Filed 7/15/22 P. v. Vega CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL LOUIS VEGA, JR.,

Defendant and Appellant.

 B316987

 (Los Angeles County

 Super. Ct. No. GA051544)

APPEAL from an order of the Superior Court of 

Los Angeles County, Jared D. Moses, Judge. Affirmed. 

Deborah L. Hawkins, 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, Idan Ivri and Peggy Z. Huang, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

In 2003, a jury convicted defendant and appellant 

Angel Louis Vega, Jr. of second degree murder and further found 

that in committing the offense, Vega personally used a deadly 

weapon. In 2021, Vega petitioned the trial court for resentencing 

under Penal Code1 section 1170.95 (now section 1172.6). The 

trial court denied Vega’s petition because Vega was the actual 

killer and the case did not involve a theory of imputed malice. 

We affirm the trial court’s order denying Vega’s 

resentencing petition. As a matter of law, the record of conviction 

reveals that Vega is ineligible for resentencing because he 

was not convicted of murder based on felony murder, the natural 

and probable consequences doctrine, or any other theory under 

which malice was imputed to him based solely on his 

participation in a crime. (§ 1172.6, subd. (a)(1).) Although the 

trial court erred in not appointing counsel for Vega, the error was 

harmless because Vega is ineligible for resentencing as a matter 

of law.

BACKGROUND

In 2003, Vega resided in a trailer in Rosemead with his 

father, grandmother, and father’s cousin, Mario Olivarria. 

(People v. Vega (Feb. 25, 2005, B172317) [nonpub. opn.] [2005 

Cal.App.Lexis 1662 at p. *2].) Vega carried a five-inch fixedblade knife. (Ibid.) On November 23, 2002, Vega and Olivarria 

argued. (Id. at p. *3.) Following the argument, Vega stabbed 

Olivarria, who suffered 18 stab wounds. (Ibid.) On December 7, 

2002, Olivarria died of complications from the wounds. (Ibid.)

1 Unspecified statutory citations are to the Penal Code.
3

On May 27, 2003, the District Attorney charged Vega with 

murdering Olivarria. On November 3, 2003, the jury found Vega 

guilty of second degree murder and found true the allegation that 

Vega personally used a dangerous and deadly weapon within the 

meaning of section 12022, subdivision (b)(1). On December 29, 

2003, the trial court sentenced Vega to 15 years to life in prison 

with an additional year for the personal use of a dangerous and 

deadly weapon, totaling 16 years. 

The trial court instructed the jury that to convict Vega of 

murder, the jury had to find he acted with malice aforethought.2 

The court defined both express and implied malice. The jury 

instructions distinguished murder from manslaughter as follows: 

“[M]urder requires malice while manslaughter does not.” The 

trial court did not instruct the jury on the felony murder or the 

natural and probable consequences doctrines. As noted, the jury 

convicted Vega of second degree murder. 

On October 18, 2021, Vega filed a petition for resentencing 

under section 1170.95 (now section 1172.6). Vega requested the 

trial court appoint counsel to represent him. The resentencing 

court denied Vega’s petition because the jury found Vega was the 

actual killer and did not convict him under felony-murder or the 

natural and probable consequences doctrine. The resentencing 

court did not appoint counsel for Vega. Vega timely appealed.

2 We granted the Attorney General’s request to take 

judicial notice of the trial court’s jury instructions and the verdict 

form. 
4

DISCUSSION

In his appeal, Vega argues he was erroneously deprived of 

counsel and counsel would have aided him in determining 

whether the natural and probable consequences doctrine applied 

to his conviction. Vega offers no theory under which the natural 

and probable consequences doctrine could apply to this case, and 

we conclude, as a matter of law, it does not. 

To be convicted of murder, a jury ordinarily must 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).) In Senate Bill No. 1437 (2017–

2018 Reg. Sess.) (Senate Bill No. 1437), the Legislature amended 

section 188 to provide that “[e]xcept as stated in subdivision (e) of 

Section 189, [an exception inapplicable to this case], in order to 

be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person 

based solely on his or her participation in a crime.” (Stats. 2018, 

ch. 1015, § 2.) Senate Bill No. 1437 effectively “ ‘eliminates 

natural and probable consequences liability for first and second 

degree murder.’ [Citation.]”

3 (People v. Garrison, supra,

73 Cal.App.5th at p. 742.) 

Section 1172.6 allows a person convicted of murder under 

the natural and probable consequences theory to petition the trial 

court that sentenced him or her for a resentencing hearing. As 

part of his or her petition, the petitioner must show that he or 

3 Senate Bill No. 1437 also made changes to the felonymurder doctrine. (People v. Garrison (2021) 73 Cal.App.5th 735, 

741.) Those changes are not relevant to this appeal because the 

jury was not instructed on that doctrine and Vega makes no 

argument with respect to the felony-murder doctrine.
5

she “could not presently be convicted of murder or attempted 

murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (a)(3).) The petitioner may 

also request that the court appoint counsel. (Id., subd. (b)(1)(C).) 

In People v. Gentile (2020) 10 Cal.5th 830 (Gentile), the 

California Supreme Court held that Senate Bill No. 1437 “bars a 

defendant from being convicted of second degree murder under a 

theory that the defendant aided and abetted a crime, the natural 

and probable consequence of which was murder.” (Gentile, at 

p. 843.) As the court explained, “Murder, whether in the first or 

second degree, requires malice aforethought. (§ 187.) Malice can 

be express or implied. It is express when there is a manifest 

intent to kill (§ 188, subd. (a)(1)); it is implied if someone kills 

with ‘no considerable provocation . . . or when the circumstances 

attending the killing show an abandoned and malignant heart’

(§ 188, subd. (a)(2)). When a person directly perpetrates a killing, 

it is the perpetrator who must possess such malice.” (Gentile, at 

p. 844.) 

Turning to the case before us, the jury instructions 

required the jury to find Vega had malice aforethought to find 

him guilty of second degree murder. The jury received no 

instruction that it could convict Vega because he participated in a 

target crime the natural and probable consequence of which was 

murder. The jury therefore could not have relied on a natural 

and probable consequence theory to convict him. The jury 

convicted defendant as the actual killer under a theory of malice 

based on his own actions and mens rea, not the actions of another 

person imputed to him. Because the instructions provide no 

basis from which the jury could have convicted him based upon a 

now invalid theory, Vega is ineligible for resentencing relief. 
6

(Gentile, supra, 10 Cal.5th at p. 848 [“Senate Bill 1437 does not 

eliminate direct aiding and abetting liability for murder because 

a direct aider and abettor to murder must possess malice 

aforethought.”]; People v. Coley (2022) 77 Cal.App.5th 539, 548 

[affirming denial of resentencing petition on attempted murder 

where jurors not instructed on natural and probable 

consequences doctrine]; People v. Estrada (2022) 77 Cal.App.5th 

941, 945 [trial court’s denial of petition is proper where record 

shows petitioner acted with malice].) 

Finally, although we agree with Vega’s contention that the 

resentencing trial court erroneously denied his petition without 

appointing counsel to represent him, Vega has not, however, 

demonstrated prejudice. 

In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our high 

court held that former section 1170.95 subdivision (c) requires 

“that counsel be appointed upon the filing of a facially sufficient 

petition.” (Lewis, at p. 970.) Lewis also held the failure to 

appoint counsel does not violate a petitioner’s constitutional right 

and is only an error of state statutory law, to which the Watson4

harmless error standard applies. (Lewis, at p. 973.) Under the 

Watson harmless error standard, the petitioner has the burden of 

proof to “ ‘demonstrate there is a reasonable probability that in 

the absence of the error he . . . would have obtained a more 

favorable result.’ ” (Lewis, at pp. 973–974.) 

Lewis further held that trial courts can consider the record 

of conviction in determining whether a defendant has made a 

prima facie case for resentencing. (Lewis, supra, 11 Cal.5th at

p. 971 [“The record of conviction will necessarily inform the trial 

4 People v. Watson (1956) 46 Cal.2d 818.
7

court’s prima facie inquiry under [former] section 1170.95, 

allowing the court to distinguish petitions with potential merit 

from those that are clearly meritless.”]). Because the record of 

conviction demonstrates that, as a matter of law, Vega was 

ineligible for resentencing, the resentencing trial court’s failure to

appoint counsel for Vega counsel was harmless error. (See Lewis, 

at p. 974.)

DISPOSITION

The order denying Vega’s petition for resentencing is 

affirmed. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.