Filed 2/14/22 P. v. Maldonado CA2/1 Opinion follo wing trans fer from S upreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.

RENE 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 , Amanda V. Lopez and Kathy S. Pomerantz , Deputy Attorney s General, for Plaintiff and Respondent.

——— ———————2 The trial court summarily denied petitioner Rene Maldonado’s Penal Code section 1170.95 petition for resentencing. 1 We previously affirmed the trial court’s order, and the Supreme Court vacated our o pinion with directions to
reconsider the appeal in light of Sena t e Bill No. 775

. 2 As amended by Senate Bill No. 775, s ection 1170.95 now allows persons convicted of attempted murder to petition for resentencing. We again affirm the trial court’s order denying Maldonado’s resentencing petition

. As a matter of law, Maldonado is ineligible for resentencing because he was not convicted of attempted murder based on felony murde r , the natu ral and probable consequences doctrine, or any other theory under which malice was imputed to him based solely on his participation in a crime. ( § 1170.95, subd. (a).) Although the trial court should have appointed counsel to represent Maldonado, the err or was not prejudicial.

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. ] ( Maldonado 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. ]

1 All statutory citations are to the Penal Code.

2 Sen ate Bill No. 775 (2021

– 2022 Reg. Sess.) effective January 1, 2022, amended section 1170.95 by Stat utes 2021, ch apter 551, section 2 (Senate Bill No. 775).3

( Maldonado II

)

. ) The jury found that the at tempted 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 al so found that
Maldonado committed his crimes for the benefit of a criminal street gang. ( Ibid .) Maldonado admitted a prior serious or violent felony conviction and a prior conviction within the meaning of section 667.5, subdivision (b). ( Ibid .) Following 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 ) enhancement.

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 the 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 petit ion
The trial court denied Maldonado’s petition without appointing counsel and without holding a hearing. The court
concluded Maldonado was in eligible for relief as a matter of law.
The trial court explained that Maldonado’s criminal trial did not include theories of felony murder or natural and pro b able4

consequences. The trial court also reasoned that section 1170.95 resentencing relief does not extend to convictions for attempted
murder.

DISCUSSION

A. Maldon ado is Ineligible for Resentencing
To be convicted of murder, a jury must ordinarily find that the defendant acted with the requisite mental state, known as

“ ‘malice aforethought.’ ” ( 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 the 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.” ’ [Citation.]” ( 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.) (Senate Bill No. 1437) , 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 theory. (See Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended section 189, wh ich 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 the actual killer, acted “with the5

intent to kill” and “aided, ab etted, counseled, commanded, induced, solicited, requested, or assisted the actual killer” in the commission of first degree murder; or (3) was “a major participant in the underlying felony and acted with reckless indifference to human life, as described i n subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also amended the definition 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).) In addition to amending sections 188 and 189, the 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 c onsequences theory to file with the sentencing court a petition to vacate the conviction and be resentenced. (§ 1170.95, subd. (a).)
Under the amended version of section 1170.95,
subdivision (a)(2), which became effective January 1, 2022, a
defendant co nvicted of attempted murder may be eligible for resentencing relief. The amended statute permits persons convicted of “felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murde r under the natural and probable consequences doctrine

, or manslaughter” to file a petition for resentencing. ( § 1170.95, subd. (a).) Maldonado was not convicted based on a no longer viable theory of attempted murder. As Maldonado recogni z es , there is
no crim e of attempted felony murder. ( People v. Billa (2003)
31 Cal.4th 1064, 1071, fn

. 4.) Although Maldonado argues that6

he could have been convicted based on a natural and probable consequences theory, the record does not support his contention.
Af ter giving the introductory instruction on aiding and abetting, 3 the trial court instructed the 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. 4 The trial court did not instruct Maldonado’s jury with

3 The trial court instructed the jury with C ALCRIM 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 in structions, I will call that 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 one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.”

4 The trial court instructed the jury with CALCRI M No. 401 as follows: “To prove that the defendant is guilty of a crime based on aiding 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 establishes aiding and abetting of one crime, a person may also be found guilty of oth er 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 the natural and probable consequences theory of aiding and abetting. The
instructio ns, 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 that 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 malice aforethought. The court further instructed the jury that malice aforethought r equired 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.

“ 4. The defendant’s words or conduct did in f act aid and abet the perpetrator’s commission of the crime.

“ Someone aids a nd abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to

, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”8

Maldonado is ineligible for resentencing under section 11 70.95 as a matter of law.
Maldonado ’s reliance on People v. Langi ( Jan. 12, 2022

, A 1 60262 ) [ 2022 WL 110250 ] for the proposition that he may be eligible for resentencing is misplaced

. In Langi

, the jury
inst r uctions permitted the jury to find the defendant guilty of second degree murder as an aider and abettor even if the aider and abettor did not know “the act he aided was life

- threatening,
or that he must himself have acted with indifference to human
life.” ( Id. at p. *5.) In contrast, in this case, as we have explained, the instructions required the jury to find Maldonado harbored the intent to aid and abet the attempted murders. Additionally, to convict Maldonado of attempted murder

, the jury was require d to find he “intended to kill” and that he acted with express malice. This case did not include the instructions challenged in Langi

.

B. The Error in Not Appointing Counsel to Represent
Maldonado Was Harmless

After th e first appeal f rom the petition for resentencing

, our high court decided People v. Lewis (2021) 11 Cal.5th 952, 957

, in which it held that petitioners are “entitled to the appointment of counsel upon the filing of a facially sufficient petition . . . .”
Lewis further held that the error in failing to appoint counsel
constitutes state law error and should be tested for prejudice under People v. Watson (1956) 46 Cal.2d 818. ( L ewis

, at pp. 957

– 958.) Under this standard of prejudice, Maldonado “

‘ has the burden of showing “ it is r easonably probable that if [he

. . . ] had been afforded assistance of counsel his . . . petition would not have been summarily denied without an evidentiary hearing. ” ’ [Citation.] ” ( Id. at p. 974.)9 Under Lewis , the trial court erred in failin g to appoint counsel to represent Maldonado. This error, however, was harmless. Because Maldonado is ineligible for relief as a matter of law, appointed counsel would not have assisted him.

DISPOSITION
The order denying Rene Maldonado’s petition for

re sentencing is affirmed.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD

, P. J.

CHANEY , J.