California Court of Appeal Aug 13, 2025 No. E083452Unpublished
Filed 8/13/25 P. v. Ross 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083452
v. (Super.Ct.No. FSB032199)
RODNEY LEWIS ROSS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. 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, Collette C. Cavalier and Lynne
G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1
Rodney Lewis Ross appeals from the trial court’s denial of his petition for
resentencing under Penal Code section 1172.6 following an evidentiary hearing.
(Unlabeled statutory references are to the Penal Code.) We affirm.
In 2002, the People charged Ross and Kelly Brooks with one count each of
robbery (§ 211), the attempted murder of Ras Najibu Edge on September 29, 2001,
(§§ 187, subd. (a), 664), and the first degree murder of Edge on the same night (§ 187,
subd. (a)). Ross and Brooks were tried together before separate juries. (People v. Brooks
(Mar. 24, 2005, E033507) [nonpub. opn.].) Ross’s jury convicted him of attempted
murder, found true associated firearm and gang enhancement allegations, and hung on the
robbery and murder counts. Brooks’s jury convicted him of first degree murder and
robbery and found true special circumstance allegations and gang enhancement and
firearm enhancement allegations. (People v. Brooks, E033507.)
At a subsequent trial, a jury convicted Ross of one count of first degree murder
and one count of first degree residential robbery. The jury also found true special
circumstance allegations of robbery-murder and burglary-murder and a gang
enhancement allegation and several firearm enhancement allegations.
II. Trial testimony
Karmella G. testified for the prosecution in both trials. On September 29, 2001,
she and Edge were engaged to be married, and she was with Edge at his apartment.
2
Shortly after midnight, Karmella heard a commotion outside the apartment. She opened
the front door and saw Edge fighting with four men while attempting to walk up the stairs
to the apartment.1 Karmella recognized and identified Ross and Brooks as two of the
men. One of the four men pointed a gun at Edge’s head. The person attempted to pull
the trigger, but the gun did not fire. Ross yelled, “‘Shoot him. Shoot him.’” When the
gun did not fire, Edge ran into the apartment and closed the door.
Shortly after the fight, Karmella heard people running up the stairs and then
kicking the front door.2 She ran into the bedroom with Edge, where they hid in a closet.
Ross and Brooks came into the bedroom, and one of them “snatched” Edge from the
closet and threw him onto the bedroom floor. Ross carried a handgun, and Brooks had a
shotgun. Ross demanded, “‘You have five seconds to give me the money and dope.’”
Edge gave Ross some drugs, but Ross was not satisfied with the amount. Ross hit Edge
on the side of the head with the gun. Brooks then stepped forward and shot Edge with a
shotgun from a distance of about one foot. Edge died as a result of a shotgun wound to
his abdomen.
1 We take the facts about the fight on the stairs from Karmella’s testimony at the first trial, because the attempted murder conviction was based on what occurred during that fight and Karmella’s testimony in the two trials varied in a way significant to that conviction.
2 We take the facts about the events that occurred after the fight from Karmella’s testimony at the second trial, because the murder conviction was based on the events that transpired in Edge’s apartment after the fight.
3
Ross’s defense at trial was that he was not with Brooks at Edge’s apartment when
Brooks killed Edge. Ross did not testify at trial. Kristie A. testified for the defense as an
alibi witness.3 She testified that Ross, Brooks, and two other men were at her apartment
the night of the killing. The four men left her apartment around 10:30 p.m. and returned
about 30 minutes later. Upon their return, Brooks said that he and Ross had fought with
someone in a nearby apartment complex. Brooks said that he pulled out a gun, but it
jammed. Brooks repeatedly said that he was going to return to kill the person.
Brooks eventually left Kristie’s apartment with two other men. Ross stayed
behind at Kristie’s for about 10 minutes and then left to go elsewhere to eat. Brooks
returned 10 minutes later. Brooks was covered in blood and said that he killed Edge.
Brooks’s brother, who was at Kristie’s apartment, left to get Brooks a change of clothes
and later returned with Ross, who attempted to calm down Brooks.
III. Closing argument
In closing argument at Ross’s second trial, the prosecutor argued that Ross was
“guilty as charged of everything” based on the evidence that he broke into Edge’s
apartment, chased him and Karmella into the bedroom closet, and beat Edge over the
head before Brooks pulled the trigger and killed Edge.
Defense counsel argued that Ross was not in Edge’s apartment when Brooks killed
Edge. He surmised that Karmella misidentified Ross.
3 Kristie testified at the first trial but was unavailable at the second trial, so her previous testimony was read to the jury.
4
IV. Section 1172.6 proceeding
In October 2022, Ross filed a petition for resentencing under former section
1170.95 (now section 1172.6). The trial court appointed counsel for Ross, found that
Ross had stated a prima facie case for relief, and issued an order to show cause.
Ross testified at the subsequent evidentiary hearing. Ross admitted that he,
Brooks, and others had fought with Edge the night that Edge was killed, but Ross said he
was not present when Edge was killed. Ross said that he stayed at Kristie’s apartment
when Brooks later returned to Edge’s apartment, and Ross did not return to that
apartment.
Both counsel argued after Ross testified. The People questioned Ross’s
credibility, pointing out inconsistencies with his version of events and those provided by
Kristie at trial. The court interjected: “I mean, the jury didn’t buy the alibi defense. I
don’t believe that you can use this proceeding to ask the Court to come to a conclusion
that is contrary to what the jury found.” The People clarified that they were not
relitigating the issue and just noting that Ross was not credible. The People otherwise
argued that the evidence proved that Ross aided and abetted, instigated, and facilitated
the intentional killing of Edge beyond a reasonable doubt.
Ross’s counsel argued: “I believe that under the new law, I don’t believe that Mr.
Ross’s conduct, as he testified to today in court, indicates that he was at all involved in
the murder. He was merely involved in a fight.” With respect to counsel’s claim that
Ross was not present for the commission of the robbery and murder offenses, the court
5
repeated what it had told the People: “Because the jury found that he was [present]. And
like I said, I don’t think you can use this proceeding to say, ‘We disagree with that
finding from the jury.’ The jury already determined that.” Defense counsel argued that
the People had not proved beyond a reasonable doubt that Ross acted as an aider or
abettor or as a major participant in the underlying felony and with reckless indifference to
human life.
The trial court denied the petition, concluding that the People proved beyond a
reasonable doubt that Ross was guilty of attempted murder and murder under now-valid
theories. As to the murder count, the court found that the People proved beyond a
reasonable doubt both that Ross had “actual intent to kill when he aided and abetted Mr.
Brooks” and that Ross was a major participant in the robbery and acted with reckless
indifference to human life.
DISCUSSION
Ross contends that the trial court prejudicially erred by considering itself bound by
the jury’s findings, thus precluding Ross from relitigating the alibi defense that he raised
The bill also created section 1172.6 (originally codified as section 1170.95) as a
mechanism for retroactive application of those changes in the law. (People v. Strong
(2022) 13 Cal.5th 698, 708 (Strong).) A person convicted under a now-invalid theory of
murder liability can petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if the individual could not now be convicted of
murder because of the changes to sections 188 and 189. (§ 1172.6, subd. (a).)
If a petitioner makes a prima facie showing that they are entitled to resentencing
relief under section 1172.6, the trial court must issue an order to show cause and hold an
evidentiary hearing to determine whether to vacate the murder conviction and resentence
the petitioner on any remaining counts. (§ 1172.6, subds. (c), (d)(1).)
7
Section 1172.6, subdivision (d)(3) (section 1172.6(d)(3)), provides that at the
evidentiary hearing, “the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189 made effective January
1, 2019. The admission of evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. . . . The prosecutor and the petitioner
may also offer new or additional evidence to meet their respective burdens.”
“On appeal from the denial of a section 1172.6 petition after an evidentiary
hearing, we review the superior court’s factual findings for substantial evidence and the
court’s application of the law to those facts de novo.” (People v. Hill (2024) 100
Cal.App.5th 1055, 1066.)
Ross argues that the trial court erred by declining to consider his alibi defense.
We disagree. The court correctly determined that the factual finding that Ross was
actually present when Edge was killed is beyond the scope of the issues that can be
relitigated in a section 1172.6 proceeding.
Although the trial court does act as an independent factfinder at the evidentiary
hearing (People v. Schell (2022) 84 Cal.App.5th 437, 442), the court’s factual
determinations are “limited to the issues made relevant by the changes to the law effected
by Senate Bill 1437” (Gomez v. Superior Court (2024) 100 Cal.App.5th 778, 787). At
8
the evidentiary hearing, “the trial judge is charged with determining, beyond a reasonable
doubt, if the petitioner is guilty of murder under a theory that remains valid after the
amendments to the substantive definition of murder.” (People v. Vargas (2022) 84
Cal.App.5th 943, 952 (Vargas).) “Although the parties may offer new or additional
evidence to meet their respective burdens, section 1172.6, subdivision (d)(3) does not
contemplate a whole new trial on all the elements of murder.” (Ibid.; People v. Clements
(2022) 75 Cal.App.5th 276, 298 (Clements) [same]; People v. Daniel (2020) 57
Cal.App.5th 666, 678 (Daniel) [§ 1172.6 does not “authorize[] a defendant to present
new evidence to undermine a jury’s finding of guilt under a particular theory of murder,
effectively retrying the case”].) “Instead, the parties will focus on evidence made
relevant by the amendments to the substantive definition of murder.” (Clements, at
p. 298.) “Thus, the focus at the evidentiary hearing phase of an 1172.6 petition is ‘on
evidence made relevant by the amendments to the substantive definition of murder,’
which, in the context of section 188, requires ‘the prosecution to prove that all principals
to a murder acted with malice aforethought.’” (Vargas, at p. 952, quoting Clements, at
p. 298.)
By convicting Ross of murder and robbery, the jury necessarily rejected his alibi
defense and found that he was present with Brooks when Brooks killed Edge. The
prosecution did not proceed under any theory of murder liability not predicated on Ross’s
presence at the scene. Likewise, no theory was presented under which Ross could be
found guilty of robbery or the robbery-murder or burglary-murder special allegations
9
could be found true if Ross was not present in the apartment when the robbery and the
burglary occurred.
The purpose of the section 1172.6(d)(3) evidentiary hearing was not to relitigate
whether Ross was present but rather to determine the extent of Ross’s involvement in the
crime under a now-valid theory of murder liability. (Daniel, supra, 57 Cal.App.5th at
p. 678 [rejecting argument from a defendant convicted as an actual killer that he could
present evidence at an evidentiary hearing that he was an aider and abettor].) The role of
the court was limited to ascertaining whether Ross aided and abetted Brooks with the
intent to kill (§ 189, subd. (e)(2)) or “was a major participant in the underlying felony and
acted with reckless indifference to human life” (id., subd. (e)(3)). Ross could not
relitigate factual findings not relevant to those issues and thereby “effectively retry[] the
case.” (Daniel, at p. 678; Clements, supra, 75 Cal.App.5th at p. 298.) Relitigating
Ross’s alibi defense was not an issue “‘made relevant by the amendments to the
substantive definition of murder,’” so the jury’s factual finding rejecting that defense
could not be relitigated at the evidentiary hearing. (Vargas, supra, 84 Cal.App.5th at
p. 952.) As the Supreme Court has explained, the Legislature did not intend section
1172.6 “to permit wholesale relitigation of findings supporting murder convictions in the
context of section 1172.6 resentencing.” (Strong, supra, 13 Cal.5th at p. 715; Curiel,
supra, 15 Cal.5th at p. 451.)
Moreover, section 1172.6 does not authorize a court to vacate a robbery
conviction. (§ 1172.6, subd. (a).) Rather, section 1172.6 would permit the court to
10
resentence Ross on the robbery count, but only if the court vacated the murder conviction
or the attempted murder conviction. (§ 1172.6, subds. (a), (d)(1).) Ross’s alibi defense
applies equally to the robbery count and to the murder count. Therefore, because the trial
court was not permitted to vacate the robbery conviction, it likewise was not permitted to
second-guess the jury’s rejection of Ross’s alibi defense.
For these reasons, we conclude that Ross’s challenge to the trial court’s order
denying his section 1172.6 petition fails.
DISPOSITION
The order denying Ross’s petition for resentencing under section 1172.6 is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
McKINSTER Acting P. J.
MILLER J.
11
AI Brief
AI-generated · verify before citing
Holding. The trial court properly denied the defendant's petition for resentencing under Penal Code section 1172.6 because the defendant could not use the evidentiary hearing to relitigate factual findings, such as his alibi defense, that were not made relevant by the statutory amendments to the definition of murder.
Issues
Whether a defendant may relitigate an alibi defense at a Penal Code section 1172.6 evidentiary hearing.
Whether the trial court erred by considering itself bound by the jury's original factual findings regarding the defendant's presence at the crime scene.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court’s factual determinations are “limited to the issues made relevant by the changes to the law effected by Senate Bill 1437””
“the Legislature did not intend section 1172.6 “to permit wholesale relitigation of findings supporting murder convictions in the context of section 1172.6 resentencing.””