People v. Rose CA2/1

Filed 9/1/22 P. v. Rose 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B316112
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A632072)
v.
LIONELL ROSE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed.
Richard D. Miggins, 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, Roberta L. Davis and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________
After discussing a plan to kill Teddy Johnson, appellant
Lionell Rose drove himself and Vantrae Gregory, who was armed
with a handgun, to a location where they expected to find
Johnson. Gregory shot the man they saw at the location. They
later discovered the man that Gregory had shot was not Johnson,
but Ben Allen Hill. Upon learning this, Rose suggested, “Let’s go
back and get him.”
In 1986, a Los Angeles County jury convicted Rose of first
degree murder with a true finding that a principal was armed
with a firearm. (Pen. Code,1 §§ 187, 12022, subd. (a).) He was
sentenced to 26 years to life in state prison. The conviction was
affirmed by this court on February 26, 1987. (People v. Rose
(Feb. 26, 1987, B020560) [nonpub. opn.].)
On December 30, 2020, Rose filed a petition for
resentencing pursuant to section 1172.6,2 urging he was entitled
to relief because he was not the actual killer and the jury was
instructed on a theory of natural and probable consequences. On
October 29, 2021, following an evidentiary hearing, the trial court
denied Rose’s petition on the grounds that Rose could still be
convicted of murder under a currently valid legal theory because
he aided and abetted the killing with the express intent to kill
and was a major participant who acted with reckless indifference
1 Unless indicated all statutory references are to the Penal
Code.
2
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
The parties refer to section 1170.95 in their papers, but in this
opinion, we refer to it under its current designation for the sake
of consistency.
2
to human life as set forth in People v. Banks (2015) 61 Cal.4th
788 and People v. Clark (2016) 63 Cal.4th 522.
On appeal, Rose argues the trial court failed to act as an
independent factfinder and apply the correct beyond a reasonable
doubt standard.3 We conclude Rose has not demonstrated the
court applied the wrong standard, and, thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
The record on appeal does not include the reporter’s
transcript or the clerk’s transcript from Rose’s original trial,
although it appears Rose provided these transcripts to the
resentencing court, which referred to them during the evidentiary
hearing. On appeal, Rose’s counsel states he “has no briefing or
other documents related to [Rose’s direct] appeal beyond what is
provided in the current record on appeal.” Thus, Rose relies upon
the factual summary provided in our recent unpublished opinion
relating to Gregory’s resentencing appeal. (People v. Gregory
(Jan. 4, 2022, B310573) [nonpub. opn.].) In the trial court, Rose
3 In his opening brief, Rose also argues that the trial court
engaged in improper factfinding during the prima facie stage and
failed to hold an evidentiary hearing. However, the record
demonstrates that on July 23, 2021, the People conceded Rose
made a prima facie showing, and an order to show cause hearing
was scheduled. In his reply brief, Rose also acknowledges,
“[h]ere, the trial court determined the prima facie showing was
made and issued an [order to show cause], then conducted a
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts. ([Fmr.]
§ 1170.95, subds. (c), (d) . . . .)” Thus, we conclude Rose’s
argument lacks merit.
3
also derived facts from this court’s prior opinion on direct appeal
for his statement of facts. (People v. Rose, supra, B020560.) We
recognize that we may not rely on prior appellate opinions for
non-procedural facts. (§ 1172.6, subd. (d)(3).) Thus, we recite
facts from these two prior opinions for the purpose of context,
only, and where necessary for our opinion, rely upon the facts
stated in Rose’s briefs submitted to the trial court in support of
his resentencing petition as well as the facts stated by the trial
court and parties at the section 1172.6 evidentiary hearing.
On April 2, 1985, Gregory attended a party where he
engaged in a fistfight with Johnson. Gregory suggested that he
and Johnson step outside and brandished a handgun. Gregory
did not fire it, but Johnson left promising to return. Johnson
returned approximately two hours later, and “shot up” the house
where the party was taking place. Gregory stated he was “going
to get” Johnson. (People v. Gregory, supra, B310573.)
At approximately 6:00 p.m. on April 11, 1985, Pamela
Hillman, who attended the party with Rose, heard Gregory and
Rose planning Johnson’s murder. She observed Rose and
Gregory drive off in Rose’s car after Gregory armed himself with
a .38 caliber handgun and announced they “were going to take
care of [Johnson].” Gregory and Rose then returned at
approximately 8:00 p.m., and told Hillman, “It was done. We
took care of [Johnson].” (People v. Rose, supra, B020560; see
People v. Gregory, supra, B310573.)
A few days later, Gregory disclosed, in Hillman’s and Rose’s
presence, that he had killed the wrong person, Hill. In response,
Rose suggested, “Let’s go back and get him.” (People v. Rose,
supra, B020560; see People v. Gregory, supra, B310573.)
4
In his 1172.6 petition, Rose recites the following facts: In
April 1985, Gregory and Johnson got in a fist fight. On April 11,
1985, Hill was found dead from two gunshot wounds. That same
night, Gregory and Rose left their residence and traveled to the
location where Hill was discovered dead. When they returned
home, Rose told Hillman, “It was done.” However, at trial, Rose
presented a defense that he was in Bakersfield at the time of the
crime. Rose also claimed that there was no evidence at trial that
Rose “entered the residence containing Mr. Hill . . . the only
evidence produced at trial indicated that [Rose] merely drove the
vehicle to the location.” Rose had no intent to kill Hill. “When it
was discovered the wrong person was killed [Rose] allegedly
indicated, ‘let’s go back and get him.’ ” In his supplemental brief
in support of the petition, Rose notes that at the time of trial, the
prosecutor “argued . . . that [Rose] was a lookout.”
At the evidentiary hearing, the People pointed to the trial
testimony of Jeffrey Sanders, a county jail inmate. According to
Sanders, Gregory told him that both Gregory and Rose peeked
through a door window at the location where they expected to
find Johnson and went into the house.
B. Procedural Summary
1. Relevant Chronology Prior to the Evidentiary Hearing
Rose was convicted of premeditated and deliberate murder
during which a principal was armed with a firearm. (§§ 187,
12022, subd. (a).) He was sentenced to a total of 26 years to life
in state prison. The conviction was affirmed by this court on
February 26, 1987. (People v. Rose, supra, B020560.)
On December 30, 2020, Rose filed a section 1172.6 petition
for resentencing in which he alleged he was entitled to relief
because he was not the actual killer and the jury was instructed
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on a theory of natural and probable consequences. He declared
he was charged with and convicted of first degree murder under
the natural and probable consequences doctrine or under a felony
murder theory and, pursuant to changes made to sections 188
and 189, he could not now be convicted of murder.
The People filed a response to the petition, arguing Rose
was not prosecuted under a theory of felony murder or murder
under the natural and probable consequences doctrine. The
People attached this court’s prior appellate decision and the jury
instructions from the trial to their response.
Rose’s appointed counsel then filed a response to the
People’s brief. Rose argued a prima facie case had been
established because the jury had been instructed on the natural
and probable consequence theory and cited to CALJIC No. 3.00,
which defined “principals,” in the trial record. That instruction
provided, inter alia, that “One who aids and abets is not only
guilty of the particular crime that to his knowledge his
confederates are contemplating committing, but he is also liable
for the natural and reasonable or probable consequences of any
act that he knowingly and intentionally aided or encouraged.”
Rose also argued he was not the actual killer and had no intent to
kill. Further, he asserted that the People would have to prove
beyond a reasonable doubt that Rose could be convicted of
murder under the current law at a final evidentiary hearing.
To his brief, Rose attached the verdict, minute order from
his sentencing, the judgment, the jury instructions, and our
opinion from his direct appeal, and indicated the reporter’s
transcript and clerk’s transcript from the trial would be filed
under separate cover. The jury instructions included, inter alia,
instructions for murder, malice aforethought, deliberate and
6
premeditated murder, and the attempt to kill one person but
killing another.
On July 23, 2021, the People conceded Rose had
demonstrated a prima facie case, and the trial court issued an
order to show cause why Rose should not be granted relief under
section 1172.6.
The People filed a supplemental response arguing Rose was
ineligible for resentencing because he aided and abetted with the
intent to kill Johnson, and that intent transferred to Hill.
Rose filed a supplemental response. Citing at length to an
appellate opinion evaluating the applicable standard of proof at
the evidentiary hearing, Rose asserted the prosecution must
prove he was guilty of murder beyond a reasonable doubt under
current law and that the court must act as an independent
factfinder in making that determination. Rose also argued his
intent to kill Johnson, if any, could not transfer because it was
not “concurrent” with the mistaken shooting of Hill and that he
was not “inside the location of the killing.” Thus, he urged his
conviction must be vacated.
2. The Evidentiary Hearing
On October 29, 2021, the court held an evidentiary hearing
pursuant to section 1172.6, subdivision (d)(3). During the
hearing the court stated it had read the briefs filed by the parties,
the trial transcripts, and the opinion of the Court of Appeal.
The prosecution argued Rose was liable as an aider and
abettor under the theory of transferred intent, even if the wrong
person was killed.
Rose argued, “The first point that I would like to emphasize
is this court now is to make a decision based upon whether or not
[Rose] could be convicted under the current law as it exists.”
7
Further, Rose argued he did not go into the residence and that
although “[Rose] may have had intent to kill someone, . . . he’s
not responsible for every random mistaken killing [by] Mr.
Gregory.” “Rose did not have the intent to kill a mistaken
victim.”
The trial court asked Rose’s counsel, “Why was [Rose] in
the car to begin with?” Rose’s counsel responded, “He was in the
car to begin with to drive over to find Mr. Johnson.” The court
asked, “Why?” Rose’s counsel responded, “To assist Mr. Gregory
in the killing of Mr. Johnson.” Rose’s counsel further argued,
“What I am attempting to convince this court of, is the fact that
the law of transferred intent now requires a concurrent intent.
Meaning to kill those people at that time.” “In this case, Mr.
Rose had no idea that . . . Mr. Gregory[ ] would walk into a home
of an innocent victim, not identify the victim in any shape, form
whatsoever as being . . . Johnson . . . . How would Mr. Rose ever
imagine that he would go in and mistakenly shoot an unintended
person.”
Following the parties’ extensive arguments, the trial court
stated, “my responsibility is to provide an independent review,
make a decision based upon what I read, what’s presented, the
transcript, et cetera.” The court recited a number of facts
relevant to its decision, including that Hillman heard Rose and
Gregory plan Johnson’s murder; that Rose drove off with Gregory
after Gregory armed himself and announced they were going to
kill Johnson; that they drove to a residence that Johnson
frequented; and that after Rose discovered Gregory had shot the
wrong man, Rose stated, “Let’s go back and get him.” Then, in
September 1985, “an inmate in the crip module at the county
jail[ ] engaged in a conversation with Gregory and [Rose] in
8
which Gregory admitted details of the shooting. In the same
conversation, [Rose] acknowledged he was present during the
shooting.”
Citing Banks and Clark, the trial court found Rose was a
major participant. The trial court also found Rose aided and
abetted with the intent to kill: “They went to this location with
the express intent to kill somebody. And the fact that they just
killed the wrong person, it’s really of no consequence because a
murder occurred.” “He is responsible. He is just not the shooter.
He didn’t shoot the gun, but he’s part and parcel of all of this. He
had a way to get out of it. But he was there from start to finish.
He was there when they discovered that they shot the wrong
person. He was one of the people that said, ‘Let’s go get him.
Make sure next time we get the right person,’ but it never
happened.”
The trial court denied the petition for resentencing.
On November 1, 2021, Rose filed a notice of appeal.
DISCUSSION
A. Legal Principles
“Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.)] ‘amend[ed]
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.’ [Citation.]” (People v. Gentile (2020)
10 Cal.5th 830, 842.) “[T]o amend the natural and probable
consequences doctrine, the bill added section 188, subdivision
(a)(3), which requires a principal to act with malice aforethought
before a principal may be convicted of murder. [Citations.]”
9
(People v. Owens (2022) 78 Cal.App.5th 1015, 1021.) “Senate Bill
[No.] 1437 does not eliminate direct aiding and abetting liability
for murder because a direct aider and abettor to murder must
possess malice aforethought.” (People v. Gentile, supra, at p. 848;
see People v. Chiu (2014) 59 Cal.4th 155, 166 [an aider and
abettor may be convicted of premeditated murder as a direct
aider and abettor of the murder, but not as an aider and abettor
under the natural and probable consequences doctrine].)
Senate Bill No. 1437 also added what is now numbered as
section 1172.6 to provide a mechanism whereby people “who
believe they were convicted of murder for an act that no longer
qualifies as murder following the crime’s redefinition in 2019[ ]
may seek vacatur of their murder conviction and resentencing by
filing a petition in the trial court.” (People v. Drayton (2020) 47
Cal.App.5th 965, 973.)
Under section 1172.6, a petitioner first has to make a
prima facie case for relief. (Id., subd. (a).) Here, the People
conceded Rose demonstrated a prima facie case. As the record
reflects, the jury at trial was instructed Rose could be found
guilty based on the concept of natural and probable
consequences. Therefore, the proceedings before us focus on the
final hearing envisioned by section 1172.6, subdivision (d).
At the section 1172.6, subdivision (d) evidentiary hearing,
the trial court acts as an independent fact finder. (See People v.
Owens, supra, 78 Cal.App.5th at p. 1022.) “[T]he burden of proof
. . . shift[s] to the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.” (People
v. Drayton, supra, 47 Cal.App.5th at p. 981; see also § 1172.6,
subd. (d)(1)-(3).) Effective January 1, 2022, the Legislature
clarified “[a] finding that there is substantial evidence to support
10
a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (See § 1172.6, subd.
(d)(3); Stats. 2021, ch. 551, § 2.)
B. Rose Has Not Shown that the Trial Court Erred
Rose challenges whether the trial court used the proper
standard in deciding whether he was entitled to relief. He argues
the trial court was to act as an independent factfinder,
determining whether the prosecution established Rose could still
be convicted of murder beyond a reasonable doubt. He contends
that, instead, the trial court applied something “equivalent to the
substantial evidence standard.”
At the time of the evidentiary hearing, the statutory
mandate was clear that the burden of proof was “on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner [was] ineligible for resentencing.” (See fmr. § 1170.95,
subd. (d)(3).) There was a split of authority only as to whether, in
assessing if the beyond a reasonable doubt standard had been
met, the trial court was to act as an independent factfinder or
apply the equivalent of a substantial evidence test. (See People v.
Garrison (2021) 73 Cal.App.5th 735, 745.)4
4 Only this Division of this court published a decision
holding that at a section 1172.6, subdivision (d)(3) hearing, the
trial court was to conduct the equivalent of a substantial evidence
review. Our Supreme Court ordered this court to vacate this
opinion in People v. Duke, S265309, Supreme Court Minutes,
November 23, 2021, in light of new legislation abrogating Duke,
effective January 1, 2022. Thus, at the time of the evidentiary
hearing, the weight of authority required the trial court to act as
an independent factfinder, and as discussed above, Rose has not
11
Rose does not point to anything in the record that indicates
the trial court did not apply the correct standard.5 In support of
his argument, Rose observes the trial court never stated the
words “beyond a reasonable doubt” at the evidentiary hearing
and concluded the hearing by saying, “So based upon all of this, I
don’t think he’s entitled to relief . . . . I’m going to deny the
petition.”
Rose is correct that the trial court did not expressly state
that it applied a reasonable doubt standard. However, he has not
identified any authority that requires the court to state on the
record that its factual finding was beyond a reasonable doubt.
Indeed, when, as here, there is no question as to the applicable
standard of proof, the trial court need not articulate that
standard and it is presumed that the trial court applied the
correct standard. (See Evid. Code, § 664; Peake v. Underwood
(2014) 227 Cal.App.4th 428, 447; People v. Mack (1986) 178
Cal.App.3d 1026, 1032.) Further, we observe that the trial court
also did not state it reviewed the record for substantial evidence.
Moreover, we are also not persuaded by Rose’s conclusory
argument that the court’s statement that it did not think Rose
was entitled to relief demonstrates that the court applied the
wrong standard.
shown that the trial court chose to act contrary to the weight of
authority.
5 On appeal, we presume the trial court’s order was correct,
and it is Rose’s burden to show that the trial court erred. (See
People v. Kraft (2000) 23 Cal.4th 978, 1050 [“on appeal all
presumptions favor the judgment”]; In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133 [“all intendments and presumptions
are indulged in favor of [the trial court’s order’s] correctness”].)
12
Our review of the October 29, 2021, hearing transcript also
fails to yield any evidence in support of Rose’s argument. To the
contrary, our review indicates the trial court understood it was to
act as an independent factfinder. As it stated, “my responsibility
is to provide an independent review, make a decision based upon
what I read, what’s presented, the transcript, et cetera.”
The parties understood as well. The prosecutor
acknowledged in his argument that the court was to make an
“independent assessment” of the facts in the matter, suggesting
the trial court could not simply review the record for substantial
evidence. Additionally, the prosecution understood it had the
burden to prove theories by which Rose could be held responsible
under existing law. It described, inter alia, the facts that Rose
and Gregory planned to kill Johnson, they drove to the location
where they expected to find Johnson, Sander’s testimony as
contrary to Rose’s assertion that he was a lookout who remained
in the car, and that Rose had the intent to kill Johnson.
For his part, Rose advised the court multiple times in his
written submissions that the prosecutor was required to prove
beyond a reasonable doubt that the conviction could be obtained
based upon a currently valid legal theory and that the court was
to engage in independent factfinding. The court did not disagree
with Rose at the hearing concerning the standard it was to apply;
nor did Rose object at the hearing that the court appeared to
apply an incorrect standard.6
6 When a party fails to object in the trial court, we may
treat the issue as forfeited on appeal. (See People v. Rogers
(2009) 46 Cal.4th 1136, 1175.)
13
Thus, Rose has not demonstrated that the trial court did
not conduct an independent assessment of the evidence, finding
beyond a reasonable doubt, that Rose could still be convicted of
murder.
DISPOSITION
The trial court’s order of October 29, 2021 is affirmed.
NOT TO BE PUBLISHED
BENKE, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
14