People v. Rosales CA2/5

California Court of Appeal Jul 22, 2021 No. B309118Unpublished

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Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1170.95, finding that the defendant was ineligible for relief as a matter of law because he was convicted as a direct aider and abettor and the jury was not instructed on felony murder or the natural and probable consequences doctrine.

Issues

Whether the trial court erred in denying the defendant's petition for resentencing under Penal Code section 1170.95.
Whether the defendant is entitled to relief under Senate Bill No. 1437 given the theories of liability presented at trial.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“As the record reflects, the jury was not instructed on a natural and probable consequences theory or felony murder- theory of liability, and defendant’s arguments regarding the changes enacted by Senate Bill No. 1437 therefore are inapposite.”

“Defendant cannot demonstrate eligibility for relief under section 1170.95 as a matter of law.”

Filed 7/22/21 P. v. Rosales CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B309118

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA075199) v.

JOSHUA MANUEL ROSALES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed. Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

In 2009, a jury found defendant Joshua Manuel Rosales guilty of second degree murder (Pen. Code, § 187, subd. (a))1 and found true the allegations that a principal was armed and personally and intentionally used a firearm (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c), & (e)), and that the offense was committed for the benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). The verdicts followed a trial at which “[t]he prosecution proceeded against [defendant] solely under an aiding and abetting theory, arguing that [codefendant Arturo] Gutierrez was the shooter.” (People v. Rosales (Apr. 14, 2011, B220097) [nonpub. opn.]2.) The trial court sentenced defendant to 40 years to life in state prison. On April 14, 2011, a prior panel of this Division affirmed defendant’s conviction in an unpublished opinion, concluding, among other things, that sufficient evidence supported defendant’s conviction for murder because there was “strong evidence as to each of the three elements of aiding and abetting liability.” (People v. Rosales, supra, B220097.) On May 7, 2019, defendant filed a petition to vacate his murder conviction and for resentencing pursuant to section 1170.95. On June 28, 2019, the trial court ordered the District Attorney to file a response and appointed the Alternate Public Defender to represent defendant. On August 28, 2019, the District Attorney filed a response arguing that defendant was convicted as a direct aider and

People v. Rosales CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B309118

JOSHUA MANUEL ROSALES,

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DISPOSITION

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

RUBIN, P. J.

MOOR, J.

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