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Filed 9/23/21 P. v. Maldonado CA2/6

Opinion following transfer from Supreme 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

RAMON DAVID 

MALDONADO,

 Defendant and Appellant.

2d Crim. No. B306808

(Super. Ct. No. 1434089)

(Santa Barbara County)

OPINION FOLLOWING 

TRANSFER FROM 

SUPREME COURT

Ramon David Maldonado appeals from the trial 

court’s postjudgment order denying his petition for resentencing. 

(Pen. Code,1 § 1170.95.) He contends the court erred when it 

summarily denied his petition without appointing counsel. We 

affirm.

FACTUAL AND PROCEDURAL HISTORY

In May 2015, a jury convicted Maldonado and four 

codefendants of first degree murder (§§ 187, subd. (a), 189, subd. 

1 Statutory references are to the Penal Code.
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(a)), and found true a special circumstance allegation that they 

committed murder during the commission of a kidnapping 

(§ 190.2, subd. (a)(17)(B)). (People v. Gonzales (Aug. 7, 2018, 

B264384) 2018 WL 3737940 at p. *1 (Gonzales) [nonpub. opn.].) 

As to Maldonado only, the jury also found true a special 

circumstance allegation that the murder was intentional and 

involved the infliction of torture (§ 190.2, subd. (a)(18)). 

(Gonzales, at p. *1.) In a bifurcated proceeding, the trial court 

found true allegations that Maldonado served three prior prison 

terms (§ 667.5, subd. (b)). (Gonzales, at p. *1.) It sentenced him 

to life in state prison without the possibility of parole plus three 

years. (Ibid.)

Maldonado did not challenge the jury’s true finding 

on the torture special circumstance on appeal, but did challenge 

the kidnapping special circumstance finding. (Gonzales, supra, 

2018 WL 3737940 at pp. *7-8.) We rejected his challenge. (Id. at 

p. *17.) 

After the case was final, Maldonado petitioned the 

trial court to resentence him pursuant to section 1170.95. In his 

petition, Gonzales declared that: (1) the information filed against 

him allowed the prosecution to proceed on a felony murder 

theory, (2) he was convicted of first degree felony murder, (3) he 

could not now be convicted of first degree murder based on 

amendments to sections 188 and 189, and (4) he was not the 

actual killer. Maldonado also requested the appointment of 

counsel to assist him during the resentencing process.

Prosecutors filed an “initial response” to Maldonado’s 

petition. The response set forth the facts of the case and the

prosecutors’ preferred procedure for evaluating a resentencing 

petition. It also argued that Maldonado failed to make a prima 
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facie showing of entitlement to relief because, in finding true the 

torture special circumstance allegation, the jury determined that 

he acted with the intent to kill. Attached to the response was a 

copy of our opinion in Maldonado’s direct appeal.2

The trial court summarily denied Maldonado’s 

petition because he did not “make a prima facie case for eligibility 

as a matter of law.” Although he was not the actual killer, he 

“intended to kill the victim and/or was a major participant and 

acted with reckless disregard for human life” based on the jury’s 

true findings on the kidnapping and torture special circumstance 

allegations. Maldonado was therefore not entitled to the 

appointment of counsel or a hearing on his resentencing petition.

On appeal, Maldonado contended the trial court erred 

when it summarily denied his section 1170.95 resentencing 

petition without appointing counsel. (People v. Maldonado (June 

21, 2021, B306808) 2021 WL 2525124 at p. *1 [nonpub. opn.].) 

We disagreed, concluding that appointment of counsel was not 

required because Maldonado was statutorily ineligible for section 

1170.95 relief. (Id. at pp. *2-3.) The Supreme Court 

subsequently granted Maldonado’s petition for review, and 

ordered us to vacate our decision and reconsider the matter in 

light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis).

DISCUSSION

Maldonado contends the trial court erred when it 

summarily denied his section 1170.95 resentencing petition 

without appointing counsel. Having reconsidered the matter, we

2 The trial court deemed prosecutors’ response to 

Maldonado’s petition a “discretionary filing, with no procedural 

significance under the statutory scheme, as it included as an 

attachment [our] opinion on direct appeal.”
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agree. (Lewis, supra, 11 Cal.5th at pp. 961-970.) But the error 

was harmless.

If a trial court erroneously denies a section 1170.95 

resentencing petition without appointing counsel, the error is 

prejudicial and requires reversal only if the petitioner shows a 

reasonable probability that the “‘“petition would not have been 

summarily denied without an evidentiary hearing”’” had the 

court appointed counsel. (Lewis, supra, 11 Cal.5th at p. 974; see 

People v. Watson (1956) 46 Cal.2d 818, 836.) Here, the jury found 

true a torture special circumstance allegation, a finding 

Maldonado did not challenge on direct appeal. That finding—

which is now law of the case (Conservatorship of Edde (2009) 173 

Cal.App.4th 883, 889)—required the jury to determine that 

Maldonado acted with the intent to kill. (People v. Davenport

(1985) 41 Cal.3d 247, 271.) A defendant who acts with the intent 

to kill can still be convicted of murder under the amended 

versions of sections 188 and 189. (See § 189, subd. (e)(2).) They 

are thus ineligible for resentencing as a matter of law. 

(§ 1170.95, subd. (a)(3).) Accordingly, Maldonado has failed to 

show a reasonable probability that his petition would not have 

been summarily denied even if the trial court had appointed 

counsel. The error was harmless. (People v. Simmons (2021) 65 

Cal.App.5th 739, 749-750, review granted Sept. 1, 2021, S270048

(Simmons).) 

And to the extent the court erred when it accepted 

prosecutors’ response to Maldonado’s petition, that error was also 

harmless given his ineligibility for resentencing. (Simmons, 

supra, 65 Cal.App.5th at pp. 749-750, review granted.)
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DISPOSITION

The trial court’s order denying Maldonado’s petition 

for resentencing, entered June 1, 2020, is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
John F. McGregor, Judge

Superior Court County of Santa Barbara

______________________________

Leonard J. Klaif, 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, Amanda Lopez and Stacy S. 

Schwartz, Deputy Attorneys General, for Plaintiff and 

Respondent.