People v. Villalobas CA2/6

Facts Our opinion in appellant’s previous appeal contains the following statement of facts: “Paul Rodarte was a member of the 38th Street gang. Appellant and Jesse [also known as Jesus] Morales were ‘associates’ who had not been initiated into the gang. All three were present at a party when a member of the rival Barrio Mojadas (BMS) gang drove by and shot at them. Intending to retaliate, Rodarte and Morales got into appellant’s car and he drove them into BMS gang territory at 49th and Compton. Rodarte was in the front passenger seat and Morales was seated in the rear. Rodarte reached across appellant and fired a handgun through the open driver’s side window at ‘some bald- headed individuals on the sidewalk.’ Someone returned fire, fatally wounding Morales.” (Villalobos, supra, B157098, slip opn. at p. 2, fn. omitted.) Discussion Appellant contends he is eligible for relief under section 1172.6 because he did not commit the provocative act and the jury could have convicted him of murder, attempted murder and

2 conspiracy to commit murder by imputing to him the malice of the provocateur. We are not persuaded. Senate Bill No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437) amended the…