Tehachapi News

Murder conviction overturned on appeal

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Appellate judges have ordered a retrial of the Tehachapi man who admitted that he pulled the trigger of the .22 caliber semi-automatic weapon that killed 37-year-old Michelle Cross — or the state will reduce his murder conviction to involuntary manslaughter.

Due to an “instructional error,” David Bruce Rosenberg, 40, could end up serving two to four years in prison, according to Lisa Green of the Kern County District Attorney's Office.

In May 2008, Rosenberg was sentenced to 15 years-to-life for second degree murder in the Sept. 19, 2007 slaying of Cross, a single mother of four. He is currently in Wasco State Prison.

“There's nothing to prevent us from retrying the case,” Green said. “Obviously we are very disappointed….Involuntary manslaughter carries a lot less time.”

Judges instructions may have prejudiced jury
Three appellate judges concluded that Kern County Superior Court Judge Michael Bush's failure to instruct the jury on a lesser charge of involuntary manslaughter was a prejudicial error.

Jurors should have been told that the difference between first- or second-degree homicide and involuntary manslaughter depends upon whether the defendant was aware of the risk to life that his or her actions created — and if they consciously disregarded that risk.

“The way this crime happened was an accident,” said Rosenberg's appeals attorney Wendy Lascher. “It was not an effort to shoot anyone; it was a shuffle over the gun.”

Had the jury received involuntary manslaughter instructions, it was “reasonably likely” it could have convicted Rosenberg of that, and not second degree murder, the appellate court found.

Lascher said the trial judge took too narrow a view of the “intentional act” requirement instead of providing the jury with instructions for each of the scenarios presented in witness testimony.

“My hunch is, the judge probably thought, 'I don't want this guy to get off lightly.'”

Sept. 19, 2007
Rosenberg claimed that William Logan, 33, instigated the struggle that caused him to fire the shot that hit Cross, a front seat passenger in Logan's car. Rosenberg said he carried the loaded gun for protection from “creepy” methamphetamine users known to frequent the Lokey Ranch crime scene, just off of Red Apple Road.

No charges were filed against Logan — or Jinny Pearce — who testified that Rosenberg threatened to cut off her hand if she didn't accompany him to the ranch that morning to help recover some items she and Logan had previously stolen from him.

Each of their accounts differs significantly. What they all agreed on is that instead of calling 911, a neighbor was summoned to drive a gunshot victim to the hospital.

Less than a mile from the crime scene, Cross died in the Walgreens parking lot while paramedics tried unsuccessfully to revive her. The driver, a young woman identified only as Brittany, sat on a curb crying hysterically. She did not testify at the trial.

An autopsy later said Michelle Cross died when a bullet pierced her arm, heart, both lungs and other vital organs.

A mother's worst nightmare
“This guy may not have meant to kill Michelle, but the ending is the same. She's still dead,” said the victim's mother, Marty McRiley.

McRiley learned of last week's appellate decision from the Tehachapi News on Friday, Sept. 25, just one week after the second anniversary of her daughter's death.
McRiley said she's never really been a fighter, but she plans to fight for a retrial.

“This is the first time I ever fought for something,” McRiley said, “because my daughter isn't here to do it for herself.”

She also hopes that her daughter's friends will contact the district attorney's office to demand that Rosenberg be re-tried, before he has a chance to harm someone else's children.

“Exactly how is it involuntary when you go out with a loaded gun?” McRiley asked.

McRiley said that an involuntary manslaughter conviction would reduce her daughter's death to an “ooops.”

Under the circumstances, McRiley's not quite sure what she'd like to say to Judge Bush.

“I'd tell him I miss my daughter. I miss my daughter every day. My daughter's kids miss their mother. Her daughter has nobody to turn to now except me,” McRiley said.