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Filed 6/14/24 P. v. Eugene CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
MARCUS COLUMBUS EUGENE,
Defendant and Appellant. E081115
(Super.Ct.No. RIF1770138)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.
Heather L. Beugen , under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

Gener al, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Lynne G.
McGinnis, and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and
Respondent.2

Marcus Columbus Eugene appeals from an order denying his petition to vacate his

murder conviction and to be resentenced under Penal Code section 1172.6 . (Unlabeled
statutory citations refer to the Penal Code.) We affirm.

BACKGROUND
Following a trial in February 2018, a jury convicted Eugene of firs t degree murder
(§ 187, subd. (a)) and active participat ion in a criminal street gang (§ 186.22, subd. (a)).
The jury found true that the murder was committed for the benefit of, at the direction of,

or in association with a criminal street gang (§ 186.22 , subd. (b)(1)(A)) and that a
principal personally and intentionally discharged a firearm causing great bodily injury or

death to a non

- accomplice (§ 12022.53, subds. (d) & (e)). The trial court sentenced
Eugene to 50 years to life in state prison

— 25 year s to life for the murder count and 25
years to life for the firearm enhancement.

In December 2022, Eugene filed a petition for resentencing under section 1172.6.

At the prima facie hearing on Eugene’s petition , the People argued that Eugene was ineligible for relief under section 1172.6 , because the jury was not instructed on the
natural and probable consequences doctrine , felony murder, or any other theory under
which malice is imputed . Defense counsel agreed that the jury was not instructed on

those theories and submitted on the petition. T he trial court concluded that Eugene was
“statutorily ineligible ” and denied the petition.3 DISCUSSION
Eugene argues that the trial court prejudicially erred by failing to review the

record of conviction before denying his petition

. W e conclude that any error was

harmless

. Effective January 1, 2019, Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Senate
Bill 1437) narrowed the first degree fel ony

- murder rule and eliminated the natural and
probable consequences doctrine “to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to kill, or was not a major
participant in the underlying fe lony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 also created a procedural
mechanism for retroactive application of those changes in the law to defendants who

were convicted of murder und er prior law but could no t be convicted under current law

. (§ 1172.6 ; People v. Curiel (2023) 15 Cal.5th 433, 511 ( Curiel ) .)
Upon the filing of a facially sufficient petition under section 1172.6 , the trial court
must appoint counsel for the petitioner if requested, permit the People to file a response
and the petitioner to file a reply, and determine whether the petitioner has made a prima
facie showing of entitlement to relief. (§ 1172.6, subd. (c); see generally People v. Lewis
(2021) 11 Cal.5th 952, 971

- 972 ( Lewis ).) In conducting the prima facie review, the court
treats the petitioner ’ s factual allegations as true and makes a preliminary assessment of
whether the petitioner would be entitled to relief if those allegations were proved.
( Lewis , at p. 971.) But if the record of conviction refutes the petitioner ’ s allegations by4

“establish[ing] conclusively that the [petitioner] is ineligible for relief,” then “the trial
court may dismiss the p etition.” ( Curiel
, supra , 15 Cal.5th at p. 511.)
We independently review a trial court’s denial of a section 1172.6 petition at the
prima facie stage

. ( People v. Bratton (2023) 95 Cal.App.5th 1100, 1113.)
Eugene’s record of conviction demonstrates that he is ineligible for relief as a

matter of law . Eugene’s jury was not instructed on felony murder, the natural and
probable consequences doctrine, or any other theory under which malice is imputed.
Eugene points ou t that the jury did not find that he “intentionally and personally
discharged a firearm causing great bodily injury and death of the victim,” and he argues

on that basis that it was not clear that he was the actual shooter. But the jury instructions

confi rm that Eugene was found guilty of first degree murder as either a direct perpetrator

or a direct aider and abettor , because the jury was not instructed on any other theories of
liability

. Eugene was therefore convicted on a theory that remains valid unde r current

law
, so he is ineligible for relief under section 1172.6. ( People v. Strong (2022) 13

Cal.5th 698, 710.) Consequently, insofar as the trial court erred by failing to review the
record of conviction, the error was harmless because there is no re asonable probability
that Eugene would have obtained a more favorable result in the absence of the error

. ( Lewis , supra , 11 Cal.5th at p. 974; People v. Watson (1956) 46 Cal.2d 818, 836.)5 DISPOSITION
The order denying Eugene’s petition under section 1172.6 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ J.

We concur:

MILLER ACTING P. J.

CODRINGTON J.