P. v. Rose
A jury convicted Earl Eugene Rose of first degree felony murder, attempted murder (two counts), robbery, attempted robbery, and possession of a firearm by a felon. The jury found that Rose committed the murder during the commission of a robbery and that he intentionally discharged a firearm, resulting in death and great bodily injury. The jury also found that Rose had four prior strike convictions, one prior prison term conviction, and five prior serious felony convictions.[1] The court sentenced Rose to life without the possibility of parole, consecutive to 125 years to life, consecutive to a determinate term of 26 years.
Rose contends (1) the court denied him his constitutional rights to due process and jury trial by instructing the jury with an erroneous special instruction regarding an uncharged robbery offense that allowed the jury to find the key fact of identity on a reduced burden of proof; (2) the court prejudicially erred by instructing the jury with CALCRIM No. 376 (regarding possession of recently stolen property as evidence of a crime) because in conjunction with the court's special instruction regarding the uncharged offense, it allowed the prosecution to establish identity under a reduced burden of proof; (3) his trial counsel was ineffective in failing to object when the prosecutor improperly discussed the uncharged crime evidence as proof of identity, intent, and criminal propensity during closing argument; (4) the cumulative effect of the three preceding assignments of error denied him a fair trial; (5) there was insufficient evidence of intent to kill to support the attempted murder conviction as to Anna Rodriguez; (6) the mode of culpability constructed by Penal Code[2] sections 187, 189, and 190.2, subdivision (a)(17)(A), creating a sentence of life without parole for a killing during a robbery, whether premeditated or not, is unconstitutionally vague as applied to this case; and
(7) his sentence on two prior serious felony enhancements must be reversed.
Comments on P. v. Rose