People v. Rosas CA4/3 ( 2024 )

Filed 10/24/24 P. v. Rosas CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062933
v. (Super. Ct. No. C-93787)
JAIME SALAZAR ROSAS, OPINION
Defendant and Appellant.
Appeal from postjudgment orders of the Superior Court of Orange
County, Steven D. Bromberg, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Jaime Salazar Rosas filed a petition for resentencing
under former Penal Code section 1170.95 (now codified as § 1172.6)1 on his
murder and attempted murder convictions. The trial court denied the petition
as to the attempted murder conviction at the prima facie stage and denied
the petition as to the murder conviction following an evidentiary hearing.
We appointed counsel to represent Rosas on appeal. Pursuant to
People v. Delgadillo (2022) 14 Cal.5th 216, appointed counsel filed a brief
setting forth the facts of the case and, without arguing against his client,
stated he was not able to identify any arguable issues on appeal and asked us
to conduct an independent review of the entire record. Rosas was given notice
and an opportunity to file a supplemental brief but did not do so within the
time provided.
Under People v. Delgadillo, supra, 14 Cal.5th at pages 231 to 232,
the Court of Appeal may conduct an independent review of the record in the
exercise of its discretion, and we elect to do so. After fully examining counsel’s
brief and the entire record, we find no reasonably arguable issue on appeal
and affirm.
FACTS
On October 15, 1991, C.J. (the victim of the attempted murder)
was walking home with two friends when they met Rosas and another man.
The other man began to beat C.J. while Rosas stood by, pointing a revolver at
C.J. Rosas told C.J. that if C.J. tried to avoid being hit, Rosas would shoot
him. Rosas then asked C.J. for money. C.J. and one of his friends gave
1
All further statutory references are to the Penal Code. Effective
June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6
without substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to
the statute as section 1172.6 throughout the opinion.
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Rosas’s companion their money; C.J.’s other friend did not have any money
and so gave nothing.
After the money was handed over, Rosas commented that C.J.
had hit one of Rosas’s friends some months earlier. Rosas then asked C.J. if
he wanted to see if Rosas’s gun would work and threatened to kill C.J. Rosas
was pointing the gun at C.J.’s head at the time. One of C.J.’s friends tried to
defend C.J., and Rosas shot at the friend, but missed. Rosas then pointed the
gun at C.J.’s chest and fired, but the gun did not go off. Rosas tried another
shot and the gun failed again. Rosas shot at C.J. a third time. This time, the
gun worked and the bullet passed by the side of C.J.’s head. Rosas shot a
fourth time and the bullet hit C.J. on his right leg near the hip joint. C.J. fell
to the ground and Rosas shot him again, this time in the left knee. Rosas and
his companion then ran from the scene.
On November 18, 1991, Miguel Gallardo and his girlfriend, C.F.,
were walking through their apartment complex when a man ran up and
grabbed Gallardo. C.F. told the man to leave them alone and continued
walking while Gallardo and the man wrestled. When C.F. looked back, she
saw Rosas, wearing a dark beanie and holding a rifle, watching Gallardo and
the man wrestling. C.F. then went to a nearby apartment for help, but she
was not able to get in. C.F. was able to see Gallardo, who was still wrestling
with the man, and Rosas standing nearby pointing the rifle towards Gallardo
and the man. C.F. ran toward another apartment and did not see what
happened next.
L.T., a resident of the apartment complex witnessed the events
from the window of his apartment. He heard a shot and looked out his
window to see three men fighting. He saw one of the men had a rifle. L.T.
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described the man with the rifle as wearing a dark beanie. Gallardo died
from a gunshot wound.
Rosas was charged with attempted murder in connection with the
shooting of C.J. and first degree murder in connection with the killing of
Gallardo. The information further alleged Rosas personally used a firearm
within the meaning of section 1203.06, subdivision (a)(1) and section 12022.5,
subdivision (a) in connection with the charges of murder and attempted
murder and that he inflicted great bodily injury upon C.J. in connection with
the charge of attempted murder.
Rosas was convicted by a jury of one count of first degree murder
(§187, subd. (a)) and one count of attempted murder (§§ 187, subd. (a) & 664).
The jury also found true the allegations that Rosas personally used a firearm
in connection with the murder and attempted murder and that Rosas
personally inflicted great bodily injury on C.J. in connection with the
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attempted murder.
Rosas was sentenced to 25 years to life on the first degree murder
conviction plus five consecutive years for the firearm enhancement. On the
attempted murder conviction, Rosas received a life sentence with the
possibility of parole plus five consecutive years for the firearm enhancement,
all of which were consecutive to the first degree murder sentence.
2
Rosas was also convicted of one count of torture (§ 206 [count
3]), two counts of robbery (§ 211 [counts 4 & 5]), one count of attempted
robbery (§§ 664, 211 [count 6]), and one count of shooting at an unoccupied
vehicle (§ 247, subd. (b) [count 7]). The jury found true allegations of personal
firearm use as to counts 3 through 6 and personal infliction of great bodily
injury as to count 4. These convictions and findings are not relevant to this
appeal.
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In March 2022, Rosas filed a petition for resentencing under
section 1172.6 as to his convictions of first degree murder and attempted
murder. At the prima facie hearing, the trial court denied the petition as to
the attempted murder conviction but found Rosas had made a prima facie
case as to the first degree murder conviction. After hearing argument and
admitting the trial transcript as evidence, the court denied the petition as to
the first degree murder conviction.
Rosas timely appealed the trial court’s orders denying his
petition for resentencing as to both convictions.
DISCUSSION
Pursuant to Anders v. California (1967) 386 U.S. 738, appointed
counsel identified two issues to assist us in conducting our independent
review: (1) whether the trial court committed prejudicial error in denying
Rosas’s petition as to the attempted murder conviction at the prima facie
stage; and (2) whether substantial evidence was presented at the evidentiary
hearing to support Rosas’s conviction of first degree murder on a direct
perpetrator theory. Neither issue presents a reasonably arguable issue on
appeal, and no other reasonably arguable issue is presented by the record.
I.
SECTION 1172.6
Rosas seeks to be resentenced under section 1172.6, which allows
“[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 consequence doctrine, or
manslaughter [to] file a petition with the court that sentenced the petitioner
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to have the petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced . . . .” (§ 1172.6, subd. (a).)
Relief under section 1172.6 is not available if the “defendant was
either the actual killer, acted with the intent to kill, or ‘was a major
participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of [Penal Code] Section 190.2.’”
(People v. Strong (2022) 13 Cal.5th 698, 710.)
II.
DENIAL OF THE PETITION ON THE ATTEMPTED MURDER CONVICTION
In his petition, Rosas asserted he was tried under a theory of
“attempted murder under the natural and probable consequences doctrine.”
As petitioner, Rosas had the burden of making a prima facie case for relief.
(People v. Lewis (2021) 11 Cal.5th 952, 972.) “At the prima facie stage, a court
must accept as true a petitioner’s allegation that he or she could not
currently be convicted of a homicide offense because of changes to Section 188
or 189 made effective January 1, 2019, unless the allegation is refuted by the
record.” (People v. Curiel (2023) 15 Cal.5th 433, 463, italics added.) We review
de novo whether a petitioner has made a prima facie case for relief. (People v.
Ervin (2021) 72 Cal.App.5th 90, 101.)
Here, the record shows Rosas is ineligible for relief as to the
attempted murder conviction for the simple reason that the jury was not
instructed on the natural and probable consequences doctrine in connection
with that charge. (People v. Coley (2022) 77 Cal.App.5th 539, 548; see People
v. Offley (2020) 48 Cal.App.5th 588, 599 [“if the jury did not receive an
instruction on the natural and probable consequences doctrine, the jury could
not have convicted the defendant on that basis, and the petition should be
summarily denied”].)
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Moreover, the jury found Rosas (1) personally used a firearm in
connection with the attempted murder, and (2) “with the specific intent to
inflict such injury, did personally inflict great bodily injury” on C.J., “during
the commission of the [attempted murder].” In other words, the jury found
Rosas was the direct perpetrator of the attempted murder, making him
ineligible for relief under section 1172.6.
Rosas’s allegation that he could not be convicted of attempted
murder under current law is conclusively refuted by the record of the jury’s
findings, and the trial court did not err in denying Rosas’s petition as to that
charge at the prima facie stage.
III.
DENIAL OF THE PETITION ON THE MURDER CONVICTION
To determine if the trial court properly denied Rosas’s section
1172.6 petition as to the murder conviction after an evidentiary hearing,
“‘“‘we review the factual findings for substantial evidence and the application
of those facts to the statute de novo.’”’” (People v. Arnold (2023) 93
Cal.App.5th 376, 383.) Here, based on the evidence and the jury’s findings,
Rosas was the murderer. At trial, Rosas introduced evidence he was
elsewhere at the time of Gallardo’s murder and someone else had confessed to
the murder. The prosecution, however, presented two eyewitnesses who
identified Rosas as the individual with the rifle, one of whom testified Rosas
shot Gallardo. Further, three hours after the murder, Rosas was seen hiding
the rifle and admitted it was his.
The jury rejected Rosas’s alibi defense and found Rosas guilty of
first degree murder. It also found that Rosas personally used a firearm
during the commission of the murder. Because the record of conviction
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establishes Rosas was the direct perpetrator who acted with the intent to kill,
the trial court did not err in denying his petition as to the murder conviction.
After an independent review of the entire appellate record and
the brief of counsel, we find no arguable issue. Rosas has been represented by
competent counsel. We therefore affirm the trial court’s orders denying
Rosas’s petition for resentencing.
DISPOSITION
The postjudgment orders are affirmed.
GOODING, J.
WE CONCUR:
SANCHEZ, ACTING P. J.
MOTOIKE, J.
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