P. v. Roldan

Filed 10/30/20; THE SUPREME COURT OF CALIFORNIA HAS GRANTED
REVIEW
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARLON MAFREND ROLDAN,
Defendant and Appellant.
B298570
(Los Angeles County
Super. Ct. No. NA080558)
APPEAL from an order of the Superior Court of Los
Angeles County, Judith Meyer, Judge. Affirmed.
Mary Jo Strnad, 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, Charles S. Lee and Ryan M. Smith, Deputy
Attorneys General, for Plaintiff and Respondent.

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Marlon Roldan was convicted of second degree murder
under an implied malice theory for killing a person while driving
under the influence of alcohol (DUI). He filed a petition in the
superior court for resentencing under Penal Code section 1170.95
and requested the appointment of counsel. The court found he
was ineligible for relief as a matter of law because he was
convicted under a theory of direct rather than vicarious liability.
The court therefore denied the petition without appointing
counsel or holding an evidentiary hearing.
Roldan contends that Penal Code section 1170.95 should
apply to his conviction for DUI murder, and he should have been
appointed counsel to assist with his petition. We disagree with
both contentions, and thus affirm.
BACKGROUND
On the evening of December 15, 2008, Roldan consumed
several alcoholic drinks at a party, then drove his van toward his
home but fell asleep at the wheel, crossed a center line, and
collided with an SUV traveling in the opposite direction, killing a
passenger in the SUV and injuring the driver. He was convicted
of second degree murder, gross vehicular manslaughter while
intoxicated, DUI causing injury, causing injury while driving
with a 0.08 percent blood-alcohol concentration, driving with a
suspended license, and failing to provide evidence of financial
responsibility, with a finding that he inflicted great bodily injury
on the SUV’s driver. The court sentenced him to 22 years to life
plus six months in prison. We affirmed the conviction on appeal
but reduced the sentence to 19 years to life plus six months.
(People v. Roldan (2011) 197 Cal.App.4th 920, 922.)

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In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437), which “amend[ed] . . . the
natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1(f).)
SB 1437 added Penal Code section 1170.95,1 which
establishes a procedure by which an individual convicted of
murder under the natural and probable consequences doctrine
can seek vacation of that conviction and resentencing. (Stats.
2018, ch. 1015, § 4, pp. 6675-6677; see also People v. Lewis (2020)
43 Cal.App.5th 1128, 1134, review granted Mar. 18, 2020,
S260598.) The provisions of SB 1437 became effective on
January 1, 2019.
On March 22, 2019, Roldan filed a form petition under
section 1170.95, checking boxes on the form indicating that his
murder conviction was based on the natural and probable
consequences doctrine, he could not now be convicted of murder
due to changes made to section 188, and he sought appointment
of counsel to assist in the resentencing process.
The resentencing court summarily denied Roldan’s petition
without appointing counsel, finding he was ineligible for relief
because he had not been prosecuted under any theory covered
under section 1170.95.
DISCUSSION
1 Undesignated statutory references will be to the Penal
Code.

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Roldan contends he made a prima facie showing of
entitlement to relief under section 1170.95, and the court erred
by denying him appointed counsel to support his showing. We
disagree with both contentions.
I. Legal Principles
“A conviction for murder requires the commission of an act
that causes death, done with the mental state of malice
aforethought (malice).” (People v. Gonzalez (2012) 54 Cal.4th
643, 653.)
Before SB 1437, malice could be imputed to an aider and
abettor under the natural and probable consequences doctrine.
“ ‘ “A person who knowingly aids and abets criminal conduct is
guilty of not only the intended crime [target offense] but also of
any other crime the perpetrator actually commits [nontarget
offense] that is a natural and probable consequence of the
intended crime.” ’ [Citations.] ‘Thus, for example, if a person
aids and abets only an intended assault, but a murder results,
that person may be guilty of that murder, even if unintended, if it
is a natural and probable consequence of the intended assault.’
[Citation.] [¶] A nontarget offense is a ‘natural and probable
consequence’ of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor
actually foresaw the nontarget offense. [Citation.] Rather,
liability ‘ “is measured by whether a reasonable person in the
defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the
act aided and abetted.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155,
161-162.)

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Thus, before SB 1437, an aider and abettor who lacked
express malice but merely engaged in activity of which murder
was a natural and probable consequence could have implied
malice imputed to him or her, and could therefore be convicted of
second degree murder. (People v. Chiu, supra, 59 Cal.4th at p.
164.)
On September 11, 2018, Governor Brown signed SB 1437
into law, which eliminated the natural and probable
consequences doctrine for murder entirely.
A primary purpose of SB 1437 was to align a person’s
culpability for murder with his or her mens rea. (See Stats. 2018,
ch. 1015, § 1, subd. (g).) To effectuate that purpose, SB 1437
amended section 188 to state that “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
SB 1437 also added section 1170.95, which permits “[a]
person convicted of . . . murder under a natural and probable
consequences theory” to petition the sentencing court to vacate
the conviction and resentence on any remaining counts if the
person could not be convicted of murder under the new section
188. (§ 1170.95, subd. (a).) A petition for relief under section
1170.95 must include: “(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 conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of this information is missing “and cannot be
readily ascertained by the court,” the court may deny the petition
without prejudice. (§ 1170.95, subd. (b)(2).)

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If the petition contains the required information, the court
must “review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of [section 1170.95].” (§ 1170.95, subd. (c).) If the
petitioner has made this initial prima facie showing, he or she is
entitled to appointed counsel, if requested, and the prosecutor
must file a response, and the petitioner may file a reply.
(§ 1170.95, subd. (c).) The court then reviews the petition a
second time. If it concludes in light of this briefing that the
petitioner has made a prima facie showing of entitlement to
relief, it must issue an order to show cause and hold an
evidentiary hearing to determine whether to vacate the murder
conviction and recall the sentence and resentence the petitioner
on any remaining counts. (Id. at subds. (c) & (d)(1).)
We review de novo whether the trial court properly
interpreted and fulfilled its duty under the statute. (See Greene
v. Marin County Flood Control & Water Conservation Dist. (2010)
49 Cal.4th 277, 287.)
II. Analysis
Roldan contends summary denial of his petition was made
prematurely and without first providing him a fair opportunity to
respond to the trial court’s erroneous conclusion that he was not
convicted under a natural and probable consequences theory.
To determine whether a petitioner has made a prima facie
case for relief under section 1170.95, a trial court may look to the
record of conviction and the court file. The contents of the record
of conviction defeat a prima facie showing when the record shows
as a matter of law that the petitioner is not eligible for relief.
The record of conviction in this case demonstrates that
Roldan was found guilty of second degree DUI murder, called

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Watson murder, after People v. Watson (1981) 30 Cal.3d 290
(Watson), which held that an intoxicated driver who causes death
may be charged with second degree murder.
As stated above, a conviction for murder requires the
commission of an act “done with the mental state of malice
aforethought (malice).” (People v. Gonzalez, supra, 54 Cal.4th at
p. 653.) “Malice may be either express or implied. [Citation.] . . .
Malice is implied when a person willfully does an act, the natural
and probable consequences of which are dangerous to human life,
and the person knowingly acts with conscious disregard for the
danger to life that the act poses. . . . [¶] The law recognizes two
degrees of murder. . . . A person who kills unlawfully with
implied malice is guilty of second degree murder.” (Ibid.)
Malice may be implied when a person willfully drives under
the influence of alcohol. (Watson, supra, 30 Cal.3d at p. 294.)
Roldan was therefore convicted under a theory of actual
implied malice, not malice imputed under the natural and
probable consequences doctrine, and thus failed to meet the
threshold requirement of showing he was convicted under a
natural and probable consequences theory.2
Roldan argues he was, in fact, convicted under “a natural
and probable consequences theory,” because Watson murder itself
is a natural and probable consequences theory. We disagree.
It is true that the doctrine of implied malice has a “natural
and probable consequences” element. As stated by our Supreme
2 Nothing in the record suggests, and Roldan does not
claim, that jury instructions or closing argument on the non-
murder charges either pertained to the natural and probable
consequences doctrine or confused the jury as to the
requirements for a finding of implied malice.

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Court, “[m]alice is implied when a person willfully does an act,
the natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious
disregard for the danger to life that the act poses.” (People v.
Gonzalez, supra, 54 Cal.4th at p. 653, italics added.)
But SB 1437 removed the natural and probable
consequences doctrine as a basis for a murder conviction only
insofar as it applied to aider and abettor liability. As discussed
above, that liability arose when “a reasonable person in the
defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the
act aided and abetted.” (People v. Chiu, supra, 59 Cal.4th at p.
162, italics added.) In contrast to this vicarious liability, under
which the mens rea of an aider and abettor towards the killing is
irrelevant, the doctrine of implied malice requires that the
perpetrator actually appreciate that death is the natural and
probable consequence of his or her actions, and further requires
that the perpetrator consciously disregard that danger. (See
People v. Smith (2018) 4 Cal.5th 1134, 1165 [knowledge of danger
and conscious disregard for human life is essential to a finding of
implied malice]; People v. Lee (2020) 49 Cal.5th 254, 261 [the
natural and probable consequences doctrine is not an implied
malice theory].) SB 1437 did nothing to remove implied malice as
a basis for a second degree murder conviction.
Roldan argues remand is necessary because the trial court
could not determine whether or not he was entitled to relief
without permitting the statutory process to take place, and he
was denied an opportunity to counter the court’s misconceptions
and establish an appellate record. We disagree.

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The right to counsel under section 1170.95 does not attach
until the petitioner makes a prima facie showing of eligibility
under the statute (People v. Lewis, supra, 43 Cal.App.5th 1128,
1139-1140, review granted Mar. 18, 2020, S260598; cf. People v.
Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,
2020, S260493). Roldan failed to demonstrate eligibility under
the statute. His arguments contesting that failure have all been
fairly presented by his appellate counsel, and an appellate record
preserved.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
BENDIX, Acting P. J.
SINANIAN, 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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