Opinion
B301642
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. RAUL GARCIA MOLINA, Defendant and Appellant.
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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (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 Code 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).
Undesignated statutory citations are to the Penal Code.
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.
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.)
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. 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.
Rodriguez was not apprehended until 1994, which was the primary reason the trial took place a decade after the commission of the offense.
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.
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] disregard for human life."
The reporter's transcript said "conscience" instead of conscious." The discrepancy is not at issue in this appeal.
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, 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. 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."
Proposition 7 increased the penalties for first and second degree murder. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 250.)
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.
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. Lee (2020) 49 Cal.App.5th 254, 261 (Lee), fn. omitted.) "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.)
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."
"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, 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.)
"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).)
"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 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.)
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 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.) 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 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.)
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.
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 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.
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.
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 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).)
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.)
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 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 1473.7 when the 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.
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 against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." (§ 1473.7, subd. (a)(1).)
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 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 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 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 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.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.