Filed 6/16/21 P. v. Maldonado CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

RE NE MALDONADO,

Defendant and Appellant. B 308783

(Los Angeles County Super. Ct. No. P A 0 45406 )

APPEAL from an order of the Superior Court of
Los Angeles County, Daniel B. Feldstern , Judge. Affirmed

. J onathan 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 Attorney s Gener al, 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 w as 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 ca tegorically ineligible for
relief.

BACKGROUND

Maldonado , a member of the Paco i ma 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. ] ( Mald onado 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 .)
Follo wing Maldonado’s first appeal, t his court reversed one conviction for being a felon in possession of a firearm. ( Maldonado II

, supra , B292272 .) Following remand from Maldonado’s second appeal, t he trial court struck the section 667.5, subdivision (b) enh ancement.

1. Petition for r esentencing
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 t he 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
d id not include theories of felony murder or natural and pro b able 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 Rese ntencing 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 afor ethought.’ ” ( 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 th e 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 theor y

. (See Stats. 201 8,
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 th e 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; or5

(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
definit ion 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, t he 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. G entile

, 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 F or Relief Because He Was
Convicted a s a Direct Aider and Abettor
Maldonado was not convicted based on a no longer viable theory of murder. As Maldonado recogni z es , there i s no crim e of attempted felony murder. ( People v. Billa (2003) 31 Cal.4th 1064, 1071, fn

. 4.) Although Maldonado argues that he could have been6

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 th e 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 th at other person the ‘perpetrator.’ A person is equally guilty of the crime whe ther 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 o ne 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 aidin g 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 t he crime;

“ 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;

“ AND7

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 est ablishes 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 t he 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 th at 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
mal ice 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 f act 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 specificall y 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. V erdugo

, supra , 44 Cal.App.5th at

p. 330 [“The record of conviction might also include other information that establishes the petitione r 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 th ere 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,
110 4

– 1 107, review granted Nov

. 13, 2019, S258 1 75 ; 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
resentenci ng for murder only . I t 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 deg ree 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.
P ending guidance from our high court

, we agree with th e 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

gran ted .) 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 b etween 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 Repre sent 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.Ap p.5th 1128, 1140
,10

review granted Mar

. 18, 2020, S260598 ; People v. V erdugo

, 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, 1 23, 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 ineligibl e 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
harmles s 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 PUBLISHE D.

BENDIX, J.

We concur:

ROTHSCHILD

, P. J.

CHANEY , J.