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Lowenthal Finds Connolly Didn’t Act Unethically As D.D.A.
Judge Does Not Mention by Name Colleague on L.A. Superior Court Who Purported to Challenge Him for Cause; Denies Resentencing Petition of Man Convicted of Murder, Finds He Knew Victim Was a Peace Officer
By a MetNews Staff Writer
Los Angeles Superior Court Judge Daniel J. Lowenthal has denied the resentencing bid of a man who was convicted of a 2006 murder, omitting, in his order, any reference by name to his colleague, Patrick E. Connolly, who earlier this year attempted to intercede in the proceeding and disqualify Lowenthal for cause.
Connolly, elected to the bench in 2008, was the deputy district attorney who, in 2007, obtained the conviction of Justin Ashley Flint, the petitioner in the proceeding before Lowenthal. Connolly alleged bias based on comments made by Lowenthal from the bench faulting the prosecution for not having turned over to the defense certain exculpatory evidence.
But in Lowenthal’s ruling on Thursday, which followed hearings on Tuesday and Wednesday, no intentional misconduct on the part of the prosecution was found, in essence exonerating Lowenthal.
The judge held that Flint was statutorily ineligible for relief under what is now Penal Code §1172.6 because the victim, Maria Cecilia Rosa, was a “peace officer”—in particular, a Los Angeles County sheriff’s deputy—and the facts, he found, do not bear out Flint’s contention that he was oblivious to Rosa’s law enforcement status.
Lowenthal made only a brief reference to Connolly’s attempt to disqualify him, saying:
“On March 27, 2023, two days before the section 1172.6 hearing, the court was served with a motion, pursuant to Code of Civil Procedure §170.1, from a non-party. The Los Angeles County Superior Court opposed the motion. The motion was assigned, by order of the California Judicial Council, to Orange County Superior Court Assistant Presiding Judge Cheri T. Pham. On May 4, 2023, Judge Pham denied the motion. The section 1172.6 hearing was then recalendared for the parties’ earliest availability, August 29, 2023.”
Statutory Changes
Under §1172.6, resentencing may be sought where the defendant “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” The amendments virtually abolished the felony-murder rule which fictionally imputed the killer’s malice to all co-participants in an underlying felony.
It was Flint’s co-defendant, Frank Gonzalez, who fatally shot Rosa during a robbery on the driveway of her home. Under subd. (e) of §189, as amended, a person who was not the actual killer ordinarily is not guilty of murder unless that person, in the course of the commission of a felony, acted with “the intent to kill” or “was a major participant in the underlying felony and acted with reckless indifference to human life.”
However, subd. (f) provides:
“Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.”
Lowenthal discussed Flint’s allegation of prosecutorial misconduct in withholding exculpatory evidence—though not strictly related to whether the petitioner is eligible for relief under §1172.6—and told why he disbelieves Flint’s assertion that he was unaware that Rosa was a deputy sheriff.
Withheld Evidence
The evidence withheld from the defense was that one Glen Gosnell told the Long Beach police in two interviews that Gonzalez, a friend of his, confessed to him having murdered Rosa, and told him that Flint was not present at the time, but was up the street.
Lowenthal said in his order:
“Roughly fifteen months after the Gosnell interview, the State”—that is, Connolly—“presented the interview to Judge Cassani and inquired whether disclosure was required.”
The reference is to then-Los Angeles Superior Court Judge Joan Comparet-Cassani, now retired. Lowenthal continued:
“The State informed Judge Cassani that Flint, during a September 11, 2006 interview with detectives, admitted to being a lookout. Based on the assumption that Flint was being prosecuted as an aider and abettor who was not present in the driveway, Judge Cassani did not order disclosure. However, in contradistinction to the thesis upon which her order of nondisclosure was predicated, at trial the State argued that Flint was located in the driveway.”
Rejecting Flint’s allegation of intentional misconduct on Connolly’s part, Lowenthal set forth:
“Accusations of misconduct must be examined extremely carefully because, if established, they undermine the fundamental core of our judicial system—a search for truth. Here, the State did not flawlessly convey the status of Flint’s admission. But it appears that the mischaracterization was attributed to an imprecise recitation of Flint’s syntactically ambiguous language and was made inadvertently.”
Flint’s Knowledge
On the day of the murder, Rosa was in plain clothes and was not driving a marked Sheriff’s Department vehicle. Nonetheless, Lowenthal wrote, the Office of District Attorney “has proven, beyond a reasonable doubt, that Flint was aware, before the shooting, that Deputy Rosa was a peace officer who was engaged in the performance of her duties.”
Though off-duty, she was engaged in such duties because, under Penal Code §830.1, a deputy sheriff at all times has the status of a “peace officer,” he explained. There was credible testimony, Lowenthal noted, that Rosa was trained that, if she encountered criminal activity in progress when she was off-duty, to attempt to defuse the a situation by holding up her badge and announcing that she was an officer.
As Lowenthal sized it up:
“That Deputy Rosa acted in conformity with her training, and identified herself as a peace officer prior to being shot, is buttressed by the physical evidence. Deputy Rosa’s badge was found in the open trunk of her car. It was situated on top of a plastic bag. The most plausible scenario, for the badge to have been transported from the purse to its resting place, is that Deputy Rosa removed it from her purse, presented it to the assailants, and then dropped it after being shot.
“Deputy Rosa’s weapon was found, in the trunk, roughly three feet to the right of the badge. This positioning suggests that she presented the badge in her left hand while holding the gun in her right and, upon collapsing against the trunk, dropped both items into the trunk a shoulder’s width apart. The physical evidence indicates, beyond a reasonable doubt, that Deputy Rosa presented her badge and identified herself as a peace officer.”
Words of Praise
At a hearing on Thursday, at which he announced his ruling, Lowenthal had words of praise for the attorneys, investigating deputies, and Rosa.
He told defense lawyer Edmont T. Barrett of Diamond Springs—who last year persuaded Div. One of this district’s Court of Appeal to reverse then-Los Angeles Superior Court Judge Gary J. Ferrari’s 2020 denial of Flint’s resentencing petition:
“You did a phenomenal job. You were a zealous advocate. You got the initial declination of the petition reversed. You are a credit to the profession. Thank you.”
The judge said to Deputy District Attorney Mary Murray, who brought the undisclosed exculpatory information to his attention:
“…I’m extremely grateful to Ms. Murray for going above and beyond, following her hunch, and digging up discovery that wasn’t initially provided. By doing that, she has, and the District Attorney’s Office has, assured that this hearing is fair, and that the public can have confidence in its outcome.”
Tribute to Rosa
He commented:
“…Deputy Rosa was such a phenomenal person. She clearly had an indelibly positive impact on all whom she touched.”
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MARIA ROSA Slain sheriff’s deputy
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Sheriff Robert G. Luna was in attendance. Lowenthal said:
“I have the exhibits up here. And one of the exhibits is the badge….
“…[T]his badge symbolizes, eternally symbolizes, the sacrifice that she made for the community. And I would like her partner, Jenny Martin, with Sheriff Luna’s permission, to have this badge.”
He asked Luna if “that could be done”; the sheriff answered, “yes.”
Lowenthal said of Fitch:
“The gentleman is ordered transferred back to the state prison.”
Call for Legislation
Lowenthal—the son of Alan Lowenthal, a former member of the House of Representatives who earlier served in the state Senate and state Assembly—proposed in his written ruling that legislation be enacted to resurrect the felony-murder rule in situations where the victim, unbeknownst to a defendant who participated in a felony but had no murderous intent, happened to be a peace officer.
The judge wrote:
“Peace officers, who routinely must risk their lives to guard the safety o other persons, race unique dangers. When a police officer is killed, the foundation of our system of ordered liberty is subverted. In recognition thereof, the Legislature intended to preclude section 1172.6 from applying in any instance in which a peace officer is killed. However, the actual language of the ‘peace officer exception’ amendment, added to the bill in the frenetic final weeks of the legislative session, didn’t quite do that—it only exempted instances in which a defendant knew that the victim was a peace officer. The Legislature should now consider amending the statute to harmonize it with the version that was contemplated during its floor votes.”
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