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.

 B298570

 (Los Angeles County

 Super. Ct. No. NA080558)

APPEAL from an order of the Superior Court of Los 

Angeles County, Judith 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, Deputy

Attorneys General, for Plaintiff and Respondent.
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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 appointment of counsel. The court found he 

was ineligible 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 disagree 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.) (SB 1437), which “amend[ed] . . . the 
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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 participant 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 that 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 his 

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 resentencing process. 

The resentencing court summarily denied Roldan’s petition 

without appointing counsel, finding he was ineligible for relief 

because 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 commission 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.” ’ [Citations.] ‘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 natural 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 and probable consequence could have implied 
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malice imputed to him or her, and could therefore be convicted of 

second degree murder. (People v. Chiu, supra, 59 Cal.4th at p. 

164.)

On September 11, 2018, Governor Brown signed SB 1437 

into law, which eliminated the natural and probable 

consequences doctrine for murder entirely.

A primary purpose of SB 1437 was 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 under 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 for 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 petitioner’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 the 
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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 file 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).)

We review de novo whether the trial court properly 

interpreted and fulfilled 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 determine whether a petitioner has made a prima facie 

case for relief under section 1170.95, a trial court may look to the 

record of conviction and the court file. The 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 with second degree murder. 
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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 implied. [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. 294.) 

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 probable 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 nonmurder charges either pertained to the natural and probable 

consequences doctrine or confused the jury as to the 

requirements for a finding of implied malice. 
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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 conviction 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 consequence of the 

act aided and abetted.” (People v. Chiu, supra, 59 Cal.4th at p. 

162, italics added.) In contrast to this vicarious liability, under 

which the mens rea of an aider and abettor towards the killing is 

irrelevant, the doctrine of implied malice requires 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 remand is necessary because the trial court 

could not determine whether or not he was entitled to relief 

without permitting the statutory process 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 eligibility 

under the statute (People v. Lewis, supra, 43 Cal.App.5th 1128, 

1139-1140, review granted Mar. 18, 2020, S260598; cf. People v. 
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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.