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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

RENE MALDONADO,

Defendant and Appellant.

 B308783

 (Los Angeles County

 Super. Ct. No. PA045406)

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.

——————————
2

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. 
3

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. 
4

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 
5

(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 
6

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
7

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.” 
8

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. 
9

(§ 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,
10

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].) 
11

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.