Filed 10/30/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE

,
Plaintiff and Respondent,

v.

MARLON MAFREND ROLDAN

,

Defendant and Appellant. B 298570

(Los Angeles County Super. Ct. No. NA080558 )

APPEAL from an order of the Superior Court of Los Ange les County, J udith Meyer , Judge. Affirmed

. Mary Jo Strnad

, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra

, Attorney General

, Lance E. Winters

, Chief
Assistant Attorney General

, Susan Sullivan Pithey , Assistant Attorney General, Charles S. Lee and Ryan M. Smith , Deput y Attor ney s General

, for Plaintiff and Respondent.2 Marlon Roldan was convicted of second degree murder under an implied malice theory for killing a person while driving
under the influence of alcohol (DUI)

. He filed a petition in the superior court for resentencing under Penal Code section 1170.95 and requested the appointmen t of counsel. The court found he

was in eligible for relief as a matter of law because he was convicted under a theory of direct rather than vicarious liability.
The court therefore denied the petition without appointing counsel or holding an evidentiary hearing.
Roldan contends that Penal Code section 1170.95 should apply to his conviction for DUI murder, and he should have been appointed counsel to assist with his petition. We d isagree with both contentions, and thus affirm.
BACKGROUND On the evening of December 15, 2008, Roldan consumed
several alcoholic drinks at a party
, then drove his van toward his
home but fell asleep at the wheel, crossed a center line, and
collided with an SUV traveling in the opposite direction , killing a passenger in the SUV and injuring the driver . He was convicted
of second degree murder, gross vehicular manslaughter while intoxicated, DUI causing injury, causing injury while driving
with a 0.08 percent blood

- alcohol concentration, driving with a suspended license, and failing to provide evidence of financial responsibility, with a finding that he inflicted great bodily injury
on the SUV ’ s driver. The court sentenced him to 22 years to life plus six months in prison. We affirmed the conviction on appeal but reduced the sentence to 19 years to life plus six months

. ( People v. Roldan (2011) 197 Cal.App.4th 920, 922

. ) In 2018, the Legislature enacted Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (S B 1437), which “ amend[ed]

. . . the3

natural and probable consequences doctrine, as it relates to murder, 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 partic ipant in the underlying felony who
acted with reckless indifference to human life. ” (Stats. 2018, ch. 1015, § 1(f).)
SB 1437 added Penal Code section 1170.95, 1 which establishes a procedure by which an individual convicted of
murder under the natural and probable consequences doctrine
can seek vacation of th at conviction and resentencing. (Stats. 2018, ch. 1015, § 4, pp. 6675

- 6677; see also People v. Lewis (2020) 43 Cal.App.5th 1128, 1134, review granted Mar

. 18, 2020, S260598.) The provisions of SB 1437 became effective on January 1, 2019.
On March 22, 2019, Roldan filed a form petition under
section 1170.95 , checking boxes on the form indicating that hi s murder conviction was based on the natural and probable consequences doctrine, he could not now be convicted of murder due to changes made to section 188, and he sought appointment
of counsel to assist in the re sentencing process.
The resentencing cou rt summarily denied Roldan’ s petition without appointing counsel, finding he was ineligible for relief
bec ause he had not been prosecuted under any theory covered
under section 1170.95

. DISCUSSION
Roldan contends he made a prima facie showing of
entitlement to relief under section 1170.95 , and the court erred

1 Undesignated statutory references will be to the Penal Code.4

by denying him appointed counsel to support his showing . We disagree with both contentions.
I. Legal Principles

“ A conviction for murder requires the commissio n of an act that causes death, done with the mental state of malice aforethought (malice)

. ” ( People v. Gonzalez (2012) 54 Cal.4th 643, 653.)
Before SB 1437, malice could be imputed to an aider and
abettor under the natural and probable consequences doctrine.

“ ‘ “ A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the
intended crime. ” ’ [Citation s .] ‘ Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it
is a natu ral and probable consequence of the intended assault. ’ [Citation

. ] [¶ ] A nontarget offense is a ‘ natural and probable

consequence ’ of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ‘ “ is measured by whether a reasonable person in the
defendant ’ s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the
act aided and abetted. ” ’ ” ( People v. Chiu (2014) 59 Cal.4th 155,
161

- 162.) Thus, before SB 1437, an aider and abettor who lacked express malice but merely engaged in activity of which murder
was a natural a nd probable consequence could have implied5

malice imputed to him or her, and could therefore be convicted of second degree murder. ( People v. Chiu

, supra , 59 Ca l.4th at p. 164.)
O n September 11, 2018, Governor Brown signed SB 1437 into law, which eliminate d the natural and probable

consequenc es doctrine for murder entirely.
A primary purpose of SB 1437 wa s to align a person ’ s culpability for murder with his or her mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To effectuate that purpose, SB 1437
amended section 188 to state that “ [m] alice shall not be imputed to a person based solely on his or her participation in a crime. ” (§ 188, subd. (a)(3).)
SB 1437 also added section 1170.95 , which permits “ [a] person convicted of

. . . murder unde r a natural and probable consequences theory ” to petition the sentencing court to vacate the conviction and resentence on any remaining counts if the person could not be convicted of murder under the new section
188. (§ 1170.95, subd. (a).) A petition fo r relief under section
1170.95 must include: “ (A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petition er ’ s conviction. [¶] (C) Whether the petitioner requests the appointment of counsel. ” (§ 1170.95, subd. (b)(1).) If any of this information is missing “ and cannot be readily ascertained by the court, ” the court may deny the petition without prejudice. (§ 1170.95, subd. (b)(2).) If the petition contains the required information, the court

must “ review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of [section 1170.95]. ” (§ 1170.95, subd. (c).) If the6

petitioner has made this initial prima facie showing, he or she is entitled to appointed counsel, if requested

, and the prosecutor must file a response, and the petitioner may fi le a reply. (§ 1170.95, subd. (c).) The court then reviews the petition a
second time. If it concludes in light of this briefing that the petitioner has made a prima facie showing of entitlement to relief, it must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and recall the sentence and resentence the petitioner on any remaining counts. ( Id . at subds. (c) & (d)(1).)
W e review de novo whether the trial court properly interpreted and ful filled its duty under the statute. (See Greene v. Marin County Flood Control & Water Conservation Dist . (2010) 49 Cal.4th 277, 287.)
II. Analysis
Roldan contends summary denial of his petition was made prematurely and without first providing him a fair opportunity to respond to the trial court ’ s erroneous conclusion that he was not convicted under a natural and probable consequences theory

. To determin e whether a petitioner has made a prima facie case for relief under section 1170.95, a trial cour t may look to the
record of conviction and the court file. T he contents of the record of conviction defeat a prima facie showing when the record shows as a matter of law that the petitioner is not eligible for relief.
The record of conviction in this case demonstrates that
Roldan was found guilty of second degree DUI murder , called
Watson murder

, after People v. Watson (1981) 30 Cal.3d 290 ( Watson ) , which held that an intoxicated driver who causes death may be charged w ith second degree murder

.7 As stated above, a conviction for murder requires the
commission of an act “ done with the mental state of malice aforethought (malice). ” ( People v. Gonzalez

, supra , 54 Cal.4th at p. 653.) “ Malice may be either express or impli ed. [Citation.] . . . Malice 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.

. . . [¶] The law recognizes two degrees of murder. . . . A person who kills unlawfully with implied malice is guilty of second degree murder. ” ( Ibid

. ) Malice may be implied when a person willfully drives under
the influence of alcohol. ( Watson

, supra , 30 Cal.3d at p. 29 4 .)
Roldan was therefore convicted under a theory of actual implied malice, not malice imputed under the natural and probable consequences doctrine, and thus failed to meet the threshold requirement of showing he was convicted under a natural and pr obable consequences theory. 2
Roldan argues he was, in fact, convicted under “ a natural and probable consequences theory, ” because Watson murder itself is a natural and probable consequences theory. We disagree.
It is true that the doctrine of implied malice has a “ natural and probable consequences ” element. As stated by our Supreme Court, “ [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

2 Nothing in the record suggests, and Roldan does not claim, that jury instructions or closing argument on the non

murder charges either pertained to the natural and probable consequences doctrine or confused the jury as to the requirements for a finding of implied malice.8

disregard for the danger to life that the act poses

. ” ( People v.
Gonzalez

, supra , 54 Cal.4th at p. 653, italics added.)
But SB 1437 removed the natural and probable consequences doctrine as a basis for a murder conv iction only insofar as it applied to aider and abettor liability. As discussed above, that liability arose when “ a reasonable person in the
defendant ’ s position would have or should have known that the charged offense was a reasonably foreseeable conseque nce of the
act aided and ab etted. ” ( People v. Chiu

, supra , 59 Cal.4th at p.
162 , italics added .) In contrast to th is vicarious liability, under which the mens rea of an aider and abettor towards the killing is irrelevant, the doctrine of implied malice r equires that the perpetrator actually appreciate that death is the natural and probable consequence of his or her actions, and further requires that the perpetrator consciously disregard that danger

. (See People v. Smith (2018) 4 Cal.5th 1134, 1165 [knowledge of danger and conscious disregard for human life is essential to a finding of implied malice] ; People v. Lee (2020) 49 Cal.5th 254, 261 [the natural and probable consequences doctrine is not an implied malice theory] .) SB 1437 did nothing to remove implied malice as a basis for a second degree murder conviction.
Roldan argues r emand is necessary because the trial court
could not determine whether or not he was entitled to relief without permitting the statutory pro cess to take place , and he was denied an opportunity to counter the court’s misconceptions and establish an appellate record. We disagree. The right to counsel under section 1170.95 does not attach until the petitioner makes a prima facie showing of eligi bility under the statute ( People v. Lewis

, supra , 43 Cal.App.5th 1128,
1139

- 1140, review granted Mar. 18, 2020, S260598; cf. People v.9

Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18, 2020, S260493). Roldan failed to demonstrate eligibility under
the statute. His arguments contesting that failure have all been fairly presented by his appellate counsel , and an appellate record preserved.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION

CHANEY, J.

We concur:

BENDIX, Acting P. J.

SINANIAN , J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.