P. v. Rosas CA4/3

Filed 8/4/26 P. v. Rosas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G065090

v. (Super. Ct. No. C-93787)

JAIME SALAZAR ROSAS, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of
Orange County, Andre Manssourian, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Collette C. Cavalier, Tami Falkenstein Hennick
and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1992, Jaime Salazar Rosas was convicted of multiple offenses
he committed when he was 17 years old, including the murder of Miguel
Gallardo and the torture and attempted murder of C.J. Rosas was sentenced
to a total term of 39 years and eight months to life imprisonment, plus life
with the possibility of parole. In December 2024, Rosas filed a petition for
recall and resentencing under Penal Code section 1170, subdivision (d)(1).1
The trial court denied the petition, finding Rosas was ineligible because his
sentence is not life without the possibility of parole (LWOP) or its functional
equivalent, and even if it were, he is ineligible because he was convicted of
torture under section 206. On appeal, Rosas concedes he is not eligible for
recall and resentencing on the torture count, but contends he is eligible for
resentencing on the remaining counts because the aggregate sentence on the
“remaining counts is 34 years, eight months to life, which is the functional
equivalent of LWOP.” Even if Rosas is correct that he remains eligible for
relief on the counts other than for torture, we disagree that his sentence of 34
years and eight months to life on the other counts is the functional equivalent
of LWOP.2 We affirm.

1
All undesignated statutory references are to the Penal Code.

2
The Attorney General’s respondent’s brief says Rosas argues his
sentence of 39 years and eight months to life is the functional equivalent of
LWOP. In his opening brief on appeal, Rosas argues his sentence of 34 years
and eight months to life is the functional equivalent of LWOP, but in his
reply brief, Rosas discusses both 34 years and 39 years and eight months.
The five-year difference appears to come from whether the five-year firearm
enhancement on the torture count is considered for purposes of Rosas’s
arguments on appeal. In this opinion, we generally refer to the total sentence
at issue here as being 34 years and eight months to life because that is what
Rosas argues in his opening brief, but we would reach the same conclusion if
the sentence at issue here were 39 years and eight months to life.

2
FACTUAL AND PROCEDURAL BACKGROUND
In a 1992 information, Rosas was charged with eight counts:
count 1 alleged the murder of Gallardo on or about November 18, 1991 (Pen.
Code, § 187, subd. (a)); count 2 alleged the attempted murder of C.J. on or
about October 15, 1991 (Pen. Code, §§ 664, 187, subd. (a)); count 3 alleged the
torture of C.J. on or about October 15, 1991 (Pen. Code, § 206); counts 4 and 5
alleged the second degree robbery of C.J. and A.F. on or about October 15,
1991 (Pen. Code, §§ 211, 212.5, 213, subd. (a)(2)); count 6 alleged the
attempted second degree robbery of John Doe on or about October 15, 1991
(Pen. Code, §§ 664, 211, 212.5, 213, subd. (a)(2)); count 7 alleged shooting at
an unoccupied vehicle on or about December 25, 1991 (Pen. Code, § 247, subd.
(b)); and count 8 alleged misdemeanor escape from a county facility on or
about September 21, 1991 (Welf. & Inst. Code, § 871, subd. (a)). The
information also alleged Rosas personally used a firearm in the commission
and attempted commission of the offenses in counts 1 through 6 within the
meaning of Penal Code sections 1203.06, subdivision (a)(1) and 12022.5,
subdivision (a). It further alleged Rosas inflicted great bodily injury upon C.J.
in the commission and attempted commission of the offenses in counts 2 and
4 within the meaning of Penal Code section 12022.7.
In 1992, a jury convicted Rosas on counts 1 through 7.3 The jury
also found true the allegations that Rosas personally used a firearm and
personally inflicted great bodily injury. The trial court sentenced Rosas to
consecutive terms of 25 years to life on count 1, life with the possibility of
parole on count 3, five years for each of the firearm enhancements on counts

3
Rosas separately pled guilty to count 8, and the trial court
sentenced him to a stayed term of six months in county jail on that count.

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1 and 3 (10 years total), and four years and eight months for counts 4, 5, and
7.4 Thus, Rosas was sentenced to a total term of 39 years and eight months to
life imprisonment, plus life with the possibility of parole.
In December 2024, Rosas filed a petition for recall and
resentencing pursuant to section 1170, subdivision (d)(1), and People v. Heard
(2022) 83 Cal.App.5th 608 (Heard).5 The trial court denied the petition on two
grounds. First, the court found Rosas was “statutorily ineligible for relief
because his sentence of 39 years, 8 months to life was not a sentence to
LWOP nor its functional equivalent.” Second, the court found that, even if
Rosas’s sentence could be considered the functional equivalent of LWOP, he
was ineligible because he was convicted of torture under section 206. Rosas
appeals from the court’s order denying his petition.
DISCUSSION
Under section 1170, subdivision (d)(1)(A), “[w]hen a defendant
who was under 18 years of age at the time of the commission of the offense
for which the defendant was sentenced to imprisonment for life without the
possibility of parole has been incarcerated for at least 15 years, the defendant
may submit to the sentencing court a petition for recall and resentencing.”

4
The trial court stayed sentences as to count 2 and the other
enhancements. The court ordered the sentence on count 6 to be served
concurrently.

5
In October 2024, this court affirmed the trial court’s denial of
Rosas’s petition for resentencing under section 1172.6. (People v. Rosas (Oct.
24, 2024, G062933) [nonpub. opn.].) While that appeal was pending, the trial
court declined to rule on two other petitions filed by Rosas under section
1170, subdivision (d)(1), because the trial court determined it lacked subject
matter jurisdiction while the appeal was pending.

4
(Ibid.)6 Additionally, section 1170, subdivision (d)(1)(B) provides:
“Notwithstanding subparagraph (A), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where it was pled
and proved that the defendant tortured, as described in [s]ection 206, their
victim . . . .” (Ibid.)
As an initial matter, the parties dispute whether Rosas is
ineligible for relief because one of his offenses was for torture under section
206. The Attorney General argues “[t]he torture conviction disqualifies him
from resentencing as to all counts underlying his aggregate term.” Rosas
asserts “the torture offense in count three involved a separate incident and
separate victim than the murder conviction in count one.” Rosas concedes he
“is not eligible for recall and resentencing as to count three, torture,” but
argues he “is eligible as to the remaining counts” because “[t]he aggregate
sentence as to those counts is 34 years, eight months to life, which is the
functional equivalent of LWOP.” We need not resolve this issue because, even
if Rosas is correct that he remains eligible for relief on the counts other than
for torture, we disagree that his sentence of 34 years and eight months to life
on the other counts is the functional equivalent of LWOP.

6
Under section 1170, subdivision (d)(2), “[t]he petition shall
include the defendant’s statement that the defendant was under 18 years of
age at the time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant’s statement describing their remorse and
work towards rehabilitation, and the defendant’s statement that one of” the
qualifying circumstances is true. (Ibid.) “If the court finds by a preponderance
of the evidence that one or more of the qualifying circumstances in the
petition are true, the court must recall the defendant’s sentence and hold a
hearing to resentence the defendant.” (In re Kirchner (2017) 2 Cal.5th 1040,
1050.)

5
Rosas relies on Heard to argue that section 1170, subdivision
(d)(1), cannot exclude defendants who were sentenced to the functional
equivalent of LWOP for offenses committed when they were under 18 years
old. In Heard, the defendant, who was sentenced to 23 years plus 80 years to
life for offenses he committed when he was 15 and 16 years old, appealed the
denial of his petition under section 1170, subdivision (d)(1). (Heard, supra, 83
Cal.App.5th at p. 612.) The appellate court rejected the defendant’s argument
that section 1170, subdivision (d)(1), “should be interpreted to apply to
juvenile offenders sentenced to the functional equivalent of life without
parole” (Heard, at p. 622), and instead interpreted the statute to limit
“eligibility to petition for recall and resentencing to juvenile offenders
sentenced to an explicitly designated life without parole term” (id. at p. 626).
The court, however, “conclude[d] denying juvenile offenders, who were
sentenced to the functional equivalent of life without parole, the opportunity
to petition for resentencing violates the guarantee of equal protection.” (Id. at
p. 612.) It determined the defendant was “similarly situated for purposes of
section 1170, subdivision (d)(1)(A), with those juvenile offenders who are
eligible to petition for resentencing.” (Id. at p. 628.) The court explained that,
at the time the defendant was sentenced, his sentence was de facto LWOP
because it required him to serve 103 years before becoming eligible for parole,
and although he would meet the requirements for a youth offender parole
hearing under section 3051, that statute was not enacted at the time he was
sentenced. (Heard, at pp. 628–629.) The court further stated it was “unable to
identify a rational basis for making juveniles sentenced to an explicitly
designated life without parole term, but not juveniles sentenced to the
functional equivalent of life without parole, eligible to petition for
resentencing under section 1170, subdivision (d)(1).” (Id. at p. 633.) Some

6
appellate courts have followed the reasoning of Heard. (See People v. Bagsby
(2024) 106 Cal.App.5th 1040, 1046, 1054–1056; People v. Sorto (2024) 104
Cal.App.5th 435, 439–440.)
As discussed, the defendant in Heard was required to serve 103
years before becoming eligible for parole. (Heard, supra, 83 Cal.App.5th at
pp. 612, 629.) As support for its conclusion that the defendant’s sentence was
the functional equivalent of LWOP, the appellate court in Heard cited People
v. Caballero (2012) 55 Cal.4th 262 (Caballero). (Heard, at p. 629; see also
People v. Baldwin (2025) 113 Cal.App.5th 978, 993 (Baldwin) [“the [Heard]
court embraced no specific analytical method for determining what term-of-
years sentence constituted the functional equivalent of LWOP; instead, the
court relied on Caballero’s application of functional equivalency and
explained the defendant would have to serve 103 years before becoming
parole eligible, which ‘constitutes a de facto [LWOP] sentence’”].) In
Caballero, our Supreme Court “conclude[d] that sentencing a juvenile
offender for a nonhomicide offense to a term of years with a parole eligibility
date that falls outside the juvenile offender’s natural life expectancy
constitutes cruel and unusual punishment in violation of the Eighth
Amendment.” (Caballero, at p. 268.)
Rosas also relies on another case decided in the context of an
Eighth Amendment challenge, People v. Contreras (2018) 4 Cal.5th 349
(Contreras), to support his argument that his sentence is the functional
equivalent of LWOP. In Contreras, our Supreme Court held that sentences of
50 years to life for one defendant and 58 years to life for another defendant
who committed their crimes as 16 year olds violated the Eighth Amendment.
(Contreras, at p. 356.) In reaching that decision, our Supreme Court rejected
the Attorney General’s argument that a sentence is not the functional

7
equivalent of LWOP if it provides an opportunity for parole within the
juvenile’s expected natural lifetime based on certain data of life expectancies.
(Id. at pp. 360–364.) Our Supreme Court underscored that, under Graham v.
Florida (2010) 560 U.S. 48, “juvenile nonhomicide offenders must be given
‘some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.’” (Contreras, at p. 364.) It further explained the
United States Supreme Court “did not define the maximum length of
incarceration before parole eligibility that would be permissible in light of the
concerns it set forth in Graham,” but the United States Supreme Court
“made clear the nature of its concerns: A lawful sentence must recognize ‘a
juvenile nonhomicide offender’s capacity for change and limited moral
culpability.’ [Citation.] A lawful sentence must offer ‘hope of restoration’
[citation], ‘a chance to demonstrate maturity and reform’ [citation], a ‘chance
for fulfillment outside prison walls,’ and a ‘chance for reconciliation with
society’ [citation]. A lawful sentence must offer ‘the opportunity to achieve
maturity of judgment and self-recognition of human worth and potential.’
[Citation.] A lawful sentence must offer the juvenile offender an ‘incentive to
become a responsible individual.’” (Contreras, at p. 367.)
We note the law is currently unsettled in the Courts of Appeal
regarding how Contreras applies in the context of an equal protection
challenge to section 1170, subdivision (d).7 As one court has explained, “[t]he

7
At our invitation, the parties filed supplemental letter briefs
regarding whether Rosas is ineligible for a youth offender parole hearing
under section 3051; what effect, if any, People v. Ortega (2025) 111
Cal.App.5th 1252 (Ortega), review granted September 17, 2025, S292070, has
on this appeal; and what effect, if any, People v. Thompson (2025) 112
Cal.App.5th 1058 (Thompson), review granted September 24, 2025, S292540,
and Baldwin, supra, 113 Cal.App.5th 978, have on this appeal.

8
Courts of Appeal are presently split on whether Contreras’s Eighth
Amendment formulation of functional equivalency applies to equal protection
challenges to section 1170[, subdivision (d),] based on Heard, and whether a
sentence of 50 years to life for homicide crimes constitutes the functional
equivalent of LWOP in that context.” (Baldwin, supra, 113 Cal.App.5th at
p. 984.) In People v. Cabrera (2025) 111 Cal.App.5th 650, the court held the
defendant’s 50 years to life sentence was the functional equivalent of LWOP
in the context of an equal protection challenge to section 1170, subdivision
(d)(1). (Cabrera, at p. 653.) Conversely, in People v. Munoz (2025) 110
Cal.App.5th 499 (Munoz), review granted June 25, 2025, S290828, the court
distinguished Contreras and held the defendant’s sentence of 50 years to life
for offenses he committed when he was 15 years old was not the functional
equivalent of LWOP in the context of an equal protection challenge to section
1170, subdivision (d)(1). (Munoz, at pp. 502–503, 510–511; see also
Thompson, supra, 112 Cal.App.5th at pp. 1062, 1072–1074, rev. gr.
[distinguishing Contreras and concluding the defendant’s sentence of 50
years to life was not the functional equivalent of LWOP]; Baldwin, supra, 113
Cal.App.5th at p. 985 [“we are persuaded by Thompson’s conclusion that an
equal protection analysis to section 1170[, subdivision (d),] requires ‘an equal
protection specific’ analysis that is not centered on Eighth Amendment
concerns [citation], and we join in that court’s reasoning”].)8

8
In Ortega, the defendant, who originally was sentenced to 25
years to life plus 17 years, appealed from the denial of his petition under
section 1170, subdivision (d)(1). (Ortega, supra, 111 Cal.App.5th at p. 1256,
rev. gr.) The defendant, however, had been provided a youth offender parole
hearing under section 3051. (Id. at p. 1257, fn. 2.) A panel of this court noted
it “need not decide whether [the defendant’s] 42-year-to-life sentence is the
functional equivalent of LWOP, and, if so, whether it is unconstitutional,
because his claim is moot.” (Id. at p. 1262.) Ortega disagreed with Heard on

9
Given its pending review of Munoz, it appears our Supreme Court
may resolve the split of authority regarding whether section 1170,
subdivision (d)(1), violates equal protection by excluding a defendant
sentenced to 50 years to life because that sentence is the functional
equivalent of LWOP. We need not decide that issue in this case, however,
because Rosas’s sentence at issue here is significantly less than 50 years to
life. Even assuming Contreras’s functional equivalent standard applies in
this context, we conclude Rosas’s sentence at issue here of 34 years and eight
months to life is not the functional equivalent of LWOP, and Rosas therefore
is not eligible for relief under section 1170, subdivision (d)(1), and Heard.
Rosas argues, “[g]iven the California parole process, juvenile
offenders’ average lifespan in prison ranging from 57 to 60, and the
challenges people face upon release, appellant’s 34 years, eight months to life
sentence, which would make him parole eligible in his 50’s, does not provide
[him] with a meaningful opportunity for release and time to establish life
outside of prison; [his] sentence is a de facto LWOP sentence.” Rosas,
however, has not cited any California case that held a sentence for a juvenile
offender of less than 40 years is the functional equivalent of LWOP; instead,
the California cases relied on by Rosas that held a sentence for a juvenile
offender to be the functional equivalent of LWOP involve sentences that are
significantly longer. (See Contreras, supra, 4 Cal.5th at p. 356 [50 years to life
and 58 years to life]; People v. Cabrera, supra, 111 Cal.App.5th at p. 652 [50
years to life]; People v. Bagsby, supra, 106 Cal.App.5th at p. 1046 [107 years

whether a defendant’s eligibility for a youth offender parole hearing moots an
equal protection claim under section 1170, subdivision (d)(1). (Ortega, at
pp. 1263–1265.) Rosas and the Attorney General agree Rosas is ineligible for
a youth offender parole hearing and Ortega therefore does not apply here.

10
to life]; People v. Sorto, supra, 104 Cal.App.5th at p. 440 [140 years to life];
Heard, supra, 83 Cal.App.5th at p. 612 [103 years to life].)9 We conclude
Rosas’s sentence at issue here of 34 years and eight months to life, which
would have provided parole eligibility around age 52, is not the functional
equivalent of LWOP and it would have provided a meaningful opportunity to
obtain release and a realistic opportunity to reintegrate with society. (See
People v. Olmos (2025) 109 Cal.App.5th 580, 583 [concluding sentence of 33
years to life was not the functional equivalent of LWOP]; People v. Perez
(2013) 214 Cal.App.4th 49, 51, 58 [concluding “by no stretch of the
imagination can this case be called a ‘functional’ or ‘de facto’ LWOP” where
the defendant was sentenced to 30 years to life and would be eligible for
parole at age 47].)
Finally, Rosas cites studies and statistics regarding life
expectancy in prison. Rosas did not present this data to the trial court, and
we therefore “cannot evaluate their untested validity and do not consider
them.” (Munoz, supra, 110 Cal.App.5th at p. 508, rev. gr.; see also Thompson,
supra, 112 Cal.App.5th at p. 1077, rev. gr. [noting the defendant relied on
data not presented to the trial court and agreeing with Munoz that “‘we

9
Citing cases from other state courts, Rosas also asserts that
determining his “34 years, eight months-to-life sentence is a de facto LWOP
sentence would accord with state supreme court determinations regarding
draconian sentencing of juvenile offenders, decided before and after
Contreras.” The cases from other state courts, however, are not binding on us.
(See US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 905.)
Nor do we find these cases persuasive support that Rosas is eligible for relief
under section 1170, subdivision (d)(1).

11
cannot evaluate their untested validity’ and therefore have a basis to
disregard them”].)10
DISPOSITION
The order denying Rosas’s petition under section 1170,
subdivision (d)(1), is affirmed.

GOODING, J.

WE CONCUR:

MOTOIKE, P. J.

SANCHEZ, J.

10
Similarly, Rosas cites data regarding the percentage of
defendants who obtain parole at their first parole hearing, asserting “this
Court should consider the difficulty of receiving a grant at a parole hearing.”
Again, however, Rosas did not present this data to the trial court. Moreover,
we will not speculate as to what arguments Rosas might make at a parole
hearing and his likelihood of success.

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