In 2015, Jesus Alberto Rodriguez and his friend Ralph Gamboa went on a two-day crime spree in the City of Stockton in San Joaquin County, robbing and attempting to rob numerous victims. When met with resistance or perceived noncompliance with demands to hand over property, they resorted to violence.
In separate incidents on the same day, Mr. Rodriguez shot Victor D.R. in the head, but he survived.
Gamboa later appeared with a gun in the back area of a tire shop and demanded that Luis Z. give him money. Before Luis could give Gamboa the money, Gamboa shot Luis Z. and Luis Z. died. When this happened, Rodriguez got out of the passenger side of the car, got into the driver’s side and prepared to make a getaway, which he did with Gamboa.
Rodriguez also later shot and killed Javier R.
Rodriguez and Gamboa were later arrested. The jury found Rodriguez guilty of all 19 counts, including two robbery-murder special-circumstance allegations and found true 11 firearm enhancements. The judge sentenced Rodriguez to 178 years and eight months to life plus two consecutive terms of life in prison without the possibility of parole.
After Rodriguez was convicted, the California Legislature passed Senate Bill 1437, which modified the felony murder rule and abolished the natural and probable consequences doctrine as a theory of aider and abettor liability. Senate Bill 1437 also established an appellate procedure through Penal Code § 1170.95 (renumbered as § 1172.6), which is considered to have retroactive effect. People v. Gentile (2020) 10 Cal.5th 830.
Under the new felony-murder special-circumstance standards, a jury may find such special circumstance exists for an aider and abettor who either acts with intent to kill (Penal Code § 190.2(c)), or who are major participants and act with reckless indifference to human life (Penal Code § 190.2(d)). The “reckless indifference” and “major participant” elements of section 190.2(d) codify the holding in Tison v. Arizona (1987) 481 U.S. 137, 95 L. Ed. 3d 127.
Major participation is the actus reas requirement for felony-murder special-circumstance and reckless indifference is the mens rea requirement.
Rodriguez then filed a petition for resentencing under Penal Code § 1170.95, arguing the evidence was insufficient to prove he was a major participant who acted with reckless indifference to human life in the killing of Luis Z. because he was “just the getaway driver.” He was not the actual killer and the evidence was insufficient to prove he had the intent to kill Luis Z. The trial court judge denied the petition.
Rodriguez then appealed this ruling to the Third Appellate District Court of Appeal, which affirmed trial court as to the jury’s finding. Its opinion is worth a closer look to fully understand the new felony murder rule.
The opinion began by reminding the reader that the felony-murder special-circumstance applies to aiders and abettors who either act with the intent to kill, or who are major participants who act with reckless indifference to human life. People v. Clark
(2016) 63 Cal. 4th 522, 618-623.
To be a major participant, “a defendant’s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” People v. Banks (2015) 61 Cal. 4th 788.
Contrary to Mr. Rodriguez’s framing of the facts, the Third Appellate District noted, the jury need not look at one single event in isolation with a narrow scope of analysis. Instead, the jury can look to the “totality of the circumstances.”
Here, before the murder of Luis, Rodriguez attempted to rob Victor at gunpoint and shot Victor in the head. Unfazed by any of the afternoon’s events, he and his friend, Gamboa, continued their crime spree even after Luis was murdered.
Thus, under the totality of the circumstances, Rodriguez was not “just a getaway driver” in a single event. Instead, the evidence showed he and Gamboa had plans and did commit robberies together, both as major participants.
We present this summary as something of a cautionary tale for the reader because we suspect a similar argument would be or could be crafted in a seemingly clever way, which would fail like in this case involving Mr. Gamboa and Mr. Rodriguez.
The citation for the Third Appellate District Court ruling discussed above is People v. Jesus Alberto Rodriguez (3rd App. Dist., 2021) 66 Cal. App. 5th 749, 281 Cal. Rptr. 3d 383.
For more information about Senate Bill 1437 and the “major participant” analysis, please click on the following articles: