Filed 6/16/21 P. v. Maldonado CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B308783
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA045406)
v.
RENE MALDONADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Jonathan E. Demson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
We affirm the trial court’s order summarily denying
petitioner Rene Maldonado’s Penal Code section 1170.95 petition
for resentencing.1 The trial court correctly concluded that
Maldonado was ineligible for relief as a matter of law for the
following independent reasons: (1) Maldonado was not convicted
on a theory of felony murder or natural and probable
consequences; and (2) Maldonado was convicted of attempted
murder. Section 1170.95 does not provide retroactive relief for
defendants convicted of attempted murder. We further hold that
the trial court did not err in not appointing counsel to represent
Maldonado because Maldonado was categorically ineligible for
relief.
BACKGROUND
Maldonado, a member of the Pacoima Project Boys,
attempted to kill Adam Smith, a member of the Pacoima 13
street gang and Smith’s girlfriend. (People v. Maldonado
(Jan. 22, 2007, B18992) [nonpub opn.] (Maldonado I).) A jury
convicted Maldonado of two counts of attempted first degree
murder and two counts of being a felon in possession of a firearm.
(People v. Maldonado (July 30, 2019, B292272) [nonpub. opn.]
(Maldonado II).) The jury found that the attempted murders
were committed willfully, deliberately, and with premeditation,
and that a principal personally and intentionally used and
discharged a firearm within the meaning of section 12022.53,
subdivisions (b), (c), and (e)(1). (Ibid.) The jury also found that
Maldonado committed his crimes for the benefit of a criminal
street gang. (Ibid.) Maldonado admitted a prior serious or
1 All statutory citations are to the Penal Code.
2
violent felony conviction and a prior conviction within the
meaning of section 667.5, subdivision (b). (Ibid.)
Following Maldonado’s first appeal, this court reversed one
conviction for being a felon in possession of a firearm.
(Maldonado II, supra, B292272.) Following remand from
Maldonado’s second appeal, the trial court struck the section
667.5, subdivision (b) enhancement.
1. Petition for resentencing
On July 31, 2020, Maldonado filed a petition for
resentencing pursuant to section 1170.95. Maldonado stated
that he “was convicted of attempted murder under the aiding and
abetting theory for vicarious liability of the actions of his
co-defendant.” Maldonado also stated that he “was not the actual
shooter” and that he was eligible for resentencing. Maldonado
contended section 1170.95 permits resentencing on convictions of
attempted murder.
2. Order denying petition
The trial court denied Maldonado’s petition without
appointing counsel and without holding a hearing. The court
concluded that Maldonado was not eligible for relief as a matter
of law. The trial court explained that Maldonado’s criminal trial
did not include theories of felony murder or natural and probable
consequences. The trial court also reasoned that section 1170.95
resentencing relief does not extend to convictions for attempted
murder.
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DISCUSSION
A. Section 1170.95 Provides Potential Resentencing of
Persons Previously Convicted of Murder Based on a
Felony Murder or Natural and Probable
Consequence Theory
To be convicted of murder, a jury must ordinarily find that
the defendant acted with the requisite mental state, known as
“ ‘malice aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172,
1181, quoting § 187, subd. (a).) Until recently, the felony murder
rule provided an exception that made “a killing while committing
certain felonies murder without the necessity of further
examining the defendant’s mental state.” (Chun, at p. 1182.)
Also, until recently, the natural and probable consequences
doctrine permitted a “ ‘ “person who knowingly aids and abets
[the] criminal conduct [of another person] is guilty of not only the
intended crime . . . but also of any other crime the [other person]
actually commits . . . that is a natural and probable consequence
of the intended crime.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155,
161; see also People v. Gentile (2020) 10 Cal.5th 830, 845–846.)
Senate Bill No. 1437 (2017–2018 Reg. Sess.), which became
effective January 1, 2019, raised the level of culpability required
for murder liability to be imposed under a felony murder or
natural and probable consequences theory. (See Stats. 2018,
ch. 1015, § 1, subd. (f).) The bill amended section 189, which
defines the degrees of murder, to limit murder liability based on
felony murder or a natural and probable consequences theory for
a person who: (1) was the actual killer; (2) though not the actual
killer, acted “with the intent to kill” and “aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer” in the commission of first degree murder; or
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(3) was “a major participant in the underlying felony and acted
with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.” (§ 189, subd. (e); People v.
Verdugo (2020) 44 Cal.App.5th 320, 326, review granted Mar. 18,
2020, S260493.) Senate Bill No. 1437 also amended the
definition of malice in section 188 to provide that “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); Verdugo, supra,
at p. 326, review granted.)
In addition to amending sections 188 and 189, the
Legislature enacted section 1170.95. (Stats. 2018, ch. 1015, § 4,
eff. Jan. 1, 2019.) That provision authorizes a person convicted of
felony murder or murder under a natural and probable
consequences theory to file with the sentencing court a petition to
vacate the conviction and be resentenced. (§ 1170.95, subd. (a).)
Senate Bill No. 1437 did not alter liability for murder based on
direct aiding and abetting. (See People v. Gentile, supra,
10 Cal.5th at pp. 843–844.) If the trial court did not instruct the
jury on murder liability based on a theory of felony murder or
natural and probable consequences, the petitioner cannot, as a
matter of law, demonstrate he or she is eligible for section
1170.95 relief. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055,
review granted Sept. 23, 2020, S263939.)
B. Maldonado is Ineligible For Relief Because He Was
Convicted as a Direct Aider and Abettor
Maldonado was not convicted based on a no longer viable
theory of murder. As Maldonado recognizes, there is no crime of
attempted felony murder. (People v. Billa (2003) 31 Cal.4th 1064,
1071, fn. 4.) Although Maldonado argues that he could have been
5
convicted based on a natural and probable consequences theory,
the record does not support his contention.
After giving the introductory instruction on aiding and
abetting,2 the trial court instructed the jury that to convict
Maldonado as an aider and abettor, the jury had to find
Maldonado harbored the intent to aid and abet the attempted
murders.3 The trial court did not instruct Maldonado’s jury with
2 The trial court instructed the jury with CALCRIM
No. 400 on general principles of aiding and abetting as follows:
“A person may be guilty of a crime in two ways. One, he may
have directly committed the crime. Two, he may have aided and
abetted someone else, who committed the crime. In these
instructions, I will call that other person the ‘perpetrator.’ A
person is equally guilty of the crime whether he committed it
personally or aided and abetted the perpetrator who committed
it.
“Under some specific circumstances, if the evidence
establishes aiding and abetting of one crime, a person may also
be found guilty of other crimes that occurred during the
commission of the first crime.”
3 The trial court instructed the jury with CALCRIM
No. 401 as follows: “To prove that the defendant is guilty of a
crime based on aiding and abetting that crime, the People must
prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to
commit the crime;
“3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing
the crime;
“AND
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CALCRIM Nos. 402 and 403, which define the natural and
probable consequences doctrine and identify target and nontarget
offenses.
Maldonado correctly points out that the instruction
introducing aiding and abetting contains the following language:
“Under some specific circumstances, if the evidence establishes
aiding and abetting of one crime, a person may also be found
guilty of other crimes that occurred during the commission of the
first crime.” That language, however, was irrelevant to his case
because the trial court did not instruct the jury on the natural
and probable consequences theory of aiding and abetting. The
instructions, taken as a whole, simply did not permit the jury to
find Maldonado guilty on a theory of natural and probable
consequences because the trial court instructed the jury that it
could not convict Maldonado as an aider and abettor unless the
jury concluded that Maldonado shared the perpetrator’s intent.
Another instruction required the People prove beyond a
reasonable doubt that “[w]hen the defendant acted” he acted with
malice aforethought. The court further instructed the jury that
malice aforethought required intent to kill.
Because Maldonado was convicted based on his own state
of mind, not on any theory of imputed malice, his conviction
remains valid despite changes to sections 188 and 189.
Maldonado is ineligible for resentencing under section 1170.95 as
“4. The defendant’s words or conduct did in fact aid and
abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he knows of the
perpetrator’s unlawful purpose and he specifically intends to, and
does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.”
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a matter of law. (People v. Verdugo, supra, 44 Cal.App.5th at
p. 330 [“The record of conviction might also include other
information that establishes the petitioner is ineligible for relief
as a matter of law because he or she was convicted on a ground
that remains valid notwithstanding Senate Bill 1437’s
amendments to sections 188 and 189 . . . .”].)
C. Section 1170.95 Does Not Encompass Attempted
Murder
Although there are cases prospectively applying the new
murder definitions in sections 188 and 189 to attempted murder,4
we have found no case holding that a defendant convicted of
attempted murder is eligible for resentencing under section
1170.95. (See, e.g., People v. Lopez (2019) 38 Cal.App.5th 1087,
1104–1107, review granted Nov. 13, 2019, S258175; People v.
Larios, supra, 42 Cal.App.5th at pp. 969–970, review granted;
People v. Love (2020) 55 Cal.App.5th 273, 292, review granted
Dec. 16, 2020, S265445; People v. Alaybue (2020) 51 Cal.App.5th
207, 222–223.) The plain language of the statute permits
resentencing for murder only. It states “[a] person convicted of
felony murder or murder under a natural and probable
consequences theory may file a petition” for resentencing.
(§ 1170.95, subd. (a).) Further, the petitioner must have been
“convicted of first degree or second degree murder . . . .”
4 See, e.g., People v. Larios (2019) 42 Cal.App.5th 956,
964–968, review granted February 26, 2020, S259983; People v.
Medrano (2019) 42 Cal.App.5th 1001, 1012–1016, review
granted March 11, 2020, S259948; People v. Sanchez (2020)
46 Cal.App.5th 637, 642–643, review granted June 10, 2020,
S261768.
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(§ 1170.95, subd. (a)(2).) On its face, the statute does not apply to
convictions for attempted murder.
Pending guidance from our high court, we agree with the
authority holding that section 1170.95 does not apply to
attempted murder. We also agree with the conclusion that there
“is a rational basis for the Legislature’s decision to grant relief
pursuant to section 1170.95 only to murder convictions and
exclude attempted murder convictions based on judicial economy
and the financial costs associated with reopening both final
murder and final attempted murder convictions.” (People v.
Larios, supra, 42 Cal.App.5th at p. 970, review granted; see also
People v. Lopez, supra, 38 Cal.App.5th at pp. 1111–1113, review
granted.) Additionally, “because the punishment for murder is so
much more severe than the punishment for attempted murder,
the Legislature may have wished to limit Senate Bill 1437’s
ameliorative reforms to those instances where it perceived the
disconnect between culpability and punishment to be most
glaring. It is not our place to judge the wisdom, fairness, or logic
of the Legislature’s decision to omit attempted murder from
Senate Bill 1437’s ambit. We do not find the plain meaning of
Senate Bill 1437 to be absurd, much less so absurd in its results
that we would be permitted to disregard the literal language used
in the statute.” (People v. Alaybue, supra, 51 Cal.App.5th at
p. 225.)
D. The Trial Court Did Not Err In Not Appointing
Counsel to Represent Maldonado
If, as here, a petitioner fails to make a prima facie showing
that he or she falls within the provisions of section 1170.95, we
have held that the petitioner is not entitled to appointed counsel.
(See, e.g., People v. Lewis (2020) 43 Cal.App.5th 1128, 1140,
9
review granted Mar. 18, 2020, S260598; People v. Verdugo, supra,
44 Cal.App.5th at pp. 332–333; People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410;
but see People v. Cooper (2020) 54 Cal.App.5th 106, 123, review
granted Nov. 10, 2020, S264684 [holding that section 1170.95,
subdivision (c), mandates appointment of counsel upon filing of a
facially sufficient petition].)
Even assuming arguendo that Maldonado was entitled to
appointed counsel upon filing his petition, any such assumed
error would not be structural. (People v. Daniel (2020)
57 Cal.App.5th 666, 675–676, review granted Feb. 24, 2021,
S266336.) Any such failure to appoint counsel, moreover, would
be harmless under any standard of prejudice because Maldonado
was ineligible for relief under section 1170.95 as a matter of law.
(People v. Law (2020) 48 Cal.App.5th 811, 826, review granted
July 8, 2020, S262490 [holding failure to appoint counsel
harmless beyond a reasonable doubt]; People v. Cooper, supra,
54 Cal.App.5th at p. 123 [failure to appoint counsel subject to
harmless error analysis].)
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DISPOSITION
The order denying Rene Maldonado’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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