People v. Villalobas CA2/6

Filed 8/15/22 P. v. Villalobas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B311695 (Super. Ct. No. BA220761) Plaintiff and Respondent, (Los Angeles County)

v.

ROLANDO VILLALOBOS,

Defendant and Appellant.

In 2002, Rolando Villalobos was convicted, by jury, of conspiracy to commit murder, attempted murder and second degree murder. We affirmed the conviction in an unpublished opinion. (People v. Villalobos (June 3, 2003, B157098) (Villalobos).) In 2019, appellant filed a petition for resentencing under Penal Code former section 1170.95 (now § 1172.6).1 The

All statutory references are to the Penal Code unless 1

otherwise stated. Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute as section 1172.6.

trial court appointed counsel to represent appellant and, after reviewing the parties’ briefs, denied the petition on the ground that appellant was ineligible for resentencing because he was convicted of provocative act murder rather than felony murder or murder on a natural and probable consequences theory. Appellant contends the trial court erred because the jury instructions at his trial would have allowed the jury to convict him by imputing to him the malice of the person who committed the provocative act, without finding that appellant personally had the intent to kill. We affirm. Facts Our opinion in appellant’s previous appeal contains the following statement of facts: “Paul Rodarte was a member of the 38th Street gang. Appellant and Jesse [also known as Jesus] Morales were ‘associates’ who had not been initiated into the gang. All three were present at a party when a member of the rival Barrio Mojadas (BMS) gang drove by and shot at them. Intending to retaliate, Rodarte and Morales got into appellant’s car and he drove them into BMS gang territory at 49th and Compton. Rodarte was in the front passenger seat and Morales was seated in the rear. Rodarte reached across appellant and fired a handgun through the open driver’s side window at ‘some bald- headed individuals on the sidewalk.’ Someone returned fire, fatally wounding Morales.” (Villalobos, supra, B157098, slip opn. at p. 2, fn. omitted.) Discussion Appellant contends he is eligible for relief under section 1172.6 because he did not commit the provocative act and the jury could have convicted him of murder, attempted murder and