to 15 years to life for 

the murder. The court imposed a concurrent three-year prison 

term for the robbery and imposed and stayed a one-year term for 

the personal use of a firearm enhancement.3

B. Defendant’s Petition for Resentencing

In April 2019, defendant filed an uncounseled section 

1170.95 petition for resentencing. With his petition, defendant 

submitted a pre-printed declaration on which he checked boxes to 

assert the complaint filed against him was premised on a theory 

of felony murder, he was convicted by plea of second degree 

murder, and he was not Rodriguez’s actual killer. Defendant 

annotated his pre-printed form declaration with various 

handwritten comments, including “robbery victim ‘resisted’ 

accidentally killing co-perp[etrator].”

The trial court appointed counsel for defendant. The 

prosecution opposed defendant’s petition and argued (among 

other things) defendant was ineligible for resentencing because 

he was the actual killer. Attached to the prosecution’s opposition 

were copies of the original felony complaint filed against 

defendant, transcripts of defendant’s plea and sentencing 

died . . . .”

We do not rely on the probation report’s recitation of these 

circumstances in resolving this appeal. We instead rely only on 

the facts defendant admitted as the factual basis for his guilty 

plea.

3

In 2008, a jury convicted defendant for a crime he 

committed while in prison. For that conviction, defendant 

received a consecutive sentence of 25 years to life. 
5

hearings, and defendant’s presentence probation report. 

Defendant’s attorney filed a reply to the prosecution’s opposition. 

In pertinent part, the reply contended the prosecution bore a 

“heavy burden” to prove defendant ineligible and implied the 

prosecution did not carry that burden because defendant 

admitted during his plea colloquy that he accidentally shot 

Rodriguez during the course of the robbery. 

The trial court denied defendant’s section 1170.95 petition 

without issuing an order to show cause. The court found

defendant was not eligible for relief because the “facts show that 

he was the actual shooter.”

II. DISCUSSION

The trial court correctly ruled defendant is ineligible for 

section 1170.95 relief. In entering his guilty pleas, defendant 

admitted he personally used a firearm and, during the course of a 

robbery, accidentally shot Rodriguez, his accomplice. These 

admissions establish there can be no dispute defendant 

personally fired the fatal shot. As we shall briefly explain, that 

makes him Rodriguez’s actual killer no matter whether the death 

was an accident. Defendant’s related claim of due process error 

in resolving his section 1170.95 petition is also meritless.

Senate Bill 1437, which became effective January 1, 2019, 

was enacted to “‘amend the felony murder rule and the natural 

and probable consequences doctrine, as it relates to murder, to 

ensure that murder liability is not imposed on a person who is 

not the actual killer, did not act with the intent to kill, or was not 

a major participant in the underlying felony who acted with 

reckless indifference to human life.’” (People v. Martinez (2019) 

31 Cal.App.5th 719, 723.) Section 1170.95, the retrospective 
6

relief provision enacted as part of Senate Bill 1437, permits an 

offender to petition for resentencing “where all three of the 

following conditions are met: ‘(1) A complaint, information, or 

indictment was filed against the petitioner that allowed the 

prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine[;] [¶] (2) 

The petitioner was convicted of first degree or second degree 

murder following a trial or accepted a plea offer in lieu of a trial 

at which the petitioner could be convicted for first degree or 

second degree murder[;] [¶] [and] (3) The petitioner could not be 

convicted of first or second degree murder because of changes to 

Section 188 or 189 made effective January 1, 2019.’ (§ 1170.95, 

subd. (a)(1)-(3).)” (Martinez, supra, 31 Cal.App.5th at 723.) 

Defendant argues the record of conviction does not 

establish he cannot satisfy the third of these conditions. He 

contends the facts in the record are insufficient to show he was 

Rodriguez’s actual killer as a matter of law. Defendant believes 

there must be evidence of what he calls “actual causation,” i.e., 

evidence he personally and directly killed Rodriquez, and he 

believes such evidence is lacking because he theorizes the actual 

killer was not him but whoever knocked the gun he was holding, 

causing it to discharge accidentally.

Defendant’s argument fails because the admissions he 

made in pleading guilty make him an “actual killer.” (§ 189, 

subd. (e) [“A participant in the perpetration . . . of a felony listed 

in subdivision (a) in which a death occurs is liable for murder 

only if one of the following is proven: [¶] (1) The person was the 

actual killer”]; see also § 189, subd. (a) [robbery is a listed 

felony].) Defendant admitted personal use of a firearm in 

connection with Rodriguez’s murder. And he also admitted he 
7

“robbed an individual named . . . Sergio Quintero, and during the 

course of that robbery [he] accidentally shot” Rodriguez. Though 

it was undisputed defendant did not intend to kill Rodriguez, 

these are still facts that leave no doubt he was personally holding 

the gun that fired the fatal shot. That makes him ineligible for 

section 1170.95 relief as an actual killer. (People v. Cornelius 

(2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, 

S260410 [affirming denial of section 1170.95 petition where the 

jury convicted defendant of second degree murder and found true 

a personal firearm discharge allegation that meant the jury found 

the defendant was the actual killer and the changes to sections 

188 and 189 were “‘inapplicable’”].)

Our focus on defendant’s admitted personal use and

discharge of the firearm when deciding whether he was the 

actual killer is consistent with the understanding of the term in 

Senate Bill 1437’s legislative history, i.e., that an actual killer is 

someone who “personally” commits an act that results in the 

victim’s death. (Assem. Com. on Public Safety, Rep. on Sen. Bill 

No. 1437 (2017-2018 Reg. Sess.) June 25, 2018, pp. 5-6 [“Under 

the provisions of this bill, an individual would not be liable for 

2nd [degree] murder under a theory of felony murder unless the 

individual personally committed the act that resulted in death”], 

italics added; Sen. Rules Com., Senate Floor Analysis of Sen. Bill 

No. 1437 (2017-2018 Reg. Sess.) May 29, 2018, p. 1 [“This bill 

revises the felony murder rule to prohibit a participant . . . to be 

imputed to have acted with implied malice, unless he or she 

personally committed the homicidal act”], italics added.) It is also 

consistent with precedent discussing the meaning of what it 

means to be an actual killer. (People v. Jennings (1988) 46 Cal.3d 

963, 979 [an actual killer for purposes of section 190.2, the felony 
8

murder special circumstance statute, is someone who “personally 

killed” the victim in the commission of the offense].) Defendant’s 

argument to the contrary, by contrast, incorrectly assumes a 

person can personally commit an act that results in death only if 

there is no other act that might also have contributed to the 

death. (See, e.g., People v. Modiri (2006) 39 Cal.4th 481, 493 

[“The term ‘personally,’ which modifies ‘inflicts’ . . . does not mean 

exclusive [¶] . . . [¶] [N]othing in the terms ‘personally’ or 

‘inflicts’ . . . necessarily implies that the defendant must act alone 

in causing the victim’s injuries”]; People v. Ollo (2019) 42 

Cal.App.5th 1152, 1154-1155, 1158, review granted Mar. 18, 

2020, S260130.)

Relying on Hicks v. Oklahoma (1980) 447 U.S. 343, 

defendant separately argues the trial court denied him a liberty 

interest without due process of law because it denied his petition 

without holding an evidentiary hearing. The argument is 

meritless because the requisite liberty interest does not exist 

here—where defendant is the one petitioning to reduce an 

existing, duly imposed criminal sentence. (See Dillon v. United 

States (2010) 560 U.S. 817, 826; In re Clark (1993) 5 Cal.4th 750, 

780 [constitutional due process guarantees demand appointment 

of counsel in postconviction proceedings “if a petition attacking 

the validity of a judgment states a prima facie case leading to 

issuance of an order to show cause”].) Defendant has a right to 

fair procedures, but the right is to those procedures specified by 

section 1170.95 itself. And there is no argument by defendant 

that those statutory procedures were not adhered to (except 

insofar as he contends there was insufficient evidence of his 

ineligibility for relief as a matter of law—an argument we have 

already rejected).
9

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.