People v. Soto CA1/1

Filed 6/16/22 P. v. Soto CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A163944
v.
ISIDRO PENA SOTO, (Solano County
Super. Ct. No. FCR241319)
Defendant and Appellant.

In 2007, defendant Isidro Pena Soto drove while under the influence of
alcohol and collided head on with another vehicle, killing its driver. A jury
convicted Soto of several crimes, including second degree murder. He was
sentenced to 19 years to life in prison, and this division affirmed the
judgment after modifying it to strike certain lesser included offenses.
(People v. Soto (Sept. 29, 2009, A123133) [nonpub. opn.] (Soto I).)
The Legislature subsequently enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill No. 1437), which altered liability for murder under
the theories of felony murder and natural and probable consequences. The
bill also established a procedure, under newly enacted Penal Code1
section 1170.95, for eligible defendants to petition for resentencing. In 2021,

All further statutory references are to the Penal Code unless
1

otherwise noted.

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Soto filed a petition for resentencing under section 1170.95 alleging that he
was convicted of second degree murder under the natural and probable
consequences doctrine and could no longer be convicted of that crime because
of Senate Bill No. 1437’s changes to the law.
The trial court summarily denied the petition without appointing
counsel for Soto. The court concluded that Soto was ineligible for relief
because he was convicted of second degree murder based on People v. Watson
(1981) 30 Cal.3d 290 (Watson), which held that a defendant who drives while
intoxicated and kills someone may be convicted of second degree implied
malice murder. (Id. at pp. 300–301.)
On appeal, Soto claims he made a prima facie showing of eligibility for
relief under section 1170.95 because the statute “covers a Watson implied
malice murder.” (Boldface omitted.) He argues the trial court therefore
prejudicially erred by denying his petition without appointing counsel to
represent him. We disagree with these arguments and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The underlying facts are taken from Soto I, supra, A123133:
“Kent Boone drove over the crest of an incline on
Highway 12 in Solano County around 6:15 a.m. on March 31,
2007, and was met head on by a Ford Expedition driven by [Soto].
Boone died at the scene from blunt force injuries suffered in the
collision.

“The accident was witnessed by [A.B.], who testified that he
was driving east on Highway 12, a two-lane road with solid
double lines in the middle, when he noticed [Soto’s] vehicle in his
rear view mirror approaching rapidly and swerving back and
forth between the lanes. [A.B.] slowed and moved to the shoulder
of the road to avoid [Soto], who passed by at a speed [A.B.]
estimated to be 85 to 90 miles per hour. As [Soto] went up an

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 incline, he drifted over into the westbound lane and collided with
Boone’s vehicle, which emerged going in the other direction.

“[Soto] exhibited signs of being under the influence of
alcohol, but field sobriety tests could not be administered because
his leg was trapped under the dashboard of the Expedition.
[Soto] was extricated from the vehicle and flown to a hospital,
where a sample of his blood was drawn sometime between 9:27
and 9:55 a.m. that morning. Prosecution analysis of the blood
sample found an alcohol content of .10 percent; defense analysis
found .09 percent. The prosecution’s expert estimated that [Soto]
had a blood-alcohol content of .154 at the time of the accident;
[Soto’s] expert estimated .16.

“[Soto] had completed an 18-month alcohol abuse treatment
program three months before the accident. Records showed that
he never missed a class in the program. The program counselor
. . . testified that the main point of the treatment was to
underscore the risks of driving under the influence. [The
counselor] said that he told [Soto] 26 times face-to-face and 12
times in classes about the risk to life created by drunk driving,
and warned him that killing someone while driving under the
influence could constitute murder. [Soto] signed a plea form in
one of his prior drunk driving cases in which he acknowledged
that ‘it is extremely dangerous to human life to drive while under
the influence of alcohol or drugs, or both. If I continue to drive
while under the influence of alcohol or drugs, or both, and as a
result of that driving, someone is killed, I can be charged with
murder.’ ”
Soto was tried in 2008. On the murder count, the jury was instructed
under CALCRIM No. 520 that Soto acted with express malice “if he
unlawfully intended to kill” and with implied malice if “1. He intentionally
committed an act; [¶] 2. The natural consequences of the act were dangerous
to human life; [¶] 3. At the time he acted, he knew his act was dangerous to
human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for
human life.” The jury found him guilty of second degree murder, gross
vehicular manslaughter while intoxicated, two lesser included offenses of

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gross vehicular manslaughter while intoxicated, and two drug-related
offenses.2 It also found true that Soto had three prior convictions for driving
with a blood-alcohol content of .08 percent or more.3
The trial court sentenced Soto to 19 years to life in prison, composed of
a term of 15 years to life for murder and four years for transportation of
methamphetamine. Terms on the remaining counts were imposed and
stayed. On appeal, this division struck the lesser included offenses of gross
vehicular manslaughter while intoxicated and their accompanying
enhancements and affirmed the judgment as modified. (Soto I, supra,
A123133.)
In March 2021, Soto filed a petition for relief under section 1170.95,
averring that he was convicted of second degree murder under the natural
and probable consequences doctrine and could no longer be convicted of that
crime based on changes to the law made by Senate Bill No. 1437. Later that
month, the trial court summarily denied the petition. Soto did not appeal
from this order. Instead, in October 2021, he filed another petition for relief
under section 1170.95, in which he made the same claim of entitlement to
relief and sought appointment of counsel. The same day, the court again
summarily denied the petition, explaining, “The Defendant was convicted of

2 The convictions were under sections 187, subdivision (a) (murder),
and 191.5, subdivision (a) (gross vehicular manslaughter while intoxicated),
Health and Safety Code sections 11378 (possession for sale of
methamphetamine) and 11379, subdivision (a) (transportation of
methamphetamine), and Vehicle Code section 23153, subdivisions (a) and (b)
(lesser included offenses of gross vehicular manslaughter while intoxicated).
3 The prior-conviction allegations were found true under Vehicle Code
sections 23540 and 23546, based on 2005 misdemeanor convictions under
Vehicle Code section 23142, subdivision (b).

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2nd degree Murder based on Watson prior driving under the influence, under
implied malice.”4 This appeal followed.
II.
DISCUSSION
A. Senate Bill No. 1437 and Section 1170.95
“ ‘Effective January 1, 2019, Senate Bill [No.] 1437 amended murder
liability under the felony-murder and natural and probable consequences
theories. The bill redefined malice under section 188 to require that the
principal acted with malice aforethought. Now, “[m]alice shall not be
imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)’ [Citation.] The bill also amended section 189 to provide
that a defendant who was not the actual killer and did not have an intent to
kill is not liable for felony murder unless he or she ‘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,’ or the victim was a peace
officer performing his or her duties. (§ 189, subds. (e) & (f).)” (People v.
Daniel (2020) 57 Cal.App.5th 666, 672.)
Senate Bill No. 1437 also enacted section 1170.95, which provides a
mechanism for seeking resentencing under the new law. The statute
authorizes “[a] person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s participation in a
crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter [to] file a petition with the court that sentenced the

4 The trial court did not deny the second petition on the basis that it
was duplicative of the first petition, and the Attorney General does not argue
that Soto waived his claims by failing to appeal from the denial of the first
petition. Therefore, we will assume Soto’s claims are preserved.

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petitioner to have the petitioner’s murder, attempted murder, or
manslaughter conviction vacated and to be resentenced on any remaining
counts.” (§ 1170.95, subd. (a).)
“ ‘[T]he defendant initiates the process by filing a petition in the
sentencing court that must include three pieces of information. (§ 1170.95,
subd. (b).)” (People v. Daniel, supra, 57 Cal.App.5th at p. 672.) First, the
petition must include “[a] declaration by the petitioner that the petitioner is
eligible for relief under this section, based on all the requirements of
subdivision (a).” (§ 1170.95, subd. (b)(1)(A).) Those requirements are that
(1) “[a] complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine”; (2) “[t]he petitioner was convicted of
murder, attempted murder, or manslaughter following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could be convicted of
murder or attempted murder”; and (3) “[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).) Second, the
petition must include “[t]he superior court case number and year of the
petitioner’s conviction.” (§ 1170.95, subd. (b)(1)(B).) And finally, the petition
must state “[w]hether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1)(C).)
Effective January 1, 2022, “[u]pon receiving a petition in which the
information required by this subdivision is set forth or a petition where any
missing information can readily be ascertained by the [trial] court, if the

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petitioner has requested counsel, the court shall appoint counsel to represent
the petitioner.” (§ 1170.95, subd. (b)(3); Stats. 2021, ch. 551, § 2.) This
provision codifies the Supreme Court’s decision in People v. Lewis (2021)
11 Cal.5th 952 (Lewis), which held that “petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient petition” for
relief. (Id. at p. 957; Stats. 2021, ch. 551, § 1.)
Finally, section 1170.95, subdivision (c), addresses the procedure for
determining whether an order to show cause should issue. That provision
states that “[a]fter the parties have had an opportunity to submit briefings,
the court shall hold a hearing to determine whether the petitioner has made
a prima facie case for relief. If the petitioner makes a prima facie showing
that the petitioner is entitled to relief, the court shall issue an order to show
cause. If the court declines to make an order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” If an order to show
cause issues, the court “hold[s] a hearing to determine whether to vacate the
murder, attempted murder, or manslaughter conviction and to recall the
sentence and resentence the petitioner on any remaining counts,” unless the
parties “waive a resentencing hearing and stipulate that the petitioner is
eligible to have the . . . conviction vacated and to be resentenced.” (§ 1170.95,
subd. (d)(1)–(2).)
B. Soto Is Ineligible for Relief Under Section 1170.95 as a Matter of
Law.
Soto claims the trial court erred by denying his petition, because a
defendant convicted of Watson murder is eligible for resentencing under
section 1170.95. He is incorrect.
We begin by reviewing the law of second degree murder. “Murder is
the unlawful killing of a human being, or a fetus, with malice aforethought.”
(§ 187, subd. (a).) “For purposes of Section 187, malice may be express or

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implied.” (§ 188, subd. (a).) “Malice is express when there is manifested a
deliberate intention to unlawfully take away the life of a fellow creature,” and
it is “implied when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant
heart.” (§ 188, subd. (a)(1)–(2).) “Express malice is an intent to kill,” but
implied malice does not require such intent. (People v. Gonzalez (2012)
54 Cal.4th 643, 653.) Rather, “[m]alice is implied when a person willfully
does an act, the natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious disregard for the
danger to life that the act poses.” (Ibid.) All murders committed with
implied malice are of the second degree. (Ibid.)
Watson held that vehicular homicide may be charged as second degree
murder “if the facts surrounding the offense support a finding of ‘implied
malice.’ ” (Watson, supra, 30 Cal.3d at p. 294.) The Supreme Court explained
that in contrast to the mind state required for gross vehicular manslaughter,
“[i]mplied malice contemplates a subjective awareness of a higher degree of
risk than does gross negligence, and involves an element of wantonness
which is absent in gross negligence.” (Id. at p. 296.) And while gross
negligence is evaluated objectively, based on whether a reasonable person
would have appreciated the risk, “a finding of implied malice depends upon a
determination that the defendant actually appreciated the risk involved, i.e.,
a subjective standard.” (Id. at pp. 296–297, italics omitted.)
Senate Bill No. 1437 abolished the natural and probable consequences
doctrine, but it did not affect the concept of implied malice. As we have
explained,
“[b]efore Senate Bill No. 1437, ‘the natural and probable
consequences doctrine was an exception to the actual malice
requirement’—i.e., the requirement of either express or implied

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 malice. [Citations.] The name of the doctrine is confusing, since
implied malice also incorporates the idea of ‘natural and probable
consequences,’ but the two concepts are distinct. Whereas
implied malice is based on ‘the “natural and probable
consequences” of a defendant’s own act,’ the natural and probable
consequences doctrine was ‘a theory of vicarious liability under
which “[a]n aider and abettor [was] guilty not only of the
intended, or target, crime but also of any other crime a principal
in the target crime actually commit[ted] (the nontarget crime)” ’
—including murder—‘ “that [was] a natural and probable
consequence of the target crime.” ’ [Citation.] ‘Because a
nontarget murder “ ‘[was] unintended, the mens rea of the aider
and abettor with respect to that offense [was] irrelevant and
culpability [was] imposed simply because a reasonable person
could have foreseen the commission of the [murder]. . . .’ ” ’

“Under section 188 as amended by Senate Bill No. 1437, ‘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.’ (§ 188,
subd. (a)(3).) Although the legislation thus ‘abolished the natural
and probable consequences doctrine’ as a theory of vicarious
liability, ‘it maintained the viability of murder convictions based
on implied malice, and the definition of implied malice remains
unchanged.’ [Citation.] In other words, a person may still be
convicted of second degree murder, either as a principal or an
aider and abettor, ‘if the person knows that his or her conduct
endangers the life of another and acts with conscious disregard
for life.’ ”
(People v. Rivera (2021) 62 Cal.App.5th 217, 231–232, fn. omitted.)
In People v. Roldan (2020) 56 Cal.App.5th 997 (Roldan), the Second
District Court of Appeal applied these concepts to hold that a person
convicted of Watson murder is ineligible for relief under section 1170.95.
(Roldan, at p. 1004.) Roldan explained that under Watson, “[m]alice may be
implied when a person willfully drives under the influence of alcohol.” (Ibid.)
Thus, a defendant convicted of Watson murder is “convicted under a theory of
actual implied malice, not malice imputed under the natural and probable

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consequences doctrine.” (Ibid.) Although “the doctrine of implied malice has
a ‘natural and probable consequences’ element,” the defendant must “actually
appreciate that death is the natural and probable consequence of his or her
actions, and further requires that the [defendant] consciously disregard that
danger.” (Id. at pp. 1004–1005.) Thus, unlike the natural and probable
consequences doctrine eliminated by Senate Bill No. 1437, implied malice
rests on the killer’s own mens rea. (See Roldan, at pp. 1004–1005.)
Soto contends that “Roldan is inapposite” because it was decided before
the current version of section 1170.95 took effect. When Roldan was decided,
the statute provided that “[a] person convicted of felony murder or murder
under a natural and probable consequences theory” could petition for
resentencing (former § 1170.95, subd. (a)), and the corresponding condition of
relief required that “[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” (former § 1170.95, subd. (a)(1)). Now, as a result of Senate Bill
No. 775 (2021–2022 Reg. Sess.) (Senate Bill No. 775), the provisions quoted
above pertain to not only “felony murder or murder under the natural and
probable consequences doctrine” but also any “other theory under which
malice is imputed to a person based solely on that person’s participation in a
crime.” (§ 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.) In other words,
section 1170.95 now echoes section 188’s requirement that “[m]alice shall not
be imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
Even assuming without deciding that Senate Bill No. 775
substantively expanded the classifications of those who are entitled to relief
under section 1170.95, Soto would not be included. According to him, implied

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malice qualifies as a “theory under which malice is imputed to a person based
solely on that person’s participation in a crime,” because “implied malice” is
equivalent to “imputed malice.” But implied malice is not the same as
imputed malice. As explained above, implied malice is based on a defendant’s
own mens rea, whereas malice “imputed to a person based solely on his or her
participation in a crime” is based on vicarious liability for a killing committed
by another person. Soto claims that “implied malice . . . was imputed to [him]
because he participated in a crime,” but that is simply false. There were no
other participants in Boone’s murder, and the jury was not told it could find
Soto acted with implied malice based on his participation in some other
crime. Rather, the finding of implied malice was based on ample evidence
that Soto was actually aware of and consciously disregarded the grave risk to
life he took by driving drunk. Thus, malice was not imputed to him within
the meaning of section 188, and he is ineligible for relief under
section 1170.95 as a matter of law. (See Roldan, supra, 56 Cal.App.5th at
pp. 1004–1005.)
C. The Failure To Appoint Counsel for Soto Was Harmless.
Soto also claims the trial court erred by failing to appoint counsel for
him before denying the petition, requiring a remand to appoint counsel and
permit briefing. We are not persuaded.
As mentioned above, a few months before the trial court ruled, the
Supreme Court held that “petitioners are entitled to the appointment of
counsel upon the filing of a facially sufficient petition” for resentencing under
section 1170.95. (Lewis, supra, 11 Cal.5th at p. 957.) A petition is facially
sufficient if it meets the requirements under section 1170.95, subdivision (b).
(See Lewis, at p. 957; § 1170.95, subds. (b), (c).) It is uncontested that Soto’s
petition was facially sufficient, and he requested that counsel be appointed.

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Therefore, under Lewis, the court should have appointed counsel and
permitted briefing before denying the petition.
Nevertheless, the error was harmless because it is not “ ‘ “reasonably
probable that if [Soto] had been afforded assistance of counsel his . . . petition
would not have been summarily denied without an evidentiary hearing.” ’ ”
(Lewis, supra, 11 Cal.5th at p. 974.) Soto states that “[h]ad [he] been allowed
to brief the issues and submit additional evidence, he may very well have
established that an order to show cause should have issued.” But no briefing
or evidence could change the fact that, as explained above, he is ineligible for
relief under section 1170.95 as a matter of law.
III.
DISPOSITION
The October 8, 2021 order denying Soto’s petition under section 1170.95
is affirmed.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Wiss, J. *

*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

People v. Soto A163944

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