Opinion
D081423
04-10-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ROSALES JR., Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Felicity A. Senoski, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS255009, Ana L. Espana, Judge. Reversed and remanded with directions.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Felicity A. Senoski, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
MEMORANDUM OPINION
CASTILLO, J.
Robert Rosales Jr., who pled guilty to voluntary manslaughter, appeals an order summarily denying at the prima facie stage his petition for resentencing under Penal Code section 1170.95 (renumbered and now section 1172.6). Rosales claims the trial court erred in dismissing the petition without issuing an order to show cause because the record of conviction did not contain substantial evidence that he was the direct perpetrator, was a major participant in the killing, or acted with reckless indifference to human life. The Attorney General concedes the trial court erred by denying the petition, but on the ground that the record of conviction does not establish Rosales' ineligibility for relief as a matter of law. We find this matter appropriately resolved by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847) and, accepting the Attorney General's concession and reasoning, reverse and remand with directions.
In 2012, Rosales and two codefendants were charged with murder under Penal Code section 187, subdivision (a). In 2015, Rosales pled guilty to voluntary manslaughter (§ 192, subd. (a)) and admitted that he personally used a deadly or dangerous weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)). In July 2022, Rosales filed a petition to vacate his conviction and be resentenced under section 1172.6. The People responded that Rosales failed to establish a prima facie case for relief. The trial court summarily denied the petition in October 2022, finding Rosales had not made a prima facie claim for relief. The court concluded "[t]he record of conviction"-which included the 2012 information, the preliminary hearing transcript, Rosales' change of plea form, and the court's minutes- "demonstrates that the petitioner was an actual perpetrator, and acted with the malice required under amended sections 188 or 189" because Rosales "admitted that he personally used a deadly or dangerous weapon . . . in the commission of the unlawful killing."
Effective 2019, the Legislature amended the Penal Code to provide that a defendant who participated but was not the direct perpetrator in a murder cannot be convicted of murder based on imputed malice. (People v. Basler (2022) 80 Cal.App.5th 46, 54.) Rather, a murder conviction requires the defendant's personal actions and subjective intent. (Ibid.) Section 1172.6 provides a mechanism for defendants who, like Rosales, were "charged with murder and who would have been subject to prosecution for murder under a . . . theory of imputed malice" but instead pled guilty to manslaughter or a lesser offense to seek relief from their convictions. (People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211.)
A trial court reviewing a section 1172.6 petition first must determine if the petitioner made a prima facie showing of entitlement to relief. (People v. Lewis (2021) 11 Cal.5th 952, 971.) The court, accepting the allegations as true, evaluates whether the petitioner would be entitled to relief if the allegations were proven. (Ibid.) The court can review the record of conviction to determine whether the record rebuts the allegations but cannot engage in factfinding, weigh the evidence, or assess credibility. (Id. at pp. 971-972, citing People v. Drayton (2020) 47 Cal.App.5th 965, 979-980.) Denying a resentencing petition at this stage is appropriate if, as a matter of law, the record of conviction demonstrates the petitioner's ineligibility for relief; otherwise, the court must issue an order to show cause and allow the petitioner to submit additional relevant evidence. (People v. Ervin (2021) 72 Cal.App.5th 90, 101 (Ervin); § 1172.6(c) &(d).) Whether a petitioner is ineligible for relief as a matter of law is a pure legal issue we determine de novo. (Ervin, at p. 101.)
With these principles in mind, we agree with the Attorney General that the record of Rosales' conviction did not conclusively establish his ineligibility for relief as a matter of law. First, the preliminary hearing transcript only established that the victim's death resulted from a fight between the victim and a group that included Rosales. The evidence showed the victim was stabbed five times, that only one of the stab wounds was fatal, and that as many as six perpetrators attacked the victim. The evidence was inconclusive as to who delivered the fatal blow and with what weapon. Second, Rosales' admission in his guilty plea to possession and use of a knife was not an admission to all elements of murder such that he is ineligible for resentencing as a matter of law. (See People v. Offley (2020) 48 Cal.App.5th 588, 598.) This admission may have supported a murder conviction based on a natural and probable consequences theory under prior law, but it does not establish malice aforethought. Without more, a plea to voluntary manslaughter alone does not support a murder conviction under current law. Malice is not an element of voluntary manslaughter. (§ 192.) Thus, because there was not conclusive evidence that Rosales was guilty of murder under current law, the court erred in denying the petition for resentencing at the prima facie stage. (See People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211-1213.) Because we remand the matter to redress this error, we need not address Rosales' due process argument.
DISPOSITION
We reverse the trial court's order denying the petition. On remand, the trial court is directed to issue an order to show cause pursuant to section 1172.6, subdivision (c), and to conduct an evidentiary hearing pursuant to subdivision (d).
WE CONCUR: DATO, Acting P.J., RUBIN, J.