THE PEOPLE, Plaintiff and Respondent, v. MELINDA ROSE ROCHA, Defendant and Appellant.
B327631
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 9/20/24
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. KA056510). APPEAL from an order of the Superior Court of Los Angeles County. Mike Camacho, Judge. Affirmed.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Jared G. Coleman, 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, Nicholas Webster and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
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We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In March 2002, defendant drove a known gang member (Jorge Rivera), who was the brother of her roommate and a member of the same gang as her boyfriend (The Townsmen), to a residential neighborhood in rival gang territory. She slowed down in front of a home where several rival gang members were standing, and Rivera fired multiple shots, one of which struck a four-year-old child playing outside with his younger brother. Defendant then sped off and dropped Rivera back at a house controlled by The Townsmen gang. Defendant, who was on probation at the time for drug offenses, had her car painted a different color after the shooting.
Defendant was charged with four counts of premeditated attempted murder (
The jury found defendant guilty of first degree premeditated attempted murder (count 3), attempted murder (count 1) and shooting at an inhabited dwelling (count 5). The allegations that a principal used and discharged a firearm in the commission of the offenses were found true as to counts 1 and 3. In addition, the allegation that a principal used a firearm causing great bodily injury was found true as to count 1 (the four-year-old victim). The gang allegation was found true as to all three counts. The jury acquitted defendant on counts 4 and 6. Count 2 was dismissed by the court before the start of the jury‘s deliberations.
In defendant‘s direct appeal, this court modified defendant‘s custody credits and affirmed her conviction in all other respects (People v. Rocha (Oct. 29, 2003, B162152) [nonpub. opn.]).
After defendant‘s conviction became final, the Legislature passed two pieces of legislation amending the law regarding liability for murder and attempted murder: Senate Bill 1437 (2017–2018 Reg. Sess.) which became effective January 1, 2019 (Stats. 2018, ch. 1015, § 4) and Senate Bill 775 (2021–2022 Reg. Sess.) which became effective January 1, 2022 (Stats. 2021, ch. 551, § 2).
As relevant here, the new legislation amended
On January 18, 2022, defendant filed in propria persona a form petition for resentencing pursuant to
This appeal followed. We grant the People‘s request to take judicial notice of the reporter‘s transcripts that were included in the appellate record in defendant‘s direct appeal (People v. Rocha, supra, B162152).
DISCUSSION
We independently review the denial of a
Sentencing relief under
The record of conviction here unequivocally establishes that defendant was prosecuted and convicted of attempted murder and attempted premeditated murder as a direct aider and abettor who acted with the intent to kill, and not under the natural and probable consequences doctrine. Defendant concedes the jury was not instructed with the natural and probable consequence doctrine.
Defendant argues however that the prosecutor‘s argument and discussion of the jury instructions could have misled the jury
Unlike here, the jury in Curiel was instructed with the natural and probable consequences doctrine. (Curiel, supra, 15 Cal.5th at p. 468.) Curiel explained that “[b]ecause the jury was instructed on the natural and probable consequences doctrine, the jury was required to find only that Curiel knew that Hernandez intended to commit one of the underlying target offenses and that Curiel intended to aid him in that offense, not murder. Nor was the jury required to find that the underlying target offenses, themselves, were dangerous to human life. While the jury separately found Curiel intended to kill, such an intent standing alone is insufficient to establish the requisite mens rea for aiding and abetting murder.” (Id.)
Curiel also noted the narrowness of its holding. “We hold only that under the jury instructions here, the findings the jury must have made are insufficient to conclusively establish that Curiel is liable for murder under current law.” (Curiel, supra, 15 Cal.5th at p. 471, italics added.)
Unlike the jury in Curiel, defendant‘s jury was instructed that in order for a person to be guilty of attempted murder, the person must act with the “specific intent to kill unlawfully” another human being. (CALJIC No. 8.66.) CALJIC No. 3.01 told the jury that a person aids and abets a direct perpetrator of attempted murder if the person acts “[w]ith knowledge of the unlawful purpose of the perpetrator” and “[w]ith the intent or purpose” of aiding the direct perpetrator‘s criminal act. Collectively, the instructions
Moreover, nothing in the prosecutor‘s arguments would have misled a reasonable jury. The prosecutor did not mischaracterize any of the instructions and admonished the jurors to follow the court‘s instructions on the law in the event the prosecutor or defense counsel inadvertently paraphrased the instructions. The court‘s instructions to the jury, as explained above, accurately stated the law regarding direct aiding and abetting liability for attempted murder. The prosecutor also told the jury that if they believed defendant had no knowledge of Rivera‘s intent to kill, “then you will have to acquit her.”
Defendant did not establish her eligibility for resentencing, and her petition was therefore properly denied. (People v. Strong (2022) 13 Cal.5th 698, 708 [“If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.“].)
DISPOSITION
The order denying defendant and appellant Melinda Rose Rocha‘s petition for resentencing is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.