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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.

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 

General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Lynne G. 

McGinnis, and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and 

Respondent.
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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 first degree murder 

(§ 187, subd. (a)) and active participation 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 years 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. The trial court concluded that Eugene was 

“statutorily ineligible” and denied the petition.
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DISCUSSION

Eugene argues that the trial court prejudicially erred by failing to review the 

record of conviction before denying his petition. We 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 felony-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 felony 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 under prior law but could not 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 by 
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“establish[ing] conclusively that the [petitioner] is ineligible for relief,” then “the trial 

court may dismiss the petition.” (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 out 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 

confirm 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 under 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 reasonable 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.)
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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.