Filed 9/16/26 P. v. Rosas CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B342263
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143448)
v.
EDGAR MANUEL ROSAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Reversed and remanded
with directions.
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Shezad H. Thakor and Maggie K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Edgar Manuel Rosas appeals from his
resentencing following remand from this court. Rosas contends,
and the Attorney General agrees, that the trial court violated
Penal Code1 section 1170, subdivision (b) by imposing the upper
term on one count of shooting at an occupied vehicle based on
aggravating circumstances not found true by a jury or admitted
by him. We reverse and remand for resentencing.
BACKGROUND2
On November 15, 2018, a jury convicted Rosas of two
counts of attempted murder (§§ 187, subd. (a), 664; counts 1 & 2),
three counts of shooting at an occupied vehicle (§ 246; counts 6–
8), and possession of a firearm by a felon (§ 29800, subd. (a)(1);
count 9). The jury found true the allegation that each offense,
except count 9, was committed for the benefit of, in association
with, or at the direction of a criminal street gang (§ 186.22, subd.
(b)). The jury also found true the allegations that a principal
personally and intentionally discharged a firearm causing great
bodily injury or death in the commission of the offenses in counts
1, 2, 6, 7, and 8 (§ 12022.53, subds. (b)–(e)). The jury found not
true the allegation that each attempted murder in counts 1 and 2
was committed willfully, deliberately, and with premeditation.
Rosas admitted three prior prison term enhancements
under section 667.5, subdivision (b). The court found true the
aggravating factors that Rosas was an initial instigator of the
fight prior to the shooting, had a prior criminal record, had
1 All further undesignated statutory references are to the
Penal Code.
2 The facts of the underlying case are not pertinent to the
sole issue raised in this appeal.
2
engaged in conduct indicating he is a danger to society, and his
prior convictions as an adult and juvenile were numerous and of
increasing seriousness.3
The trial court imposed consecutive terms of 15 years to life
on counts 6 and 7. The court imposed concurrent terms of 15
years to life on counts 1, 2, and 8. The court struck the
punishment for the firearm enhancements as to counts 1, 2, 6, 7,
and 8. The court imposed a concurrent two-year term for count 9,
and court struck the punishment for the prior prison term
enhancements.
Rosas appealed. This division in a partially published
opinion4 reversed Rosas’s convictions for attempted murder in
counts 1 and 2 based on changes to the law by Senate Bill No.
775 (2021–2022 Reg. Sess.). We also reversed the true findings
on the gang allegations based on the amendments to the law by
Assembly Bill No. 333 (2021–2022 Reg. Sess.). The reversal of
the gang allegations required reversal of the vicarious gang-
related firearm allegations (§ 12022.53, subds. (b)–(e)) because
there was an insufficient basis to support the true findings on
them.
We remanded the matter to the trial court to allow the
District Attorney to retry counts 1 and 2 and the gang and
firearm allegations. We otherwise affirmed the judgment as to
counts 6, 7, and 8.
3 The minute order indicates that the trial court also made
findings that the crimes involved planning and sophistication and
the victims were particularly vulnerable.
4 People v. Perez et al. (B300396, May 2, 2022).
3
On October 21, 2024, the District Attorney announced that
he was unable to proceed to trial on the attempted murder counts
and the gang and firearm allegations. The court dismissed those
counts and allegations.
On June 5, 2025, the trial court took judicial notice of the
circumstances in aggravation and mitigation that were
previously identified at the initial sentencing hearing. The court
imposed the upper term of seven years on count 6 and a
consecutive term of one year eight months on count 7. The court
imposed concurrent terms of five years and two years,
respectively on counts 8 and 9.
Rosas timely appealed.
DISCUSSION
Rosas and the Attorney General agree that the trial court
improperly imposed the upper term of seven years on count 6,
shooting at an occupied vehicle, based on aggravating
circumstances that were never admitted or found true beyond a
reasonable doubt by a jury, as required by section 1170,
subdivision (b). We agree as well.
The Fifth and Sixth Amendments to the United States
Constitution require that a jury find beyond a reasonable doubt
“any fact that increases the penalty for a crime beyond the
prescribed statutory maximum.” (Apprendi v. New Jersey (2000)
530 U.S. 466, 490; Cunningham v. California (2007) 549 U.S.
270, 282; People v. Wiley (2025) 17 Cal.5th 1069, 1078 (Wiley).)
Section 1170, subdivision (b)(2) codified this requirement by
authorizing a court to impose the upper term only when the facts
underlying an aggravating circumstance, other than a prior
conviction, “have been stipulated to by the defendant or have
been found true beyond a reasonable doubt.”
4
We recognize that allegations of prior convictions may be
tried by the court alone. (§ 1170, subd. (b)(3).) But here, the
court did not exclusively rely on aggravating circumstances
related to prior convictions. Additionally, one of the aggravating
circumstances related to prior convictions—Rosas’s prior
convictions as an adult and juvenile were numerous and of
increasing seriousness—involves more than the permissible
factual finding by a court that the convictions were sustained.
(Wiley, supra, 17 Cal.5th at p. 1083.)
When the sentencing court relies on an aggravating
circumstance not found by a jury, the reviewing court must apply
the standard of prejudice under Chapman v. California (1967)
386 U.S. 18. (People v. Lynch (2024) 16 Cal.5th 730, 742–743
(Lynch); Wiley, supra, 17 Cal.5th at p. 1087.) We must reverse
the sentence unless we conclude “ ‘beyond a reasonable doubt
that a jury, applying that same standard, would have found true
all of the aggravating facts upon which the court relied to
conclude the upper term was justified, or that those facts were
otherwise proved true in compliance with the current statute.
[Citation.]’ ” (Wiley, at p. 1087.) “Lack of a jury trial is not
harmless under Chapman if ‘the record contains evidence that
could rationally lead to a contrary finding’ with respect to the
aggravating fact at issue. [Citations.]” (Ibid.)
We agree with both parties that we cannot conclude beyond
a reasonable doubt that the jury would have found the
aggravating factors true. (Lynch, supra, 16 Cal.5th at p. 768.)
For example, whether Rosas was a “danger to society” is a
subjective factual determination. (Id. at p. 776.).) Because the
inquiry into the circumstances is “comparative and qualitative,”
we cannot “ ‘ “ ‘conclude with confidence that . . . the jury would
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have assessed the facts in the same manner as the trial
court.’ ” ’ ” (Wiley, supra, 17 Cal.5th at pp. 1089–1090.)
Because the omission of a jury trial was not harmless
beyond a reasonable doubt as to every aggravating fact relied
upon by the trial court to impose an upper term, we must reverse
Rosas’ sentence. On remand, the proceedings must comply with
“the current statutory requirements and [Rosas] given the
opportunity for [a] jury trial.” (Lynch, supra, 16 Cal.5th at p.
777.) The trial court may rely on any properly proven
aggravating facts and retains its discretion to impose an upper
term sentence. (Id. at p. 778.) If the court cannot conclude that
one or more properly proved circumstances justifies an upper
term sentence, it may impose no more than the middle term.
(Ibid.)
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DISPOSITION
We reverse the judgment imposing the upper term sentence
on count 6 and remand the matter with directions to the trial
court for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
ADAMS, P. J.
OCHOA, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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