People v. Rosales CA2/2 ( 2022 )

Filed 4/26/22 P. v. Rosales CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B312638
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA121229)
v.
MANUEL ROSALES, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Larry P. Fidler, Judge. Affirmed.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 1997, defendant and appellant Manuel Rosales, Jr., was
convicted by a jury of first degree murder (Pen. Code, § 187, subd.
(a))1 and five counts of attempted murder (§§ 664/187, subd. (a)).
The jury also found true the allegation that defendant personally
used a firearm (§ 12022.5, subd. (a)).2 He was sentenced to life in
state prison for a term of 54 years 8 months to life.
Defendant timely appealed his conviction, and on April 1,
1999, we modified the judgment to reflect a restitution fine of
$5,000 and otherwise affirmed. (People v. Rodriguez (Apr. 1,
1999, B115165 [nonpub. opn.], at p. 24.) In 2019, defendant filed
a petition for resentencing pursuant to section 1170.95. Over the
People’s opposition, the trial court found that defendant had
established a prima facie case for relief, issued an order to show
cause, and held an evidentiary hearing pursuant to section
1170.95, subdivision (d).
After the evidentiary hearing, at which no party introduced
new evidence, the trial court denied defendant’s petition.
Defendant timely filed a notice of appeal.
We affirm the trial court’s order.
FACTUAL BACKGROUND
“[Defendant’s] conviction[] resulted from the shootings
which caused the death of three-year-old Stephanie Kuhen, a
passenger in a car whose driver drove down the wrong street and
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Defendant’s codefendants, Anthony Rodriguez (Rodriguez)
and Hugo Gomez (Gomez) were also convicted.
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found himself in gang territory.” (People v. Rodriguez, supra,
B115165, at p. 2.)
In defendant’s direct appeal, he “assert[ed] that although
he was convicted on an aiding and abetting theory, there was no
evidence he intended to aid and abet the others in the murder of
Stephanie Kuhen.” (People v. Rodriguez, supra, B115165, at
p. 17.) “[S]ince he did not fire the fatal bullet and only
commenced firing after the fatal injury was inflicted,” he claimed
that he could not be convicted of murder. (Ibid.) We rejected
that argument, noting the prosecution’s argument “that each of
the three appellants [Rodriguez, Gomez, and defendant] was
guilty of the murder of Stephanie Kuhen either as the actual
perpetrator or as an aider and abettor. The evidence established
that, prior to the shooting incident, all three appellants were
among the individuals, some of whom were visibly armed, who
confronted the driver of the brown car which entered the alley,
leading to the reasonable inference that they were engaged in the
joint venture of protecting their territory from intruders.” (Id. at
p. 18, fn. omitted.) When the driver tried to escape the alley,
Rodriguez and Gomez began firing at the vehicle. “Whether or
not [defendant] was able to see these events, he certainly heard
the gunshots.” (Ibid.) When the car was finally able to pull
away, defendant “chased after the car and repeatedly fired at it.
He was thus an aider and abettor in the murder in that he aided
or promoted the commission of the murder with knowledge of his
confederates’ unlawful purpose and the intent to commit or
facilitate the commission of the crime, and he was an aider and
abettor at the time Rodriguez and Gomez fired their shots. It
cannot be said under any interpretation of the evidence that
[defendant] only formed the requisite intent as an aider and
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abettor after Rodriguez and Gomez finished firing. Nor can it be
said under any interpretation of the evidence that [defendant] did
not chase the car and fire at it with the intent to kill the
occupants. The fact that Stephanie Kuhen had already been
fatally shot does not detract from [defendant’s] role as an aider
and abettor in the criminal enterprise.” (Id. at p. 19, fn. omitted.)
PROCEDURAL BACKGROUND
I. Section 1170.95 Petition
In 2019, defendant filed a petition to be resentenced
pursuant to section 1170.95.
II. The People’s Opposition
The People opposed defendant’s petition, arguing that
because defendant could still be convicted of murder as a direct
aider and abettor, he was not entitled to resentencing relief.
III. Hearing on Defendant’s Petition and Trial Court Order
After issuing an order to show cause, the trial court held a
hearing on defendant’s petition. No party introduced new
evidence.
Ultimately, the trial court denied defendant’s petition. In
so ruling, the trial court noted: “The theory of natural and
probable consequences was not presented to the jury. The only
felony murder theory given to the jury was for second degree
murder, which the jury rejected. [Defendant] was convicted as an
aider and abettor.
“At the hearing, counsel for [defendant] argued that ‘he was
not a major participant who acted with a reckless indifference to
human life in these activities.’ The evidence shows, as set forth
[in the prior appellate opinion], beyond a reasonable doubt he
was. But in any event, the above quote is only relevant if a
defendant was convicted under a felony murder theory [citation].
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“[Defendant] could still be prosecuted and convicted beyond
a reasonable doubt under P.C. Sections 188 and 189.”
The trial court then added that “[p]rotecting gang turf may
establish a motive to kill.”
DISCUSSION
I. Relevant law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Sen. Bill 1437) 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this,
Sen. Bill 1437 amended sections 188 and 189. (Stats. 2018,
ch. 1015, §§ 2-3.) As amended, section 188 provides: “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) As added by Sen.
Bill 1437, section 189, subdivision (e), provides: “‘A participant in
the perpetration or attempted 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. [¶] ‘(2) The person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] ‘(3) The person was
a major participant in the underlying felony and acted with
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reckless indifference to human life. . . .’” (See People v. Ramirez
(2019) 41 Cal.App.5th 923, 928.)
Sen. Bill 1437 also added section 1170.95, which provides a
mechanism whereby people “who believe they were convicted of
murder for an act that no longer qualifies as murder following
the crime’s redefinition in 2019[] may seek vacatur of their
murder conviction and resentencing by filing a petition in the
trial court.” (People v. Drayton (2020) 47 Cal.App.5th 965, 973.)
In order to obtain resentencing relief, the petitioner must
file a facially sufficient section 1170.95 petition. (§ 1170.95,
subds. (a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial
court proceeds to section 1170.95, subdivision (c), to assess
whether the petitioner has made a prima facia showing for relief,
thereby meriting an evidentiary hearing. (People v. Lewis (2021)
11 Cal.5th 952, 957.) When making this determination, “the trial
court should assume all facts stated in the section 1170.95
petition are true. [Citation.] The trial court should not evaluate
the credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law . . . . [I]f the
record ‘contain[s] facts refuting the allegations made in the
petition . . . the court is justified in making a credibility
determination adverse to the petitioner.’ [Citation.] However,
this authority to make determinations without conducting an
evidentiary hearing . . . is limited to readily ascertainable facts
from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of
discretion (such as determining whether the petitioner showed
reckless indifference to human life in the commission of the
crime).” (People v. Drayton, supra, 47 Cal.App.5th at p. 980; see
also People v. Lewis, supra, at pp. 970–971.) In other words, a
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defendant is ineligible for relief only where the record
conclusively shows that the jury actually relied—and the
defendant’s murder conviction actually rests—upon a theory of
liability that is unaffected by section 1170.95.
If the trial court determines that the petitioner has made a
prima facie showing of entitlement to relief, it must issue an
order to show cause and hold an evidentiary hearing. (§ 1170.95,
subd. (c).) At the evidentiary hearing, the parties may rely upon
evidence in the record of conviction or new evidence to
demonstrate whether the petitioner is eligible for resentencing.
(§ 1170.95, subd. (d)(3).) The prosecution bears the burden of
proving, “beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) If the
prosecution cannot meet its burden, and the petitioner prevails,
he is entitled to vacatur of the murder conviction and
resentencing as set forth in section 1170.95, subdivision (e).
II. The trial court properly denied defendant’s petition for
resentencing
A. Defendant was ineligible for section 1170.95 relief as a
matter of law
As pointed out by the People, the trial court could have
denied defendant’s petition at the prima facie stage. “Section
1170.95 applies only to persons ‘convicted of felony murder or
murder under a natural and probable consequences theory.’”
(People v. Medrano (2021) 68 Cal.App.5th 177, 182.) Defendant
here was not so convicted. As the trial court expressly found,
“[t]he only felony murder theory given to the jury was for second
degree murder, which the jury rejected” by convicting defendant
of first degree murder. And, as noted in our prior opinion, “[t]his
case was not argued, nor was the jury instructed, on the theory of
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natural and probable consequences.” (People v. Rodriguez, supra,
B115165, at p. 18, fn. 11.)
Urging us to reverse, defendant argues that he may have
been convicted under another imputed malice theory. And,
according to defendant’s argument in his reply brief, Senate Bill
No. 775 (Reg. Sess. 2021-2022), which amended section 1170.95
effective January 1, 2022, “made clear that resentencing under
section 1170.95 is not limited to murders prosecuted under a
theory of felony-murder or the natural and probable
consequences doctrine. Instead, it now reaches cases prosecuted
pursuant to a ‘theory under which malice is imputed to a person
based solely on that person’s participation in a crime.’” He
asserts that the “improper theory is revealed by” CALJIC
No. 3.00, which instructed the jury that “[e]ach principal,
regardless of the extent or manner of participation is equally
guilty.” Relying upon People v. McCoy (2001) 25 Cal.4th 1111(McCoy), People v. Samaniego (2009) 172 Cal.App.4th 1148(Samaniego), and People v. Nero (2010) 181 Cal.App.4th 504(Nero), defendant argues that the “‘equally guilty’ language”
allowed the jury to impute his intent to kill from the intent of his
codefendants. We disagree.
“What McCoy, Samaniego, and Nero stand for . . . is the
unremarkable proposition that the extent of an aider and
abettor’s liability is dependent upon his particular mental state,
which may, under the specific facts of any given case, be the same
as, or greater or lesser than that of the direct perpetrator.
[Citation.] Samaniego and Nero take the matter a step
further. . . by holding that pattern aiding and abetting
instructions, to the extent they describe aiders and abettors and
direct perpetrators as being ‘equally guilty,’ may be misleading
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under certain circumstances.” (People v. Mejia (2012) 211
Cal.App.4th 586, 624.)
While the phrase “equally guilty” in CALJIC No. 3.00
might be misleading and confusing in certain cases (Nero, supra,
181 Cal.App.4th at p. 518), there is no indication that the jury
here was confused and mistakenly convicted defendant based
upon his codefendants’ intent. After all, the jury was also
instructed with CALJIC No. 3.01.3 Any potential misdirection in
CALJIC No. 3.00 was cured by CALJIC No. 3.01’s clear
requirement of what the jury had to find in order to convict
defendant as an aider and abettor. (People v. Amezcua and
Flores (2019) 6 Cal.5th 886, 917–919.)
Furthermore, the trial court instructed the jury with
CALJIC No. 8.66: In order to prove attempted murder it had to
find that defendant “harbored express malice aforethought,
namely, a specific intent to kill unlawfully another human being.”
By convicting defendant of multiple counts of attempted
murder—of which he was a direct perpetrator—the jury
necessarily found that he harbored an intent to kill.
Finally, as set forth in our prior opinion, defendant and his
codefendants “were engaged in the joint venture of protecting
their territory from intruders.” (People v. Rodriguez, supra,
B115165, at p. 18.) Given their collaboration and cooperation in
3 CALJIC No. 3.01 provides, in relevant part: “A person aids
and abets the [commission] [or] [attempted] commission] of a
crime when he or she, [¶] (1) with knowledge of the unlawful
purpose of the perpetrator and [¶] (2) with the intent or purpose
of committing or encouraging or facilitating the commission of
the crime, and [¶] (3) by act or advice aids, promotes, encourages
or instigates the commission of the crime.”
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executing these crimes, the evidence does not in any way suggest
that defendant had a different state of mind than his
codefendants. (See, e.g., People v. Sandoval (1992) 4 Cal.4th 155,
175 [protecting gang “turf” may establish a motive to kill].)
B. After the evidentiary hearing, the trial court
determined beyond a reasonable doubt that defendant was guilty
of murder under current law
The trial court properly denied defendant’s petition for
resentencing because, after the evidentiary hearing, the trial
court acted as an independent factfinder and determined, beyond
a reasonable doubt, that defendant was guilty of murder under
current law. (People v. Duchine (2021) 60 Cal.App.5th 798, 813–
814.)
Urging us to reverse, defendant argues that the trial court
“expressly utilized the wrong burden of proof in denying the
petition, stating, ‘The petitioner could still be prosecuted and
convicted beyond a reasonable doubt under P.C. sections 188 and
189.’” Defendant ignores the trial court’s prior comment that
“[t]he evidence shows . . . beyond a reasonable doubt [that
defendant] was” a major participant who acted with reckless
indifference to human life. When read in context, these
comments show that the trial court correctly acted as an
independent factfinder. (Los Angeles Unified School District v.
Torres Construction Corp. (2020) 57 Cal.App.5th 480, 500 [“The
court’s comments as a whole show a correct understanding of the
law”].)
Defendant resists this conclusion by arguing that the trial
court’s comment regarding defendant’s status as a major
participant who acted with reckless indifference to human life
would only be informative if defendant had been convicted under
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a theory of felony murder, which he was not. Regardless of
whether defendant is correct that the “major participant who
acted with reckless indifference” standard only applies in the
context of felony murder, that observation does not compel the
conclusion that the trial court did not act as an independent
factfinder when it denied defendant’s petition on other grounds.
No remand is necessary.4
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
4 In light of our determination that (1) defendant’s petition
could have been denied at the prima facie stage, and (2) the trial
court applied the correct standard of review, we need not reach
defendant’s argument that the trial court’s alleged application of
an improper burden of proof constitutes prejudicial error. We
also do not address defendant’s contention that the alleged error
violated his constitutional rights.
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