People v. Rocha CA2/4 ( 2023 )

Filed 12/5/23 P. v. Rocha CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE, B326920
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA409258)
v.
ARMANDO ROCHA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, H. Clay Jacke II, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Armando Rocha appeals from an order denying his petition
for resentencing under Penal Code section 1172.6.1 His appellate
counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo), and Rocha filed a supplemental brief. We
review the contentions Rocha raises in his supplemental brief
and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Conviction and sentence
As discussed in the opinion in Rocha’s direct appeal, in
2014 Rocha and codefendant Javier Trujillo were charged with
murder (§ 187, subd. (a)), and with gang and firearm use
allegations. (§§ 186.22, subd. (b)(1)(C)), 12022.53, subds. (b)-(e).)
One prior serious felony, also a strike conviction, was alleged as
to Rocha. (§ 667, subds. (a)(1) & (b)-(j), 1170.12.) (People v.
Rocha (Jan. 29, 2018, B270706) [nonpub. opn.].)
“The jury convicted Rocha and Trujillo of first-degree
murder and found the gang and firearm use allegations to be
true. The court found the prior serious felony allegation as to
Rocha to be true. Rocha was sentenced to 80 years to life in
prison, consisting of 25 years to life for the murder conviction,
doubled, plus 25 years to life for the gun use enhancement, and a
five-year enhancement under section 667, subdivision (a)(1). No
term was imposed for the gang enhancement. He was given
custody credits and assessed various fines and fees.” (People v.
Rocha, supra.) A different panel of this court remanded the
matter to allow the trial court to exercise its discretion under
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
section 12022.53, subdivision (h); in all other respects, the
judgment was affirmed. (Ibid.)
In a subsequent appeal, another panel of this court held
that Rocha was entitled to a hearing before the court exercised its
discretion as to the firearm enhancement and the prior serious
felony enhancement. (People v. Rocha (2019) 32 Cal.App.5th 352,
355.)
B. Petition for resentencing
On February 1, 2022, Rocha filed a petition for
resentencing under former section 1170.95, now section 1172.6.2
The trial court appointed counsel for Rocha and ordered the
People to file a response to Rocha’s petition. The People opposed
the petition on the grounds that Rocha was ineligible for relief as
a matter of law because his jury was not instructed on theories of
natural and probable consequences or felony murder. The People
attached the jury instructions from Rocha’s trial. Rocha’s
appointed counsel filed a short response “submitting to a decision
. . . based upon the previously filed motions and briefs in this
matter.”
At the hearing, the prosecutor stated that Rocha “is not
entitled to relief under 1172.6. And I believe the defense has
submitted on that.” The court asked, “You agree?” Defense
counsel responded, “I do. I submit.” The trial court denied
Rocha’s petition, finding that Rocha was ineligible for
resentencing. Rocha timely appealed.
2 Effective June 30, 2022, former section 1170.95 was
renumbered to section 1172.6, with no change in text. (Stats.
2022, ch. 58, § 10.)
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DISCUSSION
Rocha’s appellate attorney filed a brief raising no issues
and requesting that this court proceed pursuant to Delgadillo,
supra, 14 Cal.5th 216. Rocha was advised of his right to file a
supplemental brief (see Delgadillo, supra, 14 Cal.5th at pp. 231-
232), and did so. We evaluate the arguments set forth in that
supplemental brief. (See id. at p. 232 [“If the defendant
subsequently files a supplemental brief or letter, the Court of
Appeal is required to evaluate the specific arguments presented
in that brief and to issue a written opinion”].)
Rocha acknowledges his attorney’s explanation that he was
not convicted pursuant to the theories of natural and probable
consequences or felony murder. However, Rocha asserts that
“the court never gave the defendant the opportunity to be at least
tried by the theories under [former section] 1170.95. . . . Do we
not have the right to get the opportunity to be tried by these
other theories that may give a petitioner relief[?]”
Section 1172.6 does not afford Rocha that relief; nothing in
section 1172.6 entitles him to a new trial under different
theories. Rather, the plain language of section 1172.6 allows for
resentencing only for those previously “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,” who “could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189.” (§ 1172.6, subd. (a)(1), (3).) If a
petitioner does not meet these criteria, he or she is ineligible for
relief under section 1172.6.
Rocha also states in his supplemental brief that he was not
involved in the crimes, and he questions the witnesses’
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identification of him. However, “[t]he mere filing of a section
[1172.6] petition does not afford the petitioner a new opportunity
to raise claims of trial error or attack the sufficiency of the
evidence supporting the jury’s findings.” (People v. Farfan (2021)
71 Cal.App.5th 942, 947.) Moreover, Rocha’s questioning of the
evidence against him does not demonstrate that the trial court
erred in denying his petition for resentencing. (People v.
Gonzalez (2021) 12 Cal.5th 367, 410 [it is the appellant’s burden
to affirmatively demonstrate error].)
In addition to rejecting the arguments Rocha raised in his
supplemental brief, we have exercised our discretion to
independently review the record, and we conclude no arguable
issues exist. (See Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The order denying relief is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P.J.
ZUKIN, J.
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