People v. Rocha CA3

Filed 10/19/22 P. v. Rocha CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Calaveras) ----

THE PEOPLE, C094841

Plaintiff and Respondent, (Super. Ct. No. F3428A)

v.

DANIEL MAURICE LESSIUE ROCHA,

Defendant and Appellant.

In 2007, a jury found defendant Daniel Maurice Lessiue Rocha guilty of first degree murder, unlawful possession of a firearm, and offering a bribe to a correctional officer. The jury found true a street gang allegation, a firearm enhancement, and a prior strike allegation. In 2019, after we affirmed his direct appeal, defendant petitioned under

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Penal Code1 section 1170.95 (now section 1172.6)2 for relief due to changes to the felony-murder rule. The trial court denied the petition. Defendant appealed and we remanded for further proceedings. (People v. Rocha (Nov. 30, 2020, C090198) [nonpub. opn.].) Defendant filed a second petition under section 1170.95, and the trial court appointed counsel but found the petition failed to make a prima facie case. Defendant again appealed. On appeal, defendant contends, and the People agree, that in denying defendant’s petition, the trial court engaged in improper factfinding at the prima facie stage. We reverse and remand. FACTUAL BACKGROUND3 One night, defendant and Donald Pinon, members of the Norteños street gang, broke into James McLain’s room, and then shot and killed his housemate, David Jessop. (People v. Rocha, supra, C057538, C057715.) At trial, there was evidence defendant was present during the killing of Jessop, and he may have been the shooter. There was also testimony that he was not the shooter. Prior to deliberations, the jury received multiple instructions regarding murder and the accompanying enhancements. (People v. Rocha, supra, C057538, C057715.) Pursuant to CALCRIM No. 521, the jury was instructed that defendant was being prosecuted under

1 Undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and conformity with the petition, we will refer to the statute as section 1170.95 throughout the opinion. 3 The facts are taken from our opinion in defendant’s direct appeal. (People v. Rocha (Sept. 1, 2009, C057538, C057715) [nonpub. opn.].)