P. v. Molina

Filed 6/18/20 P. v. Molina 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAUL GARCIA MOLINA,
Defendant and Appellant.
B301642
(Los Angeles County
Super. Ct. No. NA023660)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Affirmed.
Sally Patrone Brajevich, 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, Idan Ivri and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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Defendant and appellant Raul Garcia Molina appeals
from the trial court’s denial of his petition under Penal Code1
section 1170.95. That statutory section permits defendants
convicted of murder under the felony murder rule or natural and
probable consequences doctrine to petition for resentencing based
on changes to the Penal Code enacted under Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015).
We reject Molina’s argument that he was statutorily and
constitutionally entitled to be personally present with appointed
counsel before the trial court could deny his petition. Section
1170.95 permits the trial court to make an initial eligibility
determination, based on the petition and the record of conviction,
before appointing counsel or holding a hearing. This initial
determination is not a “critical stage” of the proceedings to which
the constitutional rights of personal presence and of appointed
counsel attaches. In addition, Molina has had assistance of
counsel on appeal on the legal question of eligibility under section
1170.95.
We further conclude that Molina was statutorily ineligible
for relief under section 1170.95. Molina’s jury instructions make
clear he was found to have acted with express or implied malice,
and was not convicted under theories of felony murder or natural
and probable consequences. His conviction remains valid despite
the changes effected by Senate Bill No. 1437.
Accordingly, we affirm.
1 Undesignated statutory citations are to the Penal Code.

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FACTUAL BACKGROUND
The following facts are taken from our opinion addressing
Molina’s original appeal from his conviction, People v. Molina
et al. (July 28, 1997, B097810) [nonpub. opn.].
On March 3, 1985, witness D.G. saw Molina and
codefendant Macedonio Rodriguez (Rodriguez) arguing with
Manuel Garcia (Garcia) in the parking lot of Cove Bowl in
Wilmington. Molina and Rodriguez were members of the Wilmas
gang. Garcia “had been a member of the Keystone gang in
Carson.” (People v. Molina, supra, B097810.) D.G. knew all
three men.
Rodriguez swung a fist at Garcia. Garcia ran, and Molina
and Rodriguez pursued him. D.G. went inside Cove Bowl.
Another witness, M.M., was sitting in front of his parents’
house approximately 40 yards south of Cove Bowl. He saw
Rodriguez and another man attack Garcia. “They knocked
Garcia down, hitting him in the head. Defendant Rodriguez was
straddling Garcia; he made downward jabbing motions at
Garcia’s torso and stomach.” (People v. Molina, supra, B097810.)
M.M. saw the other man kick Garcia “in the upper body and
head.” (Ibid.)
Witness J.Z. came out of Cove Bowl and saw Garcia on the
ground, with Rodriguez kicking him in the head. J.Z. did not
identify Molina. After the assailants ceased the attack, J.Z. took
Garcia to the hospital, where he died from multiple stab wounds.
Garcia “also had multiple abrasions and contusions on his face,
head, legs and back. He had suffered a brain hemorrhage
consistent with being hit or kicked in the head.” (People v.
Molina, supra, B097810.)

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When D.G. returned to the parking lot, she saw Molina and
Rodriguez walking towards her. “Molina was wiping off the blade
of a knife.” (People v. Molina, supra, B097810.) “Shortly
thereafter,” D.G. went to a park where she again encountered
Molina and Rodriguez. (Ibid.) D.G. asked Rodriguez if he had
hurt Garcia, and Rodriguez said, “ ‘It’s between me and him over
a beef we had.’ ” (Ibid.) D.G. asked if Rodriguez had stabbed
Garcia, and he said, “ ‘We just nicked him a little bit.’ ” (Ibid.)
PROCEDURAL HISTORY
In 1995, a jury found Molina and Rodriguez guilty of second
degree murder.2 The jury found the allegation that Molina
“personally used a deadly and dangerous weapon, to wit, a knife”
to be not true. We affirmed the judgment.
Twenty-four years later, on August 8, 2019, Molina filed
a petition for resentencing in the trial court under the recently
enacted section 1170.95. Molina contended the prosecution
had tried his case “under poorly stated theories of felony
murder . . . and aid[ing] and abet[ting],” “vaguely describing the
natural and probable consequences doctrine in the jury
instructions.” Molina claimed he could not now be convicted
because of the recent amendments to sections 188 and 189 under
Senate Bill No. 1437. Molina requested appointment of counsel.
Molina attached to the petition our opinion from his
original appeal, as well as his verdict form, which indicated he
had been convicted of second degree murder with the allegation
that he personally used a deadly weapon found not true.
2 Rodriguez was not apprehended until 1994, which was
the primary reason the trial took place a decade after the
commission of the offense.

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Molina also attached an excerpt from the reporter’s
transcript of his trial containing the jury instructions pertaining
to aiding and abetting and murder. The instructions stated that
a person could be guilty of a crime if he or she “directly and
actively commit[ted] the act constituting the crime,” or “aid[ed]
and abet[ted] the commission of the crime.” The instructions
defined aiding and abetting: “A person aids and abets the
commission of a crime when he, [¶] [o]ne, with knowledge of the
unlawful purpose of the perpetrator and, [¶] [t]wo, with the
intent or purpose of committing, encouraging or facilitating the
commission of the crime by act or advice aids[,] promotes,
encourages or instigates the commission of the crime.”
The instructions further stated that “[e]ach defendant” was
accused of committing murder in violation of section 187, the
elements of which were “[o]ne, a human being was killed[,] [¶]
[t]wo, the killing was unlawful and, [¶] [t]hree, the killing was
done with malice aforethought.” The jury was instructed that
malice could be express or implied, and that “[m]alice is implied
when: [¶] One, the killing resulted from an intentional act, [¶]
[t]wo, the natural consequences of the act are dangerous to
human life and, [¶] [t]hree, the act was deliberately performed
with knowledge of the danger to and with consci[ous]3 disregard
for human life.”
Later, the instructions stated that the jury “may not find
the defendant guilty of . . . murder . . . unless the proved
circumstances are not only, one, consistent with the theory that
the defendant had the required specific intent or mental state,
3 The reporter’s transcript said “conscience” instead of
“conscious.” The discrepancy is not at issue in this appeal.

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but, two, cannot be reconciled with any other rational
conclusion.”
The trial court denied Molina’s petition without Molina
present or represented by counsel. The trial court ruled that
Senate Bill No. 1437 illegally amended Proposition 7 and
therefore was unconstitutional.4 Assuming the bill was
constitutional, the trial court concluded Molina nonetheless was
ineligible for relief under section 1170.95 because he was
convicted as an aider and abettor, with “no evidence to suggest
that the prosecution relied on a theory of felony murder or
natural and probable consequences.” The trial court further
concluded that even had the prosecution proceeded under a
theory of natural and probable consequences, “petitioner
would not be entitled to relief because the jury convicted him of
second degree murder.”
Molina timely appealed.
DISCUSSION
Molina contends the trial court erred by denying his
petition without appointing counsel and without allowing Molina
to be present. He further contends the trial court wrongly
concluded he was ineligible for resentencing under section
1170.95. We reject these contentions.
4 Proposition 7 increased the penalties for first and second
degree murder. (People v. Lamoureux (2019) 42 Cal.App.5th 241,
250.)

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A. Applicable law
1. Malice, felony murder, and the natural and
probable consequences doctrine
A defendant is culpable for murder when “ ‘either the
defendant or an accomplice [proximately] causes an unlawful
death’ ” and the defendant “ ‘personally act[s] with malice
aforethought.’ ” (People v. Daveggio and Michaud (2018)
4 Cal.5th 790, 847, second bracketed insertion added.)
“[M]alice may be express or implied.” (§ 188, subd. (a).)
“Express malice requires an intent to kill,” but implied malice
does not. (People v. Soto (2018) 4 Cal.5th 968, 970 (Soto).)
Rather, “ ‘[m]alice is implied when the killing is proximately
caused by “ ‘an act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.’ ” ’ ” (People v.
Smith (2018) 4 Cal.5th 1134, 1165 (Smith).)
Prior to the enactment of Senate Bill No. 1437, both the
felony murder rule and the natural and probable consequences
doctrine provided theories under which a defendant could be
found guilty of murder without proof of express or implied malice.
“Under the felony murder rule, a defendant could be
convicted of murder ‘ “ ‘when the defendant or an accomplice
kill[ed] someone during the commission, or attempted
commission, of an inherently dangerous felony . . . .’ ” ’ [Citation.]
‘ “ ‘If the felony is listed in section 189, the murder is of the first
degree; if not, the murder is of the second degree.’ ” ’ ” (People v.

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Lee (2020) 49 Cal.App.5th 254, 261 (Lee), fn. omitted.)5 “Prior to
the enactment of Senate Bill No. 1437, ‘[f]elony murder d[id] not
require an intent to kill, or even implied malice, but merely an
intent to commit the underlying felony.’ ” (Ibid.)
“Similarly, under the natural and probable consequences
doctrine, ‘a person who knowingly aided and abetted a crime, the
natural and probable consequence of which was murder or
attempted murder, could be convicted of not only the target crime
but also of the resulting murder or attempted murder.
[Citations.] “This was true irrespective of whether the defendant
harbored malice aforethought. Liability was imposed ‘ “for the
criminal harms [the defendant] . . . naturally, probably, and
foreseeably put in motion.” ’ ” [Citation.] The natural and
probable consequences doctrine ‘is not an implied malice theory;
the mens rea of the aider and abettor with respect to the [murder
or attempted murder], actual or imputed, is irrelevant.’ ” (Lee,
supra, 49 Cal.App.5th at p. 261, third bracketed insertion added.)
2. Senate Bill No. 1437
“The Legislature enacted Senate Bill No. 1437 ‘to amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder,’ such that ‘[a]
person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.’ ” (Lee, supra,
5 Section 189, subdivision (a), reads, in relevant part, “All
murder . . . that is committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking, or any act punishable under Section
206, 286, 287, 288, or 289, or former Section 288a, . . . is murder
of the first degree.”

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49 Cal.App.5th at p. 261, quoting Stats. 2018, ch. 1015, § 1(f),
(g).)
“The bill significantly limited the felony murder rule by
adding subdivision (e) to section 189. (Stats. 2018, ch. 1015, § 3.)
That subdivision provides that ‘[a] participant in the perpetration
or attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶]
(2) The person was not the actual killer, but, with the intent to
kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.’ ” (Lee, supra, 49 Cal.App.5th at p. 262,
fn. omitted.)6
“Senate Bill No. 1437 also eliminated liability for murder
under the natural and probable consequences doctrine.
[Citation.] It did so by amending section 188, which now
provides, “Except as stated in subdivision (e) of Section 189, 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.’ ”
(Lee, supra, 49 Cal.App.5th at p. 262, quoting § 188, subd. (a)(3)
& citing Stats. 2018, ch. 1015, § 2.) “In short, after the enactment
6 “Subdivision (e) does not apply to a defendant when the
victim is a peace officer who was killed while in the course of the
peace officer’s duties, where the defendant knew or reasonably
should have known that the victim was a peace officer engaged in
the performance of the peace officer’s duties.” (§ 189, subd. (f).)

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of Senate Bill No. 1437, a defendant cannot be convicted of
murder absent a showing of malice, with the exception of felony
murder as limited by section 189, subdivision (e).” (Lee, at
p. 262.)
3. Section 1170.95
Section 1170.95 was enacted as part of Senate Bill
No. 1437. (Stats. 2018, ch. 1015, § 4.) It provides a mechanism
by which “[a] person convicted of felony murder or murder under
a natural and probable consequences theory” may benefit
retroactively from Senate Bill No. 1437’s changes to sections 188
and 189 by petitioning the trial court to vacate the murder
conviction and resentence the petitioner. (§ 1170.95, subd. (a).)
To be eligible for this relief, the following conditions must
apply: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was
convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder. [¶]
(3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3).)
The petition must be filed with the trial court that
sentenced the petitioner and served on the prosecuting agency
and on petitioner’s trial counsel. (§ 1170.95, subd. (b)(1).) “The
petition shall include all of the following: [¶] (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

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conviction. [¶] (C) Whether the petitioner requests the
appointment of counsel.” (Ibid.)
Section 1170.95, subdivision (b)(2) permits the trial court to
deny the petition without prejudice “[i]f any of the information
required by [§ 1170.95, subd. (b)(1)] is missing from the petition
and cannot be readily ascertained by the court.”
Section 1170.95, subdivision (c) provides that “[t]he court
shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of
service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. . . .
If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.”
If the trial court issues an order to show cause, within
60 days it must “hold a hearing to determine whether to vacate
the murder conviction and to recall the sentence and resentence
the petitioner on any remaining counts,” unless the parties waive
hearing and stipulate that the petitioner is entitled to relief.
(§ 1170.95, subds. (d)(1)–(2).) The prosecution has the burden to
prove beyond a reasonable doubt that the petitioner is ineligible
for resentencing. (Id., subd. (d)(3).) “The prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Ibid.)

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B. Section 1170.95 permits the trial court to deny an
unmeritorious petition based on the record of
conviction, without first appointing counsel,
receiving briefing, or holding a hearing
Molina argues that his petition “made a prima facie
showing that the petitioner falls within the provisions of [section
1170.95],” as required by the first sentence of section 1170.95,
subdivision (c), because his petition was, in Molina’s words,
“complete on its face.” By “complete on its face,” Molina means
the petition contained the information required under section
1170.95, subdivision (b)(1), including his declaration stating that
he could not be convicted of murder under the current versions of
sections 188 and 189. Molina contends that, because his petition
was complete, under subdivision (c) the trial court was required
to appoint counsel, obtain a response from the prosecution and a
reply from Molina, and hold a hearing before it could deny his
petition.
This division and others have rejected this argument, and
concluded that the trial court, when “determin[ing] if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of [section 1170.95],” (§ 1170.95,
subd. (c)), may consider not only the petition itself, but also the
record of conviction. (See People v. Lewis (2020) 43 Cal.App.5th
1128, 1137 (Lewis), review granted Mar. 18, 2020, S260598;
accord, People v. Verdugo (2020) 44 Cal.App.5th 320, 329–330,
see id. at p. 333 (Verdugo), review granted Mar. 18, 2020,
S260493; see also People v. Cornelius (2020) 44 Cal.App.5th 54,
57 (Cornelius) [affirming summary denial of section 1170.95
petition when “the verdict, the trial transcript and the prior
appeal” indicated petitioner could not make a prima facie

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showing for relief], review granted Mar. 18, 2020, S260410.) If
the record of conviction establishes as a matter of law that the
petitioner is ineligible for relief, the trial court may deny the
petition without appointing counsel or conducting further
proceedings. (See Verdugo, at pp. 329–330; Lewis, at p. 1138.)7
In Lewis, we explained that allowing the trial court to
review the record of conviction when making an initial
determination of eligibility under section 1170.95 is consistent
with other statutory provisions providing postconviction relief,
such as Proposition 47, which permits resentencing of certain
felonies as misdemeanors (see § 1170.18), Proposition 36, which
permits resentencing of three strikes sentences if the third strike
was not a serious or violent felony (see § 1170.126, subd. (e)), and
habeas corpus proceedings. (Lewis, supra, 43 Cal.App.5th at
pp. 1137–1138, review granted.) We also concluded it was “sound
policy,” agreeing with a commentator that “ ‘[i]t would be a gross
misuse of judicial resources to require the issuance of an order to
show cause or even appointment of counsel based solely on the
7 Section 1170.95, subdivision (c) twice refers to a “prima
facie showing”: in the first sentence of the subdivision, “a prima
facie showing that the petition falls within the provisions of this
section”; in the final sentence, “a prima facie showing that [the
petitioner] is entitled to relief.” Based on the language of the
subdivision, Lewis and Verdugo concluded these were two
separate prima facie showings, the first being an initial eligibility
determination based on the petition and the record of conviction,
the second a determination following appointment of counsel and
briefing by the parties. (Lewis, supra, 43 Cal.App.5th at p. 1140,
review granted; Verdugo, supra, 44 Cal.App.5th at p. 328, review
granted.) In this appeal we are concerned with the first prima
facie showing.

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allegations of the petition, which frequently are erroneous, when
even a cursory review of the court file would show as a matter of
law that the petitioner is not eligible for relief.’ ” (Id. at p. 1138.)
Verdugo, like Lewis, analogized the initial eligibility
determination under section 1170.95 to that of Propositions 36
and 47 and for habeas corpus petitions. (Verdugo, supra,
44 Cal.App.5th at pp. 328–329, review granted.) Verdugo further
noted that section 1170.95, subdivision (b)(2) provides that the
trial court may reject an incomplete petition; thus, the prima
facie determination in the first sentence of subdivision (c) “must
be something more than simply determining whether the petition
is facially sufficient; otherwise given subdivision (b)(2), this
portion of subdivision (c) would be surplusage.” (Verdugo,
at pp. 328–329.)
Molina argues that Verdugo, by requiring something more
than a facially complete petition before the appointment of
counsel, is contrary to the plain language of section 1170.95.
Molina does not address the interplay of subdivisions (b)(2) and
the first sentence of subdivision (c), as Verdugo did. Indeed, not
only does Molina fail to discuss subdivision (b)(2), he also omits it
from his verbatim quotation of section 1170.95, subdivisions (a)
through (c) in his opening brief, without ellipses or other
indication that he has left out a crucial section of the statute.
Molina’s criticism of Verdugo is not well taken.
Molina does not cite or discuss Lewis in his appellate
briefing, and therefore has no response to our conclusion that it
would be a waste of judicial resources to appoint counsel and
conduct further proceedings when a cursory review of the record
of conviction indicates a petition is without merit.

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Molina argues his position is supported by In re Cobbs
(2019) 41 Cal.App.5th 1073 (Cobbs), which, in describing the
procedures under section 1170.95, subdivision (c) stated, “The
court then reviews the petition for a prima facie case, and will
appoint counsel for a petitioner if requested.” (Cobbs, at p. 1080.)
To the extent Molina suggests Cobbs stands for the
proposition that, in determining whether a petitioner has made a
prima facie case, the trial court reviews the petition and nothing
else, we reject this suggestion. There is no indication in Cobbs
that the question of what was involved in the prima facie
showing under subdivision (c) was at issue in the case; nor would
it be, given that Cobbs was a habeas corpus proceeding to which
the court concluded Senate Bill No. 1437 and section 1170.95
did not apply. (Cobbs, supra, 41 Cal.App.5th at p. 1081.) “Cases
are not authority, of course, for issues not raised and resolved.”
(San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th
893, 943.)
Molina also argues that People v. Washington (2018)
23 Cal.App.5th 948 supports his position. He characterizes that
case as holding that, under Proposition 47, a defendant can make
a prima facie showing of eligibility for resentencing based solely
on statements in the petition, without providing additional court
documents or record citations. Molina misreads Washington,
which stated that the “initial screening is based on a review of
the petition itself . . . as well as the record of conviction.” (Id.
at p. 955, italics added.) Washington thus is consistent with the
holdings in Lewis and Verdugo that a trial court properly may
consider the record of conviction when determining a defendant’s
eligibility for resentencing under section 1170.95.

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The Supreme Court has granted review in Lewis to decide
(1) whether the trial court properly may consider the record of
conviction when ruling on a petitioner’s prima facie showing
under section 1170.95, and (2) when in the process outlined
under that section the right to appointed counsel arises. (See
Lewis, supra, S260598.) The Supreme Court also has granted
review in Verdugo and Cornelius, deferring further action
pending disposition of the issues in Lewis. (See Verdugo, supra,
S260493; Cornelius, supra, S260410.) As discussed, Molina’s
arguments do not persuade us to deviate from the holdings in
those cases. Thus, pending further guidance from the Supreme
Court, we conclude, consistent with Lewis, Verdugo, and
Cornelius, that the trial court properly could assess Molina’s
eligibility for relief under section 1170.95 based on the record of
conviction, without first appointing counsel or conducting further
proceedings.
C. Molina did not have a federal or state constitutional
right to be represented by counsel when the trial
court determined his eligibility under section
1170.95
Molina argues he had not only a statutory right to counsel,
but also a federal and state constitutional right, “because
resentencing is a critical stage in the proceedings.” We disagree.
“A criminal defendant has the right under the state and
federal Constitutions to be personally present and represented by
counsel at all critical stages of the trial.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 465 (Bryant).)
“[C]ritical stages can be understood as those events or
proceedings in which the accused is brought in confrontation
with the state, where potential substantial prejudice to the

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accused’s rights inheres in the confrontation, and where
counsel’s assistance can help to avoid that prejudice.”
(Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th
998, 1004–1005 (Gardner).)8
Gardner listed a number of proceedings that courts had
identified “as critical stages to which the constitutional right to
counsel attaches,” including arraignments, preliminary hearings,
postindictment lineups, postindictment interrogations, plea
negotiations, and sentencing. (Gardner, supra, 6 Cal.5th at
p. 1005.) Gardner held that the prosecution’s pretrial appeal of a
suppression order also qualified as a “critical stage” under the
state constitution, including in misdemeanor cases. (Ibid.)
Under Gardner’s rubric, we reject Molina’s contention that
a trial court’s initial determination of a petitioner’s eligibility
under section 1170.95 is a “critical stage.” Molina characterizes
the initial determination as “resentencing,” but this is incorrect.
The trial court’s “role at this stage is simply to decide whether
the petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner.” (Verdugo, supra,
44 Cal.App.5th at p. 329, review granted.) The prosecution is not
involved at that point, and thus there is no “confrontation with
the state” in which appointed counsel would be of assistance.
(Gardner, supra, 6 Cal.5th at pp. 1004–1005.) Nor does the
8 Gardner analyzed a defendant’s right to counsel under
the California Constitution, but noted that the “critical stage”
rule “was first articulated in cases interpreting the [federal] Sixth
Amendment.” (Gardner, supra, 6 Cal.5th at p. 1004.) The
federal and state rights to counsel are not identical, however; the
right to counsel under the California Constitution “extend[s]
more broadly than its federal counterpart, particularly in relation
to misdemeanor cases.” (Ibid.)

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trial court “exercis[e] its sentencing discretion,” to which the
right to counsel might attach. (See People v. Rouse (2016)
245 Cal.App.4th 292, 299–301 [Proposition 47 petitioner had
right to counsel during resentencing following trial court’s
determination of eligibility; court did not decide whether
petitioner had right to counsel during initial eligibility
determination].)
As stated in Lewis, the initial eligibility determination
under section 1170.95 is analogous to a determination whether to
summarily deny a habeas corpus petition (Lewis, supra,
43 Cal.App.5th at p. 1138, review granted), to which no
constitutional right to counsel attaches. (See McGinnis v.
Superior Court (2017) 7 Cal.App.5th 1240, 1243–1244, fn. 2
[“[a]ny right to habeas corpus counsel, absent an order to show
cause, is purely statutory”].)
Molina’s claim of a constitutional violation is further
undercut by the fact that on appeal he is represented by
appointed counsel. Because we are reviewing the trial court’s
determination that Molina is ineligible for relief as a matter of
law, our review is de novo. (In re Richards (2012) 55 Cal.4th 948,
960 [questions of law are reviewed de novo].) Thus, Molina,
represented by counsel, has had full opportunity to present
whatever arguments he believes he was unable to assert below.
Molina cites People v. Rodriguez (2019) 38 Cal.App.5th 971
(Rodriguez), in which the Court of Appeal reversed a denial of a
motion to vacate a conviction under section 1473.79 when the
9 As relevant in Rodriguez, section 1473.7 permits a
defendant who is no longer in custody to file a motion to vacate a
conviction or sentence because of “prejudicial error damaging the
moving party’s ability to meaningfully understand, defend

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movant was not personally present or represented by counsel.
(Rodriguez, at p. 984.) Section 1473.7 is not analogous to section
1170.95, because it provides that “[a]ll motions shall be entitled
to a hearing,” without any initial determination of eligibility.
(§ 1473.7, subd. (d).) Section 1170.95, in contrast, does not
provide an automatic right to a hearing. Rodriguez is inapposite.
D. Molina did not have a federal or state constitutional
right to be personally present when the trial court
determined his eligibility under section 1170.95
Molina argues he had a constitutional right to be
personally present when the trial court made its initial
determination of his eligibility. We disagree.
As discussed, “[a] criminal defendant has the right under
the state and federal Constitutions to be personally present and
represented by counsel at all critical stages of the trial.” (Bryant,
supra, 60 Cal.4th at p. 465.) “For purposes of the right to be
present, a critical stage is ‘one in which a defendant’s “ ‘absence
might frustrate the fairness of the proceedings’ [citation], or
‘whenever his presence has a relation, reasonably substantial, to
the fullness of his opportunity to defend against the charge.’ ” ’ ”
(Ibid.)
Again, we conclude that an initial eligibility determination
under section 1170.95 is not a critical stage to which a right of
personal presence attaches. The initial eligibility determination
is a nondiscretionary, legal assessment of uncontested facts in
the petition and record of conviction. It is not, as Molina
against, or knowingly accept the actual or potential adverse
immigration consequences of a plea of guilty or nolo contendere.”
(§ 1473.7, subd. (a)(1).)

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maintains, a “resentencing.” A petitioner’s absence does not
“ ‘ “ ‘frustrate the fairness of the proceedings.’ ” ’ ” (Bryant, supra,
60 Cal.4th at p. 465.)
Molina claims, without explanation, that denying him the
right to be heard before denying him the benefits of section
1170.95 violated his state and federal due process rights. We
reject this argument. If the record of conviction makes clear that
a defendant is statutorily ineligible for relief, no amount of
additional process will change that result, nor will the defendant
have been deprived of anything to which the defendant otherwise
would be entitled.
E. Molina is statutorily ineligible for relief under
section 1170.95
We turn now to the merits of Molina’s petition. Molina
contends that the excerpts of the record of conviction attached to
his petition establish that he is eligible for relief under section
1170.95. We disagree.
As set forth above, a defendant is entitled to relief under
section 1170.95 only if he or she could not have been convicted of
murder under the amendments to the Penal Code enacted
through Senate Bill No. 1437. The import of those amendments
is that, with the exception of a narrowed version of felony murder
in section 189, subdivision (e), a person cannot be convicted of
murder unless he or she “act[s] with malice aforethought.”
(§ 188, subd. (a)(3).) Malice may no longer be “imputed” solely
from the objective fact that the person participated in a crime
during which a foreseeable killing occurred, as was permitted
under the natural and probable consequences doctrine. (Ibid.)
Senate Bill No. 1437 did not redefine the elements of malice,
contrary to Molina’s contention on appeal. Instead, the bill

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changed the circumstances under which a person could be
convicted of murder without a showing of malice.
The jury, however, found that Molina acted with malice.
Molina’s jury was instructed that the elements of murder
included “malice aforethought,” either express or implied. There
were no instructions concerning some other crime from which
malice might be imputed; murder was the only crime on which
the jury was instructed. “We presume the jury understands and
follows the trial court’s instructions.” (People v. Frederickson
(2020) 8 Cal.5th 963, 1026.) Thus, we must conclude that the
jury necessarily found that Molina acted with malice
aforethought, and is not entitled to relief under section 1170.95.
We reject Molina’s argument that the jury was instructed
on the natural and probable consequences doctrine merely
because the instruction for implied malice required the jury to
find that Molina committed an intentional act of which “the
natural consequences . . . are dangerous to human life.” Molina
disregards that the very next instruction defined the requisite
mental state for the killing, namely that Molina acted with
knowledge of the danger and a conscious disregard for human
life. This is the mental state essential to a finding of implied
malice (Smith, supra, 4 Cal.5th at p. 1165), but not required for
natural and probable consequences murder. (See Lee, supra,
49 Cal.App.5th at p. 261 [under natural and probable
consequences doctrine, mens rea of aider and abettor towards
killing is irrelevant.)
Molina argues he was not found to be the actual killer,
was not found to have had intent to kill, and was not found to
have been a major participant in the underlying felony acting
with a reckless disregard for human life. This language appears

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in subdivision (e) of section 189, and pertains to a defendant
charged under a theory of felony murder, that is, “[a] participant
in the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs . . . .” (§ 189, subd. (e).)
Molina was not convicted of felony murder. Felony murder
is premised on an unintended killing taking place during the
commission or attempted commission of a separate, intended
felony. (See Lee, supra, 49 Cal.App.5th at p. 261.) Again,
Molina’s jury instructions did not refer to any crimes apart from
the murder itself. Hence, the elements listed in section 189,
subdivision (e) are inapplicable. Also inapplicable are the cases
Molina cites discussing those elements, all of which concerned
defendants convicted of felony murder. (See People v. Clark
(2016) 63 Cal.4th 522, 611; People v. Banks (2015) 61 Cal.4th 788,
794; People v. Ramirez (2019) 41 Cal.App.5th 923, 926; In re
Taylor (2019) 34 Cal.App.5th 543, 546; In re Bennett (2018)
26 Cal.App.5th 1002, 1026.)
We also observe that an aider and abettor found to have
acted with implied malice may be convicted of murder despite not
being the actual killer or having an intent to kill. (People v.
McCoy (2001) 25 Cal.4th 1111, 1117 [“a person who aids and
abets a crime is guilty of that crime even if someone else
committed some or all of the criminal acts”]; Soto, supra,
4 Cal.5th at p. 970 [implied malice does not require intent to
kill].) Molina’s jury was instructed on both aiding and abetting
liability and implied malice.
Given our conclusion that Molina was found to have acted
with malice, and therefore is ineligible for resentencing under
section 1170.95, we express no opinion on the trial court’s
alternative reasons for denying the petition, namely that Senate

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Bill No. 1437 is unconstitutional or that section 1170.95 does not
apply to convictions of second degree murder based on the
natural and probable consequences doctrine.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WHITE, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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