Filed 4/19/22 P. v. Calderon CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROLANDO CALDERON,

Defendant and Appellant.

 B312516

 (Los Angeles County

 Super. Ct. No. PA033836)

APPEAL from an order of the Superior Court of Los 

Angeles County, Ronald S. Coen, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee, Jr. and David A. 

Wildman, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

I. INTRODUCTION

Defendant Rolando Calderon appeals from the trial court’s 

denial of his Senate Bill No. 1437 and Penal Code section 

1170.951 petition for resentencing. He contends the court erred 

in summarily denying his petition without appointing counsel to 

represent him or allowing briefing. We affirm.

II. BACKGROUND

A jury convicted defendant of two counts of willful, 

deliberate, and premeditated attempted murder. (§§ 664/187, 

subd. (a).) The jury found true gang and firearm allegations. 

(§§ 186.22, subd. (b)(1); 12022.53, subds. (d) & (e)(1).) The trial 

court sentenced defendant to two consecutive life terms with 15-

year minimum parole eligibility dates, consecutive to 25 years to 

life, consecutive to 20 years. On March 6, 2003, a prior panel of 

this division affirmed defendant’s judgment. (People v. Calderon

(Mar. 6, 2003, B157399) [nonpub. opn.].)

On April 1, 2021, defendant filed a petition for resentencing 

pursuant to Senate Bill No. 1437 and section 1170.95. In his 

petition, defendant requested the trial court appoint counsel for 

him “during resentencing.” On April 14, 2021, without the 

prosecution’s or defendant’s presence, and without appointing 

counsel for defendant, the court denied defendant’s petition. It 

ruled that defendant’s petition did not comply with subdivision 

(a) of section 1170.95 because it did not attach page two of the 

form petition and thus did not include the allegations that the 

prosecution proceeded under a theory of felony murder or murder 

1 All further statutory references are to the Penal Code.
3

under the natural and probable consequences doctrine, he was 

convicted of first or second degree murder by verdict or plea, and 

he could not now be convicted of first or second degree murder 

due to legislative changes to sections 188 and 189.

“[T]o avoid a needless resubmission,” however, the trial 

court also decided the petition on the merits.2 It reviewed the 

case file and the appellate opinion of the prior panel of this 

division that affirmed defendant’s judgment. The court ruled

that defendant’s attempted murder convictions did not, as a 

matter of law, qualify for relief under section 1170.95 and, 

accordingly, defendant was ineligible for section 1170.95 relief.

III. DISCUSSION

On October 5, 2021, during the pendency of this appeal, the 

Governor signed Senate Bill No. 775 which amended section 

1170.95 to permit resentencing of certain persons convicted of 

attempted murder under a natural and probable consequences 

theory. (§ 1170.95, subd. (a); see Sen. Bill No. 775 (2021–2022 

Reg. Sess.), as amended Oct. 5, 2021, p. 3; Stats. 2021, ch. 551, 

§§ 1–2.) Section 1170.95’s amendments became effective 

January 1, 2022.

2 We note that pursuant to section 1170.95, subdivision 

(b)(2), the court could have denied defendant’s petition without 

prejudice based on the missing page two. Subdivision (b)(2) 

provides: “If any of the information required by this subdivision 

is missing from the petition and cannot be readily ascertained by 

the court, the court may deny the petition without prejudice to 

the filing of another petition and advise the petitioner that the 

matter cannot be considered without the missing information.”
4

After the Governor signed Senate Bill No. 775, the parties 

filed letter briefs. Defendant asserts that Senate Bill No. 775 

“‘[c]larifies that persons who were convicted of attempted murder 

or manslaughter under a theory of felony murder and the natural 

probable consequences doctrine are permitted the same relief as 

those persons convicted of murder under the same theories.’ 

(Sen. Bill No. 775 (2020–2021 Reg. Sess.) at § 1(a).)” Defendant 

contends we should remand to the trial court because the court 

summarily denied his petition on the now erroneous ground that 

he was convicted of attempted murder.

The Attorney General acknowledges that Senate Bill 

No. 775 extends section 1170.95’s provisions to attempted murder 

convictions and concedes the trial court erred in denying 

defendant’s petition without appointing counsel for defendant 

(see People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis) [“the 

statutory language and legislative intent of section 1170.95 make 

clear that petitioners are entitled to the appointment of counsel 

upon the filing of a facially sufficient petition (see § 1170.95, 

subds. (b), (c))”])3, but argues the error was harmless because 

defendant “could not have been convicted of attempted murder 

under any theory of liability affected by Senate Bill [No.] 1437 

[presumably Senate Bill No. 775], and indeed was necessarily 

convicted under a theory of actual malice . . . .” We agree that 

any error was harmless.

The erroneous failure to appoint counsel under section 

1170.95 is reviewed for prejudice under People v. Watson (1956) 

46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 957–958.) 

Under that standard, defendant has the burden to show a 

3 We do not decide whether defendant’s petition was facially 

sufficient. As noted above, it was missing page two.
5

reasonable probability that he would have obtained a more 

favorable result if the trial court had appointed counsel. (Id. at 

p. 974.) A court’s error in failing to appoint counsel under section 

1170.95 is harmless when the jury was not instructed on a 

natural and probable consequences theory. (See People v. Daniel

(2020) 57 Cal.App.5th 666, 677 [error in not appointing counsel 

under section 1170.95 was harmless because the jury was not 

instructed on felony murder or the natural and probable 

consequences doctrine], review dismissed, cause remanded 

Dec. 1, 2021, No. S266336.) Because the trial court did not 

instruct the jury on the natural and probable consequences 

doctrine,

4 any error in failing to appoint counsel was harmless.

Likewise, because defendant was not convicted of 

attempted murder under a natural and probable consequences 

theory and was thus ineligible for relief under section 1170.95, 

any error in summarily denying his petition without allowing 

briefing was harmless. (See People v. Edwards (2020) 48 

Cal.App.5th 666, 675 [because the defendant did not fall within 

the provisions of section 1170.95 as a matter of law, any error in 

failing to allow briefing was “harmless under any standard of 

review [citations]”], review dismissed Jan. 5, 2022, No. S262481.)

4 The section 12022.53 instruction included natural and 

probable consequences language; the attempted murder 

instructions and the instructions defining principals and aiding 

and abetting did not. Section 1170.95 does not address 

attempted murder on a felony murder theory, and the jury was 

not instructed on attempted felony murder.
6

IV. DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.