People v. Palaminos CA5

Filed 3/5/21 P. v. Palaminos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080169
Plaintiff and Respondent,
(Super. Ct. No. MCR025574)
v.

ANTONIO PRECIADO PALAMINOS, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-

* Before Detjen, Acting P.J., Peña, J. and Smith, J.
 Appointed counsel for defendant Antonio Preciado Palaminos asked this court to
review the record to determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief. Defendant
responded, contending, among other things, (1) the trial court applied the wrong standard
in determining whether defendant’s Penal Code section 1170.951 petition for
resentencing had made a prima facie showing, (2) defendant’s petition counsel provided
ineffective assistance by informing the trial court that defendant was not eligible for relief
under section 1170.95 because he had been convicted of “second degree Watson murder
and was not an accomplice,” and (3) defendant had a right to be present at the hearing on
his section 1170.95 petition. Finding no arguable error that would result in a disposition
more favorable to defendant, we affirm.

PROCEDURAL SUMMARY
On January 22, 2007, defendant was charged with five counts of murder (§ 187,
subd. (a); counts 1–5), five counts of gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (a); counts 6–10), hit and run (Veh. Code, § 20001, subd. (a); count 11),
two counts of vehicle theft (Veh. Code, § 10851, subd. (a); counts 12–13), attempted
vehicle theft (§ 664; Veh. Code, § 10851, subd. (a); count 14), grand theft (§ 487,
subd. (a); count 15), and driving without a license (Veh. Code, § 12500, subd. (a);
count 16). As to the five vehicular manslaughter counts, the information also alleged
defendant had fled the scene (Veh. Code, § 20001, subd. (c)). (See People v. Palaminos
(April 30, 2009, F054625) [nonpub. opn.] at p. 2 (Palaminos).2

1 All statutory references are to the Penal Code unless otherwise noted.
2 We take judicial notice of the record and our prior opinion in Palaminos, supra,
F054625.

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 Following a court trial, the court found defendant guilty of all charges and found
the enhancement allegations true. The court sentenced defendant to 75 years to life
(five consecutive terms of 15 years to life) on the murder counts (counts 1–5), plus a
determinate term of four years on the theft and hit-and-run counts. The court stayed
five 6-year terms for the vehicular manslaughter counts and five 5-year enhancements for
fleeing the scene. (See Palaminos, supra, F054625, at p. 2.)
In 2009, we affirmed, finding, for one thing, sufficient evidence of implied malice
to support defendant’s second degree murder convictions on counts 1 through 5.
(See Palaminos, supra, F054625, at pp. 13–14.)
Nearly 10 years later, on January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) went into effect. It amended sections 188 and 189,
narrowed the scope of culpability for murder, and added section 1170.95. (See
Stats. 2018, ch. 1015, §§ 1–4.)
On June 24, 2019, defendant filed a petition for resentencing pursuant to the newly
enacted section 1170.95.
On September 26, 2019, the trial court summarily denied the petition because it
concluded defendant was the actual killer.
On October 11, 2019, defendant filed a notice of appeal.

FACTS

“On July 3, 2006, 36-year-old Celia Berber and her family were
visiting Celia’s mother in Modesto. They left Modesto in their Toyota at
about noon and headed for home in Lindsay. Celia was driving and her
husband, Balentin Llerenas, sat in the front passenger seat. Their three
children, sixteen-year-old Sulema Alvarez, 10-year-old Andoney Llerenas
and four-year-old Brian Llerenas, were in the back seat.

“A., an equipment driver with a special license to pull heavy
equipment, decided to stop by his father’s house on Road 29. A. was
driving a Chevy heavy-duty pickup truck pulling a bulldozer on a trailer
(together, the rig). A. was the only person who drove the truck, and he had
attached the trailer and bulldozer himself. The trailer was a ‘fifth wheel’ or

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gooseneck trailer that sat over the truck’s rear axle. The bulldozer was tied
down to the trailer with binders and chains in both front and back, as
required by law. When the truck was pulling weight, it was harder to stop,
but the brakes on the truck and the trailer were regularly maintained and
serviced. That day, A. had set the truck’s brake controller to 7.5 out of 10
to accommodate the load he was pulling and the brakes were working well
with the load.

“Shortly before A. arrived at his father’s house, his relative, B., was
outside the house. B. noticed a man across the street, about 45 feet away,
looking into the neighbor’s car. The man was thin and in his twenties. He
was wearing a dark shirt and pants and was carrying some type of black
bag. B. paid little attention because she thought the man was one of the
neighbor’s friends. She went back inside the house. Later, the neighbor’s
car was found in disarray.

“When A. arrived at his father’s house, he parked the rig on the side
of Road 29. He left the keys in the ashtray and the doors unlocked. He
went in to check on his father and returned in 10 minutes to find the rig
gone. He had not given anyone permission to take it. He looked down the
road and saw the rig in the distance.

“C., a contractor in heavy equipment, was driving a full-sized pickup
truck on Road 29 when he saw the rig about one-half mile away and
approaching in the wrong lane. The rig rode on the shoulder of the wrong
lane, crossed back to the other side of the road, and then almost ran off the
shoulder on that side. The trailer was ‘sliding.’ Dust from the shoulder
flew up from the back of the truck and the trailer. The rig then traveled in
the proper lane as it approached C.’s truck. C. had slowed to about
25 miles per hour as he watched the rig. The rig again drifted completely
into the wrong lane, traveling at a ‘pretty fast pace,’ and the vehicles were
about one hundred yards apart. C. took evasive action, driving his truck
entirely off the road and onto the shoulder. If he had not done so, the rig
would have hit him head-on. As he drove off the road, C. thought the truck
was going to hit his door panel directly, but then the truck drifted back into
its lane, and C. thought the trailer and bulldozer would sideswipe his truck.
C. looked directly at defendant because C. wondered if he knew the driver
and if the driver even saw him there. Defendant’s eyes were open wide and
he ‘looked like he was absolutely scared to death.’ The trailer did not
swerve, but it missed C.’s truck by about 12 inches. C. was grateful he had
not been killed. C. continued to watch the rig as it passed and he saw no
brake lights. He also heard no sound of the trailer braking, a distinctive

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sound with which he was very familiar. He watched the rig in his rearview
mirror until it went over a hill and out of sight.

“D., a painting contractor, was painting the interior of a building on
Road 29. At about 1:00 p.m., he went out to his van to start cleaning up.
As he stood in the parking lot, he noticed the rig traveling at a ‘pretty good
rate of speed’ on Road 29. He was concerned because he knew there was a
stop sign up ahead at Avenue 12. After the rig went by, D. heard brakes
lock up, followed by a crash. He looked up from his van and saw a car in
flames. D. called 911 and drove toward the crash.

“Defendant had driven through the stop sign. The truck collided
with the Toyota carrying Celia and her family and pushed it into the bridge
rail. As the truck ran into the bridge rail, the trailer jackknifed and hit the
car a second time. The car caught fire.

“E. was driving on Avenue 12, preparing to turn, when he suddenly
saw the rig pushing the Toyota up against the rail. E. parked in front of
D.’s van and got out. He saw defendant running away from the scene and
in his direction. Defendant looked anxious and scared. E. told him he
should go back to the accident. Defendant got angry and asked E. who he
was and why he (defendant) had to answer to him. Defendant took off his
shirt and cleaned some blood off his arms and shoulders. He said
something nonsensical about his sister being there and he continued past E.

“E. ran to the scene and saw Celia on the ground beside the Toyota,
which was in flames. E. and two other men pulled her away from the car.
E. saw four burning figures still inside. Celia asked for water and someone
poured water on her face. Celia told them her name, and the name and
telephone number of her mother.

“D. saw defendant flag down a pickup truck with his shirt.
Defendant got in the truck and it drove away.

“When F., a paramedic, arrived, the Toyota was still on fire and
Celia was on the pavement. Celia was completely alert and oriented. She
was aware of what was going on. She had a broken ankle and arm, and
about 70 or 75 percent of her body had second and third degree burns. She
told F. that ‘some bastard had hit her with the … white truck and that he
took off running and that the car caught on fire and everybody was still
inside.’ She said the truck had cut in front of her. She told F. her name and
told her to go help her children and husband. She said she could not
believe what was happening; she was aware that her husband and children
were still in the burning car. She kept telling F. not to help her, but to go

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help her children. She told F. she wanted to die. F. transported Celia to
University Medical Center in Fresno.

“Celia’s husband and three children, who had incurred various
injuries in the collision, burned to death in the car. Later, Celia also died
from her burns.

“An officer arrived to find the Toyota crushed against the rail and
burned. Four burned figures remained inside. Celia had been taken to the
hospital. A black T-shirt was hanging on the gooseneck portion of the
trailer. In the debris field around the truck, the officer found a black CD
case and various papers in the name of the neighbor who lived on Road 29.
The papers included the neighbor’s car registration.

“The accident investigation team determined that the truck hit the
Toyota and pushed it sideways in the direction the truck was traveling and
into the bridge rail. The truck was rated to carry 22,000 pounds and it was
8,467 pounds overweight at the time. This had a detrimental effect on its
braking ability, as though the rig had been going 10 miles per hour faster
than it was, but there was still ample distance (751 feet) for the rig to stop
between the stop ahead sign and the stop sign. The approach to the sign
was inclined and slightly curved. If defendant had merely taken his foot off
the throttle at that point, the rig would likely have come to a stop at the
sign.

“The speed limit on Road 29 was 55 miles per hour. Two digital
security cameras on a nearby business allowed officers to calculate
defendant’s speed on Road 29 as between 61 and 65 miles per hour.

“The sensing and diagnostic module in the truck revealed that about
five seconds before the air bags were deployed, the truck was going
61 miles per hour and the brakes were not in use. About three seconds
before deployment, the truck was going 52 miles per hour and the brakes
were activated. About two seconds before deployment, the truck was going
44 miles per hour and the brakes were still activated. Thus, defendant had
attempted to stop the truck.

“At about 6:20 p.m. on the same day, an officer was dispatched to
Mearl’s Market. A male had reported being assaulted, but had hung up on
the dispatcher without giving his name or any other information. When the
officer entered the market, he could locate no victim and the clerk was
aware of none. The officer exited and saw a blue Chevy van parked
nearby. Defendant was sitting in the driver’s seat. The officer asked him if
he knew of any assault victims in the vicinity. Defendant said he had seen

6.
the victims walking down a particular street. The officer searched for the
victims, then returned to the blue van where defendant was still sitting.
Defendant was looking around inside the van. He was sweating and
appeared nervous. He smelled strongly of alcohol, which was consistent
with having consumed alcohol within the last hour or two. Defendant
never told the officer he had been attacked, that he was running from
anyone or that he was scared. The officer noticed some wires hanging
underneath the steering column area and he thought defendant was trying to
hot-wire the van.

“The officer recalled being briefed on a hit-and-run accident earlier
in the day. The suspect had tattoos, scratches on his arms and was wearing
Adidas shoes. The officer observed tattoos on defendant and asked him to
lift up his sleeve. Defendant had long scratches on his left arm. When
defendant removed his shirt, the officer saw a bruise on his neck and left
chest area, which the officer recognized as the type sustained when wearing
a seat belt during a vehicle collision. Defendant was wearing Adidas shoes.
The officer arrested defendant, but did not inform him he was suspected of
being involved in an accident in which people had died.

“F., the paramedic, was dispatched to Mearl’s Market regarding an
assault. When she arrived, two or more officers were present. F.
administered medical aid to defendant, who claimed he had been beaten up
by three men. He had multiple abrasions and bruising to his arms and
chest. He had an abrasion to the left clavicle that was consistent with a seat
belt mark and an automobile accident. Defendant was very rude. He made
several remarks, even though no one was speaking to him. He said he did
not understand why he was under arrest because he had not killed anyone
and had not done anything. Defendant was slurring his speech, he smelled
of alcohol and his eyes were red and glossy. F. asked him if he had been
drinking or taking drugs, and he said he had not. Defendant was
transported to the hospital by ambulance.

“An officer also observed that defendant smelled of alcohol and was
unsteady on his feet. The officer believed defendant was under the
influence of alcohol.

“An officer rode along in the ambulance. Defendant was smiling
and appeared to be under the influence of alcohol. The officer saw no sign
that defendant was under the influence of a stimulant or a narcotic. When
defendant was informed at the hospital about the death of the three children
and their father, he smiled and laughed.

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 “A nurse in the emergency room spoke Spanish and was able to
translate for the other nurses and the officers. When the nurse spoke to
defendant, he told her that ‘he had four tall beers, the 40 ounces, and that he
had used meth that morning.’

“On cross-examination, the nurse explained more specifically that
she asked defendant ‘[D]o you drink today[?]’ and ‘Do you use drugs[?]’
Defendant said he drank four tall beers—his actual words were ‘ “Cuatro
cervezas de la botella grande” ’—and used methamphetamine. The nurse
could not recall if she had asked him when he drank the beers. She did ask
him when he used methamphetamine and he said he had used it that
morning.

“A nurse’s note in the medical records stated that defendant
‘admit[ted] to drinking and methamphetamine use today[.] $20 bag of
meth ingested by smoking and 4 tall beers[.]’

“Defendant’s blood was drawn at 9:17 p.m. It contained
0.14 percent alcohol and 100 nanograms methamphetamine per milliliter.

“A criminalist testified as an expert on the effects of alcohol. The
prosecutor presented the expert with a hypothetical question regarding a
150-pound male who started drinking at approximately 4:00 a.m. and
finished drinking at approximately 11:00 a.m., consumed four 40-ounce
malt liquors at six percent alcohol, and had a 0.14 percent blood-alcohol
level at 9:17 p.m. The prosecutor asked the expert for his opinion
regarding the male’s blood-alcohol percentage at 1:00 p.m. The expert
worked back from the 9:17 p.m. percentage and opined that the percentage
at 1:00 p.m. would have been between 0.14 and 0.31. The prosecutor then
asked the expert to consider the same question, but without considering the
9:17 p.m. percentage. The expert worked forward from the alcohol
consumed and answered that the percentage at 1:00 p.m. would have been
0.18. The prosecutor asked the expert variations on these hypothetical
questions.

“A toxicologist testified that defendant’s blood would have
contained about 200 nanograms per milliliter at about 1:00 p.m. The
toxicologist testified that methamphetamine can impair a person’s ability to
drive, but the toxicologist could not form an opinion regarding whether
defendant was impaired at the time he was driving because the toxicologist
did not know when defendant ingested the methamphetamine, how much
he ingested, how often he ingested it or any facts regarding his physical or
mental performance that day. The toxicologist explained that the effect of
methamphetamine in general is ‘to rev your body up for action [like] the

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fight or flight reaction ….’ It can make a person more alert and can
counteract some of the effects of a central nervous depressant, such as
alcohol.

“A few months before the collision, on May 11, 2006, at about
11:10 p.m., an officer stopped defendant after witnessing him back a van
into the wrong lane of traffic. The officer observed that defendant had a
strong odor of alcohol, slurred speech and red, watery eyes. Furthermore,
defendant did not have a license. He said he had consumed two beers at
about 6:30 that evening. The officer arrested defendant for driving under
the influence and took him to jail.

“Defense Evidence

“Defendant testified that on July 3, 2006, he drank three 16-ounce
King Cobra beers between about 8:00 and 9:00 a.m. He explained he was
carrying a black CD case when he realized he was being followed by
four gang members. He ran to the truck and drove away to save his life.
He tried to brake before he got to the curve ahead of the stop sign, but the
brakes did not work.

“After the collision, he ran to where he saw a friend, who drove him
to a store and gave him ten dollars to buy beer. He bought two 40-ounce
King Cobra beers and began to drink them. He saw the four gang members
again and called the police to report that he was being beat up. He hid
inside the van so the men would not find him. He tried to start the van so
he could flee if necessary.

“On cross-examination, defendant admitted not having a driver’s
license. He did not remember telling officers that he did stupid things when
he was drunk.

“Rebuttal Evidence

“An officer testified that when he interviewed defendant after his
arrest, defendant first claimed that a friend named Jose had been driving the
truck. Then defendant admitted crashing the truck. He admitted he was
drunk at the time of the crash and he said he did stupid things when he was
drunk. He said he drank four 16-ounce beers the morning of the collision.
He said he got in the truck and adjusted the radio to his favorite station.
Prior to the collision, he was traveling approximately 65 miles per hour.
He did not mention being chased by anyone. He said he braked late going
into the curve. After the collision, he was afraid of the fire and feared the

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 truck would explode.” (Palaminos, supra, F054625, at pp. 2–10,
fns. omitted.)
DISCUSSION
The essence of defendant’s numerous arguments is that the trial court erred when
it denied his section 1170.95 petition. He claims he is eligible for relief under the statute
because he was convicted under a natural and probable consequences theory that is no
longer viable after Senate Bill 1437. We disagree, and conclude defendant was ineligible
as a matter of law.
I. Implied Malice Second Degree Murder
In our 2009 opinion in this case, we explained: “ ‘Murder is the unlawful killing
of a human being … with malice aforethought.’ [Citation.] ‘Such malice may be express
or implied. It is express when there is manifested a deliberate intention unlawfully to
take away the life of a fellow creature. It is implied, when no considerable provocation
appears, or when the circumstances attending the killing show an abandoned and
malignant heart.’ [Citation.] Stated another way, ‘[m]alice is implied when the killing is
proximately caused by “ ‘an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows that his conduct endangers
the life of another and who acts with conscious disregard for life.’ ” [Citation.] In short,
implied malice requires a defendant’s awareness of engaging in conduct that endangers
the life of another—no more, and no less.’ (People v. Knoller (2007) 41 Cal.4th 139,
143; see also People v. Taylor (2004) 32 Cal.4th 863, 868.) This is a subjective standard:
the defendant must have actually appreciated the risk involved. (People v. Watson
(1981) 30 Cal.3d 290, 297.) [¶] We conclude there was … sufficient evidence on the
record at the end of the prosecution’s case to support the finding of implied malice.
Ample evidence established defendant was put on notice that his driving was dangerous
to the lives of those around him and he continued to drive despite his awareness of the
risk he posed. He drank alcohol and ingested methamphetamine that morning. He

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previously had been arrested for driving under the influence. He drove a stolen truck
attached to a piece of heavy equipment, the handling and braking of which would
naturally be different than an ordinary vehicle. He not only had no special license to
operate the vehicle, he had no driver’s license at all. He was in fact unable to control the
rig, to the point that he could not keep it in the correct lane or even on the road. He
nearly collided head-on with an oncoming driver, who had to take evasive action to
prevent a potentially fatal collision. Defendant’s fearful expression as he drove indicated
he was aware of his inability to drive the rig safely. But, instead of slowing down or
stopping the rig, he proceeded at a high speed, knowing he was unable to control the rig.
He finally attempted to brake, but it was too late. He ran the stop sign and killed an
entire family. We have no reservations regarding the quantum of evidence supporting the
five murder convictions in this case.” (Palaminos, supra, F054625, at pp. 13–14.)
II. Senate Bill 1437
In 2018, the Legislature enacted Senate Bill 1437 after determining there was
further “need for statutory changes to more equitably sentence offenders in accordance
with their involvement in homicides.” (Stats. 2018, ch. 1015, § l, subd. (b).) Senate
Bill 1437 changed murder liability under two theories—(1) the felony-murder rule and
(2) the natural and probable consequences doctrine—through two statutory amendments.
First, “[u]nder the felony-murder rule as it existed prior to Senate Bill 1437, a
defendant who intended to commit a specified felony could be convicted of murder for a
killing during the felony, or attempted felony, without further examination of his or her
mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) Senate
Bill 1437 amended section 189 to provide that a defendant who was not the actual killer
and did not have an intent to kill would not be liable for felony murder unless he was a
major participant in the underlying felony and acted with reckless indifference to human
life. (§ 189, subd. (e), added by Stats. 2018, ch. 1015, § 3.) Specifically, under the new
law, “[a] participant in the perpetration or attempted perpetration of a felony … in which

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a death occurs is liable for murder only if … : [¶] (1) [t]he person was the actual killer[,]
[¶] (2) [t]he person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree[, or] [¶] (3) [t]he person was a major participant
in the underlying felony and acted with reckless indifference to human life ….” (Ibid.)
Second, before Senate Bill 1437, “malice could be imputed to an aider and abettor
under the natural and probable consequences doctrine.” (People v. Roldan (2020)
56 Cal.App.5th 997, 1002 (Roldan).) “When an accomplice aid[ed] and abet[ted] a
crime, the accomplice [was] culpable for both that crime and any other offense
committed that [was] the natural and probable consequence of the aided and abetted
crime. Natural and probable consequences liability [could] be imposed even if the
accomplice did not intend the additional offense.” (People v. Gentile (2020) 10 Cal.5th
830, 838 (Gentile).) Thus, “an aider and abettor who lacked express malice but merely
engaged in activity of which murder was a natural and probable consequence could have
implied malice imputed to him or her, and could therefore be convicted of second degree
murder.” (Roldan, at p. 1002.) “[T]he natural and probable consequences doctrine
rendered a defendant liable for murder if he or she aided and abetted the commission of a
criminal act (a target offense), and a principal in the target offense committed murder
(a nontarget offense) that, even if unintended, was a natural and probable consequence of
the target offense.” (People v. Lamoureux, supra, 42 Cal.App.5th at p. 248.) “[T]o
amend the natural and probable consequences doctrine, Senate Bill 1437 added
section 188, subdivision (a)(3) … : ‘Except [for felony-murder liability] as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.’ ” (Gentile, at pp. 842–843; § 188, subd. (a)(3),
added by Stats. 2018, ch. 1015, § 2.)

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 Senate Bill 1437 also added section 1170.95 to provide a postjudgment procedure
by which a defendant “convicted of felony murder or murder under a natural and
probable consequences theory” may petition the trial court to have the “murder
conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95,
subd. (a), added by Stats. 2018, ch. 1015, § 4.)
Once a section 1170.95 petition is filed, there follows a multi-step process by
which the trial court first determines whether the petition is facially complete. “[T]he
person must file a petition with the trial court that sentenced the petitioner declaring,
among other things, that the petitioner ‘could not be convicted of first or second degree
murder because of changes to Section 188 or 189.’ (§ 1170.95, subd. (a)(3); see
§ 1170.95, subd. (b)(1)(A).) Then, the trial court must ‘review the petition and determine
if the petitioner has made a prima facie showing that the petitioner falls within the
provisions of th[e] section.’ (§ 1170.95, subd. (c).)” (Gentile, supra, 10 Cal.5th at
p. 853.) To do so, the court must determine whether “(1) [a] complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and probable consequences
doctrine[,] [¶] (2) [t]he petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[, and] [¶] (3) [t]he petitioner could not
be convicted of first or second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a); id., subd. (c).) If the court
determines at this stage the petitioner is ineligible for relief as a matter of law, the
petition is denied; if not, the court proceeds to the next step, in which “the trial court must
issue an order to show cause and hold a hearing to determine whether to vacate the
murder conviction and to resentence the petitioner on any remaining counts. (§ 1170.95,
subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95, subd. (d)(3).) ‘The

13.
prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ ” (Gentile, at p. 853.)
III. Analysis
Here, defendant claims that “the [natural and probable consequences] theory for
the act necessary for implied malice no longer exists due to the changes to … section 188
brought about by [Senate Bill] 1437.” He explains that “section 188 changed the [natural
and probable consequences] theory of implied malice murder and the [natural and
probable consequences] doctrine of aiding and abetting in that it no longer allows for
malice to be imputed to an accused based solely upon their participation in a criminal act.
The changes to … section 188 did not eliminate implied malice, it only eliminates
implied malice based solely upon a criminal act. Malice may still be implied, as long as
there is sufficient evidence of it, aside from the underlying criminal act. [S]ection 188
now restricts an implied malice theory of murder to specifically exclude imputed malice
solely from a criminal act. The changes to … section 188 were designed to ameliorate
implied malice second degree murder convictions, such as [defendant’s], whereby one
was convicted of murder due solely to having committed a criminal act. In [defendant’s]
case, he was convicted of murder based upon implied malice imputed to him from the
criminal act of driving while intoxicated. The Legislature’s intent in enacting [Senate
Bill] 1437 was to, in-effect, re-align an offender’s punishment when convicted of murder
in these limited situations where malice has been imputed from a criminal act, to be more
in line with their culpability. In [defendant’s] case, he should now be resentenced on his
murder convictions to vehicular manslaughter ….”
Second degree murder based on implied malice was not eliminated by Senate
Bill 1437, which “removed the natural and probable consequences doctrine as a basis for
a murder conviction only insofar as it applied to aider and abettor liability.” (Roldan,
supra, 56 Cal.App.5th at p. 1004.) The natural and probable consequences doctrine of
aiding and abetting and the definition of implied malice are sometimes confused because

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both contain similar language regarding a “natural consequence,” but they are “distinctly
different concepts.” (People v. Soto (2020) 51 Cal.App.5th 1043, 1056–1057 (Soto),
review granted Sept. 23, 2020, S263939.)
“Implied malice is a mental state for the commission of the crime of second degree
murder, either by the principal or as an aider and abettor … to murder. This distinction
between direct aiding and abetting liability and natural and probable consequences
doctrine is critical because potential relief under section 1170.95 extends only to those
convicted of murder by operation of the natural and probable consequence doctrine or of
felony murder. (See § 1170.95, subd. (a) [‘A person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition with the
court that sentenced the petitioner to have the petitioner’s murder convicted vacated.’].)
Senate Bill No. 1437 changed the circumstances under which a person could be convicted
of murder without a showing of malice, but it did not exclude from liability persons
convicted of murder for acting with implied malice.” (Soto, supra, 51 Cal.App.5th at
pp. 1056–1057, italics added, fn. omitted.) This theory of murder survived the enactment
of Senate Bill 1437.
“For implied malice murder, [the requisite] intent is that the perpetrator ‘ “knows
that his conduct endangers the life of another and … acts with conscious disregard for
life.” ’ [Citation.] The ‘physical component’ required for implied malice murder ‘is
satisfied by the performance of “an act, the natural consequences of which are dangerous
to life.” ’ [Citation.] [¶] The natural and probable consequence doctrine, by contrast, is
a theory of liability by which an aider and abettor who intends to aid a less serious crime
can be convicted of a greater crime. This doctrine comes into play when ‘an accomplice
assists or encourages a confederate to commit one crime, and the confederate commits
another, more serious crime (the nontarget offense).’ [Citation.] Applying the natural
and probable consequences doctrine, ‘a defendant may be held criminally responsible as
an accomplice not only for the crime he or she intended to aid and abet (the target crime),

15.
but also for any other crime that is the “natural and probable consequence” of the target
crime.’ [Citation.] Unlike aiding and abetting implied malice murder, which requires the
aider and abettor to (at least) share the mental state of the actual perpetrator of implied
malice murder, ‘ “aider and abettor culpability under the natural and probable
consequences doctrine is not premised upon the intention of the aider and abettor to
commit the nontarget offense [e.g., murder] because the nontarget offense was not
intended at all.” ’ ” (Soto, supra, 51 Cal.App.5th at p. 1058.)
The trial court in this case did not err in denying defendant’s section 1170.95
petition for resentencing. The court correctly found, as a matter of law, that defendant
was ineligible for relief. As our prior opinion demonstrates, defendant was the sole
perpetrator and he was not charged or convicted of felony murder or murder under the
natural and probable consequences doctrine directed at accomplice liability. (See
§ 1170.95, subd. (a)(1), (2); People v. Tarkington (2020) 49 Cal.App.5th 892, 899,
review granted Aug. 12, 2020, S263219 [the defendant was ineligible as a matter of law
where the jury was not instructed on natural and probable consequences doctrine or
felony-murder rule]; People v. Edwards (2020) 48 Cal.App.5th 666, 674, review granted
July 8, 2020, S262481 [the defendant “could not meet the statutory prerequisites for even
filing a section 1170.95 petition because he was not charged or convicted of second
degree felony murder or murder under the natural or probable consequences doctrine
directed at accomplice liability”]; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1157
[the defendant did not make the requisite prima facie showing that he was convicted of
murder under a natural and probable consequences theory].) The record demonstrated
the victims died as the result of the injuries and burns sustained when defendant drove the
rig while impaired by alcohol. Defendant was not alleged to have aided and abetted
another and was not convicted under either a felony murder or a natural and probable
consequences theory. He alone caused the fatal collision that killed an entire family and
section 1170.95 provides him no relief. Further, defendant’s claims that the trial court

16.
relied on disputed facts and applied the incorrect standard to consideration of his petition
are unmeritorious.
Petition counsel’s concession at the hearing that defendant was the actual killer
and therefore ineligible was appropriate and correct.3 Further, even if error, it was
harmless because defendant was ineligible as a matter of law and the concession made no
difference. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956)
46 Cal.2d 818, 836.) Similarly, defendant’s absence from the hearing, if error, was
harmless because defendant was ineligible as a matter of law and his presence would
have made no difference. (See Chapman v. California, at p. 24; People v. Watson,
at p. 836.)
In sum, we have reviewed the record and find no arguable issues on appeal.
DISPOSITION
We take judicial notice of the record and our prior opinion in Palaminos, supra,
F054625. The order denying defendant’s section 1170.95 petition for resentencing is
affirmed.

3 Petition counsel had also been defense counsel at trial.

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