People v. Rosser CA2/1 ( 2023 )

Filed 7/31/23 P. v. Rosser CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B320512
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA040826)
v.
ANTHONY JOHN ROSSER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Norman J. Shapiro, Judge. Affirmed.
Eric R. Larson, 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, Daniel C. Chang and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
In January 1992, a jury found Anthony John Rosser guilty
of one count of first degree murder and one count of willful,
deliberate, and premeditated attempted murder. As to each
count, the jury found true the allegation that a principal was
armed with a firearm. At trial, the prosecution presented
evidence that Rosser drove a car, chasing the victims, as his
passenger fired upon the victims during a gang-related, car-to-car
shooting. Rosser was tried alone. The jury was instructed that it
could return a verdict of first degree murder if it found, in
pertinent part, “that the killing was preceded and accompanied
by a clear, deliberate intent on the part of the defendant [Rosser]
to kill, which was the result of deliberation and
premeditation . . . .”
In August 2021, Rosser filed a form petition for
resentencing under Penal Code former section 1170.95 (now
section 1172.6), a statute which currently authorizes relief for,
among others, persons convicted of murder or attempted murder
under the natural and probable consequences doctrine (or felony
murder).1 In a response to the petition, the district attorney
asserted Rosser could not make a prima facie case for relief
because his record of conviction demonstrates his jury was not
instructed on the natural and probable consequences doctrine or
felony murder, and he could not have been convicted under either
theory of liability. The district attorney attached to the response
an excerpt of the reporter’s transcript of Rosser’s trial, reflecting
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). In this opinion, we typically refer to the statute by
its current designation, section 1172.6.
Undesignated statutory references are to the Penal Code.
2
that the trial court did not read to the jury any instruction on the
natural and probable consequences doctrine or felony murder.
Rosser’s appointed counsel did not file a reply brief in support of
the petition for resentencing or present argument at the hearing
to determine whether Rosser made a prima facie case for relief.
The trial court denied the petition for resentencing without
issuing an order to show cause and holding an evidentiary
hearing, stating in its minute order that the district attorney
presented facts indicating the petition is without merit.
On appeal, Rosser contends the trial court denied his
petition for resentencing based on a misapprehension of his
record of conviction, and the matter must be remanded for an
evidentiary hearing. We granted his request for judicial notice of
the appellate record in his direct appeal of his convictions.
Consistent with the assertions the district attorney made in the
response to the petition for resentencing, the reporter’s transcript
of Rosser’s trial shows the trial court declined the prosecution’s
request to instruct the jury on the natural and probable
consequences doctrine, the court did not read such an instruction
to the jury (or an instruction on felony murder), and the
prosecution did not advance such a theory to the jury. However,
the clerk’s transcript from the direct appeal—which was not
presented to the court in connection with the petition for
resentencing—indicates the trial court included a jury instruction
on the natural and probable consequences doctrine in the packet
of written instructions provided to the jury.
We affirm the order denying the petition for resentencing
because Rosser’s record of conviction shows he is ineligible for
relief under section 1172.6 as a matter of law, notwithstanding
the apparent inadvertent inclusion of a natural and probable
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consequences doctrine instruction in the packet given to the jury.
As explained below, the jury instructions on premeditation and
deliberation, among others, and the jury’s verdicts demonstrate
the jury necessarily found Rosser acted with intent to kill when
he aided and abetted the murder and attempted murder.
BACKGROUND
We granted Rosser’s request for judicial notice of the
opinion in the direct appeal of his convictions (People v. Rosser
(Aug. 3, 1993, B066593 [nonpub. opn.]) and the appellate record
in the direct appeal. To give context to Rosser’s contentions in
this appeal, we provide a brief overview of the circumstances of
the shooting, taken from the record in the direct appeal.2 These
facts are not material to our legal analysis, and we do not rely on
them as the basis for affirming the trial court’s order denying
Rosser’s petition for resentencing. As discussed below, the jury
instructions given at Rosser’s trial and the jury’s verdicts
demonstrate Rosser is ineligible for resentencing under section
1172.6 as a matter of law.
I. Trial and Direct Appeal
A. Evidence of the circumstances of the shooting
In January 1992, Rosser was tried alone for the murder of
William Pineda (count 1) and the attempted murder of Lemel
Jackson (count 2). Jackson testified at trial regarding the
circumstances of the shooting. He stated he was a passenger in a
car driven by decedent Pineda. Two cars drove toward them on a
narrow street and Pineda pulled over to let them pass. Jackson
2 In his opening brief in this appeal, Rosser incorporated by
reference the statement of facts from the opinion in his direct
appeal. That statement of facts is consistent with our brief
overview of the circumstances of the shooting.
4
identified defendant Rosser as the driver of the first car—a
burgundy Chevrolet Impala convertible with the top down—
which stopped next to the car Pineda was driving. Rosser had a
passenger. Rosser asked Pineda and Jackson, “ ‘What’s up,’ ” and
they responded in kind. Pineda and Jackson asked Rosser, “ ‘Are
you going to go,’ ” because Rosser’s car and the car behind him
were blocking their way. Rosser raised up in his seat and looked
at Jackson, who was wearing a blue shirt. Then, Rosser turned
around and addressed someone in the car behind him, stating,
“ ‘Bullet, hit some crabs.’ ” An officer from the Los Angeles Police
Department’s gang unit testified that Rosser was an admitted
member of a set of the Bloods criminal street gang. The officer
also testified that the Crips criminal street gang was associated
with the color blue, and Crips and Bloods were rivals. He further
testified that “ ‘crab’ ” was a derogatory term used by the Bloods
to refer to a member of the Crips.
Jackson testified that he instructed Pineda to drive away,
and Pineda did, with Jackson giving him directions on which way
to go. After they made a few turns, Jackson spotted Rosser’s car.
Jackson told Pineda to drive on the wrong side of the street, and
Pineda complied. Then, Pineda turned onto a different street by
cutting across a sidewalk. When Jackson looked behind him,
Rosser’s car was in pursuit and accelerating toward them. As
Pineda was preparing to turn left against a red light, Jackson
heard at least five gunshots. The rear window of the car
shattered. Jackson crouched down. A bullet struck Pineda in the
head and killed him, as he drove. The car ran over a curb and
stopped. A witness who was walking down the street at the time
of the shooting testified at trial. He stated he heard gunshots
and took cover. When he looked around thereafter he saw a
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grape-colored convertible Chevrolet Impala with the top down
and two people inside. The passenger was standing up in the car.
B. Trial court’s denial of prosecution’s request
for jury instruction on natural and
probable consequences doctrine
During a conference on jury instructions, the prosecution
requested the trial court instruct the jury on the natural and
probable consequences doctrine with CALJIC No. 3.02. The court
stated the instruction did not apply because the evidence did not
support a natural and probable consequences theory. The
prosecutor commented that Rosser might nonetheless argue the
case that way. Defense counsel objected to the instruction and
asked the court to remove it from the packet of instructions the
prosecution prepared. The court indicated it would not instruct
the jury with CALJIC No. 3.02.
C. Argument to the jury
In argument to the jury, the prosecutor did not mention the
natural and probable consequences doctrine (or felony murder).
He argued Rosser was guilty of the charged offenses as an aider
and abettor of murder and attempted murder.
In his opening argument, the prosecutor explained to the
jury that the prosecution had to establish malice aforethought to
prove Rosser committed a murder, and he described the evidence
that he contended showed Rosser acted with intent to kill. After
reviewing that evidence, he argued to the jury: “It’s clear from
those actions, ladies and gentlemen, that the defendant [Rosser]
had an intent to kill here. His passenger had an intent to kill,
[sic] because he’s an aider and abet[o]r. He shares that intent.”
The prosecutor also explained to the jury that the prosecution
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had to establish malice aforethought, i.e., intent to kill, to prove
Rosser committed attempted murder.
Later in his opening argument, the prosecutor stated the
following regarding the doctrine of aiding and abetting and its
application to this case:
“As you were asked on voir dire by the judge, it is clear by
now, the defendant [Rosser] is guilty in this case. He is an aider
and abettor. And the judge will instruct you on what that means.
But under the law, a person who aids and abets a crime is
equally guilty. He’s just as guilty as the shooter.
“If the defendant is an aider and abettor in this case,
basically what happens is his responsibility is the same as the
shooter. He steps into the shooter’s shoes for the purposes of
being responsible for the death of William Pineda.
“What needs to be proved in order to show that the
defendant is an aider and abettor is fairly straightforward.
“One, knowledge of the unlawful purpose of the
perpetrator.
“And two, with the intent or purpose of committing,
encouraging, or facilitating the commission of the crime[,] by act
or advice aids, promotes, encourages, or instigates the
commission of the crime. That’s what makes someone an aider
and abettor.
“Ladies and gentlemen, apply the facts to the law. Did
defendant have knowledge of the unlawful purpose of the
passenger? Obviously, he does, that’s why he’s chasing William
[Pineda] and Lemel [Jackson]. He knows what his passenger is
going to do. They’re just chasing them to get a better look at
their car. They’re chasing them because the defendant thinks
they’re rival gang members in his neighborhood, and they’re
7
going to take care of it. So he knows what his passenger is going
to do, and he certainly knows when the passenger pulled out his
gun and stands up on the passenger side, he knows what’s going
on.
“Does the defendant do anything to aid, promote, or
instigate the murder? Absolutely, I mean, first of all, he’s the one
who instigates it. He’s the one who starts all this. If it wasn’t for
the defendant, none of this would have happened.
“He’s the one who starts it. He continues to instigate, to
aid, to promote it by telling these people behind him that he
thinks Lemel [Jackson] is a rival gang member[;] by driving after
him throughout the whole course of the chase.
“He’s aiding and promoting and encouraging the murder.
He’s the driver. That makes him an aider and abettor.
“That’s the law on aiding and abetting. And that’s what it
is that makes the defendant guilty of murder in this case.”
Defense counsel, in his closing argument, challenged
Jackson’s credibility and his identification of Rosser as the driver.
Defense counsel did not review with the jury the elements of
murder and attempted murder. He made the following argument
(in full) regarding aiding and abetting: “If you feel that the
driver had no knowledge or there was insufficient evidence that
the driver had knowledge that the passenger was going to shoot,
then you would have to acquit on the aiding and abetting theory.”
D. The trial court’s reading of the jury
instructions
Just before reading the jury instructions, the trial court
told the jury, “These instructions, not only will I read them to
you, but you will have them for your review during your
deliberations. The first instruction the court read, CALJIC No.
8
1.00, also informed the jury, in pertinent part, “You will have
these instructions in written form in the jury room to refer to
during your deliberations.”
The trial court instructed the jury on the definition of
principals with CALJIC No. 3.00, stating: “The persons
concerned in the commission or attempted commission of a crime
who are regarded by law as principals in the crime thus
committed or attempted and equally guilty thereof include: [¶]
1. Those who directly and actively commit or attempt to commit
the act constituting the crime, or [¶] 2. Those who aid and abet
the commission or attempted commission of the crime.” Next, the
court instructed the jury on the definition of aiding and abetting
with CALJIC No. 3.01, stating, in pertinent 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 [¶] With the intent or purpose of
committing, encouraging, or facilitating the commission of the
crime, by act or advice aids, promotes, encourages, or instigates
the commission of the crime. . . .” The court did not read an
instruction on the natural and probable consequences doctrine (or
felony murder).
Immediately after instructing the jury on direct aiding and
abetting, the trial court read CALJIC No. 2.02, stating, in
pertinent part: “The mental state with which an act is done may
be shown by the circumstances surrounding the commission of
the act. [¶] But you may not find the defendant guilty of the
charged offenses, unless the proved circumstances are not on[ly]
(1) consistent with the theory that the defendant had the required
mental state but, (2) cannot be reconciled with any other rational
conclusion. [¶] . . . [¶] “In the crimes charged in the information,
9
namely count [1], murder, and count [2], attempted murder, there
must exist a certain mental state in the mind of the perpetrator.
Unless such mental state exists the crime to which it relates is
not committed. [¶] The mental state required is included in the
definition of the crime charged.” (Italics added.)
The trial court thereafter instructed the jury on the
elements of murder, including the requisite malice aforethought
(CALJIC No. 8.10), as well as the definition of malice
aforethought (CALJIC No. 8.11). Then, the trial court instructed
the jury on the only theory of first degree murder advanced by
the prosecution: willful, deliberate, and premeditated murder.
Using CALJIC No. 8.20, the court informed the jury, in pertinent
part: “All murder which is perpetrated by any kind of willful,
deliberate and premeditated killing with express malice
aforethought is murder of the first degree. [¶] . . . [¶] “If you find
that the killing was preceded and accompanied by a clear,
deliberate intent on the part of the defendant to kill, which was
the result of deliberation and premeditation, so that it must have
been formed upon pre-existing reflection and not under a sudden
heat of passion or other condition precluding the idea of
deliberation, it is murder of the first degree. . . .” (Italics added.)
The instruction concluded: “To constitute a deliberate and
premeditated killing, the slayer must weigh and consider the
question of killing and the reasons for and against such a choice,
and having in mind the consequences, he decides to and does
kill.” (Italics added.)
The trial court also instructed the jury on the elements of
attempted murder, including the requisite “express malice
aforethought, namely, a specific intent to kill unlawfully another
human being.” The court further instructed the jury on the
10
allegation that the attempted murder was willful, deliberate, and
premeditated with CALJIC No. 8.67. This instruction included
the same language regarding a clear, deliberate intent to kill that
we quoted above from CALJIC No. 8.20 (Deliberate and
Premeditated Murder), except that CALJIC No. 8.67 did not
include the phrase “on the part of the defendant” in between the
words “intent” and “to kill.” CALJIC No. 8.67, as read by the
court, also stated: “To constitute a willful, deliberate, and
premeditated attempt to commit murder, the would-be slayer
must weigh and consider the question of killing and the reasons
for and against such a choice, and having in mind the
consequences, decides to kill and makes a direct but ineffectual
act to kill another human being.” (Italics added.)
E. The written instructions given to the jury
The clerk’s transcript from Rosser’s direct appeal of his
convictions includes a packet of jury instructions, marked
“GIVEN.” The packet includes CALJIC No. 3.02, Principals—
Liability for Natural and Probable Consequences, which reads:
“One who aids and abets is not only guilty of the particular crime
that to [his] [her] knowledge [his] [her] confederates are
contemplating committing, but [he] [she] is also liable for the
natural and probable consequences of any criminal act that [he]
[she] knowingly and intentionally aided and abetted. You must
determine whether the defendant is guilty of the crime originally
contemplated, and, if so, whether the crime charged [in Count[s]
__________] was a natural and probable consequence of such
originally contemplated crime.” As noted above, the trial court
did not orally read this instruction to the jury.
11
F. Verdicts, sentence, and direct appeal
The jury found Rosser guilty of the murder of Pineda and
indicated on the verdict form that it found the murder to be of the
first degree. The jury also found Rosser guilty of the attempted
murder of Jackson and found true the allegation that the
attempted murder was willful, deliberate, and premeditated. As
to both counts, the jury found true the allegation that a principal
was armed with a firearm in the commission of the offenses (§
12022, subd. (a)(1)). The trial court sentenced Rosser to 25 years
to life in prison for the murder, plus one year for the firearm
enhancement, and imposed a concurrent term of life for the
attempted murder. Rosser appealed his convictions, and this
court affirmed the judgment. (People v. Rosser, supra, B066593.)
II. Rosser’s Section 1172.6 Petition
In 2018, the Legislature enacted Senate Bill No. 1437 “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.” (Sen. Bill No. 1437 (2017-2018 Reg.
Sess.); Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &
189, subd. (e).) Senate Bill No. 1437 amended sections 188
(defining malice) and 189 (felony murder) and added section
1170.95, now renumbered section 1172.6, which established a
procedure for vacating murder convictions and resentencing
defendants who could no longer be convicted of murder in light of
the amendments to sections 188 and 189. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
12
On August 5, 2021, Rosser, as a self-represented litigant,
filed a petition for resentencing under former section 1170.95,
now section 1172.6. He checked boxes on a preprinted form,
indicating he was convicted of murder under the natural and
probable consequences doctrine or the felony murder rule, and he
could not now be convicted of murder because of the amendments
to sections 188 and 189 referenced above. He also checked the
box requesting appointment of counsel in connection with his
petition. In a declaration attached to the petition, he stated, in
pertinent part: “Based on my reading of the new statutory
interpretation, I could not now be convicted of the murder of this
victim, and at most since the target offense was to assault in this
case, criminal liability is limited to a finding of some determinate
term within that range of criminal offenses.”
On or around October 5, 2021, the trial court appointed
counsel to represent Rosser. Also on October 5, 2021, the
Governor signed into law Senate Bill No. 775 which amended
then-section 1170.95 to, among other things, authorize relief for
persons convicted of attempted murder under the natural and
probable consequences doctrine. (Sen. Bill No. 775 (2020-2021
Reg. Sess.); Stats. 2021, ch. 551, § 2.) The amendment became
effective January 1, 2022.
On February 14, 2022, the district attorney filed a response
to Rosser’s petition for resentencing.3 Therein, the district
attorney argued Rosser was ineligible for relief under the
resentencing statute, asserting (1) Rosser’s jury was not
3 In a declaration attached to the district attorney’s request
for an extension to file the response, dated December 15, 2021,
the deputy district attorney stated that Rosser was “currently out
of custody and off parole” in this case.
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instructed on the felony murder rule or the natural and probable
consequences doctrine; (2) Rosser could not have been convicted
under either theory; and (3) the amendments to sections 188 and
189 do not apply to his case, and he could still be convicted of
murder today under the same theory under which he was
convicted in 1992, as a direct aider and abettor of the murder.
The district attorney acknowledged in the response that the
resentencing statute was amended after Rosser filed his petition
to authorize relief for persons convicted of attempted murder
under the natural and probable consequences doctrine, as we
noted above.
The district attorney attached to the response excerpts of
the reporter’s transcript of Rosser’s trial, including (1) the trial
court’s entire reading of the jury instructions (which, as
explained above, did not include an instruction on either the
felony murder rule or the natural and probable consequences
doctrine); and (2) the portion of the conference between the court
and the parties regarding jury instructions, during which the
court denied the prosecution’s request for an instruction on the
natural and probable consequences doctrine (CALJIC No. 3.02),
based on defense counsel’s objection to such an instruction. The
district attorney did not attach to the response the packet of
instructions given to Rosser’s jury, which apparently included
CALJIC No. 3.02, Principles—Liability for Natural and Probable
Consequences.
On February 25, 2022, in a supplement to the response, the
district attorney submitted to the trial court a copy of an
appellate opinion published the day after the district attorney
filed the response to Rosser’s petition for resentencing, People v.
Cortes (2022) 75 Cal.App.5th 198. In that case, the Court of
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Appeal affirmed an order denying a petition for resentencing
where the defendant’s jury was instructed on direct aiding and
abetting of murder and attempted murder, and not liability for
murder or attempted murder under the natural and probable
consequences doctrine. (Id. at pp. 205-206.) The appellate court
rejected the defendant’s argument that the jury might have
convicted him of murder or attempted murder under the natural
and probable consequences doctrine based on the following
argument to the jury by the prosecutor: “ ‘One who aids and
abets is not only guilty of that particular crime in which that
person aided and abetted but is also guilty of any crimes
committed by a principal which are the natural and probable
consequences of the crimes originally aided and abetted.’ ” (Id. at
pp. 203, 205.) The Court of Appeal noted, “the prosecution did
not argue at any point during trial, including closing argument,
that a crime other than murder or attempted murder was
committed, and no other crime was charged or at issue
throughout the trial.” (Id. at p. 205.)
Rosser’s appointed counsel did not file a reply brief in
support of the petition for resentencing. On April 28, 2022, the
trial court held a hearing to determine if Rosser made a prima
facie case for relief in his petition. Rosser was not present. The
prosecutor argued, in full: “Your Honor, this defendant does not
qualify for a reduction as reflected in my paperwork.” The court
asked defense counsel if she wanted to respond, and she
submitted without argument. The court denied the petition,
stating in its April 28, 2022 minute order, “the People present
facts which indicate the petition was without merit.”
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DISCUSSION
Rosser contends he has made a prima facie case for relief
under section 1172.6 because he has shown his jury received a
written instruction on the natural and probable consequences
doctrine. He notes the parties did not bring this circumstance to
the trial court’s attention in connection with his petition for
resentencing. Rather, the court only had before it the reporter’s
transcript of the instructions read to the jury, which did not
include an instruction on the natural and probable consequences
doctrine (or felony murder). He asserts the denial of his petition
at the prima facie stage was error, based on this
misunderstanding of his record of conviction, and the matter
must be remanded for an evidentiary hearing under section
1172.6, subdivision (d).
Rosser acknowledges the issuance of an order to show
cause under section 1172.6, subdivision (c) is not required in
every murder/attempted murder case in which the jury received
an instruction on the natural and probable consequences
doctrine. He points out that when “there is something else in the
record that shows as a matter of law the jury did not rely on that
alternative theory of liability [the natural and probable
consequences doctrine],” the trial court need not issue an order to
show cause and hold an evidentiary hearing. As explained below,
Rosser’s record of conviction (including the jury instruction on
premeditation and deliberation and the verdicts), shows he is
ineligible for relief under section 1172.6 as a matter of law,
notwithstanding the apparent inadvertent inclusion of a natural
and probable consequences doctrine instruction in the packet
given to the jury.
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I. Section 1172.6 and Other Applicable Law
Under section 1172.6, subdivision (a), “A person convicted
of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder. [¶] (3) The petitioner could not presently
be convicted of murder or attempted murder because of changes
to Section 188 or 189 made effective January 1, 2019.”
Senate Bill No. 1437 added the following provision to
section 188: “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).) The effect of this amendment was to
“eliminate[ ] natural and probable consequences liability for first
17
and second degree murder.” (People v. Gentile (2020) 10 Cal.5th
830, 849 (Gentile).) As set forth above, Senate Bill No. 775
subsequently amended former section 1170.95, now section
1172.6, to authorize relief for persons convicted of attempted
murder under the natural and probable consequences doctrine.
When a defendant files a facially sufficient petition under
section 1172.6, the trial court must appoint counsel to represent
the petitioner, allow briefing from both sides, and hold a hearing
to determine whether the petitioner has made a prima facie
showing for relief. (§ 1172.6, subds. (b)-(c).) As our Supreme
Court explained: “While the trial court may look at the record of
conviction after the appointment of counsel to determine whether
a petitioner has made a prima facie case for section [1172.6]
relief, the prima facie inquiry under subdivision (c) is limited.
Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.)
If the trial court issues an order to show cause, the final
step in the process is a hearing to determine if the petitioner is
entitled to relief, where the trial court must vacate the
petitioner’s murder or attempted murder conviction and
18
resentence him or her on any remaining counts unless the
prosecution can “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.” (§ 1172.6, subd. (d)(3).)
“Whether the court conducted a proper inquiry under
section [1172.6], subdivision (c)” at the prima facie stage—the
issue before us—“is a question of statutory interpretation, which
we review de novo.” (People v. Harrison (2021) 73 Cal.App.5th
429, 437.)
II. Rosser Is Ineligible for Relief Under Section 1172.6
as a Matter of Law
The prosecutor argued to the jury that Rosser acted with
intent to kill in aiding and abetting a murder and an attempted
murder; and the trial court read to the jury an instruction on
direct aiding and abetting—a theory of murder/attempted murder
that is still valid today. The court did not read to the jury an
instruction on the natural and probable consequences doctrine,
and no one referenced that doctrine in front of the jury.
Notwithstanding these circumstances, Rosser argues the jury
could have found him guilty of murder and attempted murder
under the natural and probable consequences doctrine based on
the inclusion of a CALJIC No. 3.02 form instruction in the packet
given to the jury. He posits the jury could have found he aided
and abetted a mere shooting, and not a murder or attempted
murder, although no one advanced such a theory to the jury.
Rosser acknowledges that an instruction on the natural
and probable consequences doctrine does not necessarily make a
prima facie case for relief under section 1172.6. As Rosser stated
in his briefing in this appeal, when “the jury is given a natural
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and probable consequences instruction, the superior court must
issue an order to show cause unless there is something else in the
record that shows as a matter of law the jury did not rely on that
alternative theory of liability.” (Italics added.) Rosser’s record of
conviction includes “something else” that establishes he is
ineligible for relief under section 1172.6 as a matter of law.
The jury found Rosser guilty of first degree murder. The
only theory of first degree murder presented to the jury was
willful, deliberate, and premeditated murder. As set forth above,
CALJIC No. 8.20 (Deliberate and Premeditation Murder)—which
the trial court read to the jury and included in the packet of jury
instructions—informed the jury that a verdict of first degree
murder required the jury to “find that the killing was preceded
and accompanied by a clear, deliberate intent on the part of the
defendant to kill, which was the result of deliberation and
premeditation . . . .” (Italics added.) While this instruction also
referenced “the slayer’s” premeditation and deliberation,4 it
nonetheless required the jury to find “the defendant,” Rosser,
intended to kill Pineda in order to return a verdict of first degree
murder. We must presume the jury followed the trial court’s
instruction on premeditation and deliberation in finding Rosser
guilty of first degree murder. Accordingly, Rosser’s record of
conviction establishes the jury found he intended to kill Pineda.
4 As set forth above, CALJIC No. 8.20, as given to Rosser’s
jury, also included the following language: “To constitute a
deliberate and premeditated killing, the slayer must weigh and
consider the question of killing and the reasons for and against
such a choice, and having in mind the consequences, he decides to
and does kill.” (Italics added.)
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Rosser ignores this part of his record of conviction, although he
placed it before us.
The Attorney General argues in the respondent’s brief that
People v. Estrada (2022) 77 Cal.App.5th 941 (Estrada) “is
instructive,” and we agree. There, like here, the defendant was
convicted of first degree murder. His jury was instructed on
direct aiding and abetting liability. In one of the aiding and
abetting instructions, the trial court left in bracketed language,
stating: “ ‘Under some specific circumstances, if the evidence
establishes aiding and abetting of one crime, a person may also
be found guilty of other crimes that occurred during the
commission of the first crime.’ ” (Id. at p. 946.) The Bench Notes
to the instruction (which the jury did not see) explain that the
bracketed language should be given to the jury if the prosecution
is relying on the natural and probable consequences doctrine.
Unlike here, the jury in Estrada was not given a separate
instruction on the natural and probable consequences doctrine.
(Id. at p. 947.)
The trial court in Estrada denied the defendant’s petition
for resentencing under former section 1170.95 without issuing an
order to show cause, finding the defendant was ineligible for
relief as a matter of law because the record showed he was
convicted as a direct aider and abettor of the murder. (Estrada,
supra, 77 Cal.App.5th at pp. 943-944.) The Court of Appeal
affirmed for multiple reasons, including that the defendant’s jury
was not given a separate instruction on the natural and probable
consequences doctrine. The appellate court’s primary reason for
affirming the order denying the petition, however, is the same
reasoning we set forth above: “the record establishes that the jury
instructions ‘ensured that the jury would only find Estrada guilty
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of first degree murder, even as an aider and abettor, if it
concluded he acted willfully and with intent to kill . . . .’ ” (Id. at
p. 945.) The Court of Appeal explained that the instructions on
first degree murder “ ‘referred specifically to the defendant, not a
principal, and informed the jury what the People had to prove as
to the defendant. There was only one defendant in this case,
Estrada. We assume the jury followed the instructions rather
than disregarding them.’ ” (Id. at p. 948.)
In his briefing in this case, Rosser argues Estrada is
inapplicable because the jury in that case was not given a
separate instruction on the natural and probable consequences
doctrine. But Rosser fails to address the Estrada court’s primary
reason for concluding the defendant was ineligible for relief as a
matter of law. Here, as in Estrada, the jury instructions on first
degree murder required the jury to find Rosser, himself, had an
intent to kill when he aided and abetted the murder of Pineda.
As we set forth above, CALJIC No. 8.67—the instruction
given in this case on the allegation that the attempted murder
was willful, deliberate, and premeditated—did not expressly
reference “the defendant,” as did the instruction on willful,
deliberate and premeditated murder (CALJIC No. 8.20). CALJIC
No. 8.67, as given to Rosser’s jury, stated in pertinent part: “If
you find that the killing was preceded and accompanied by a
clear, deliberate intent to kill, which was the result of
deliberation and premeditation, so that it must have been formed
upon pre-existing reflection and not under a sudden heat of
passion or other condition precluding the idea of deliberation, it is
attempt to commit willful, deliberate, and premeditated murder.”
At trial (or in connection with the petition for resentencing), the
parties did not analyze Rosser’s mental state or actions
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separately or differently for the murder of Pineda and the
attempted murder of Jackson. Considering the jury instructions
as a whole, along with the parties’ arguments to the jury, it is
clear the jury was instructed it could not find Rosser guilty of a
willful, deliberate, and premeditated murder unless it found he
acted with intent to kill. (See People v. Williams (2022) 86
Cal.App.5th 1244, 1255-1256 [in reviewing an order denying a
section 1172.6 petition at the prima facie stage, “we, the
appellate court, ‘must consider the instructions together as a
whole, to determine whether it is reasonably likely a jury would
interpret an instruction in a particular way, because we presume
jurors understand and correlate all of the instructions’ [citation]
and the jurors are ‘presumed to have followed the court’s
instructions’ ”].)
For the foregoing reasons, Rosser’s record of conviction
establishes the jury did not find him guilty of the charged
offenses under the natural and probable consequences doctrine.
Rather, the jury found he acted with intent to kill when he aided
and abetted the murder and the attempted murder. Rosser could
be prosecuted for murder and attempted murder under the same
direct aiding and abetting theory today. (See Gentile, supra, 10
Cal.5th at p. 848 [“Senate Bill 1437 does not eliminate direct
aiding and abetting liability for murder because a direct aider
and abettor to murder must possess malice aforethought”].)
Thus, the trial court did not err in summarily denying his
petition for failure to make a prima facie case for relief.
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DISPOSITION
The April 28, 2022 order denying the section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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