Penal Code 1170.94 did not abolish implied malice for a DUI Murder

People v. Roldan (Cal. Ct. App., Oct. 30, 2020, No. B298570) 2020 WL 6375578, at *1

Summary: 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. He also requested 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 denied the petition without appointing counsel or holding an evidentiary hearing.

Roldan appealed claiming  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. The Court of appeal disagreed and affirmed the tail court’s ruling.

Facts: Roldan 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.  He was sentenced  to 19 years to life plus six months. (People v. Roldan (2011) 197 Cal.App.4th 920, 922, 129 Cal.Rptr.3d 45.)

SB 1437 and the “natural and probable consequences doctrine.”

 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 to vacate a murder conviction under the natural and probable consequences doctrin. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677; see also People v. Lewis (2020) 43 Cal.App.5th 1128, 1134, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598.) The provisions of SB 1437 became effective on January 1, 2019.

Roldan filed a form petition under section 1170.95, asserting  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. He asked for  appointment of counsel to assist in the resentencing process.

Legal Principles and analysis

Imputed malice and second-degree murder

“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, 142 Cal.Rptr.3d 893, 278 P.3d 1242.)

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.” ’  ‘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. [¶] A nontarget offense is a ‘natural and probable consequence’ of the target offense if, judged objectively, the additional offense was reasonably foreseeable. The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. 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, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

Before  SB 1437, an aider and abettor who lacked express malice but 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, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

SB 1437 eliminated the natural and probable consequences doctrine for murder entirely. SB 1437 also 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).)

Use of record of conviction and court file to determine prima facie case

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. When the record shows as a matter of law that the petitioner is not eligible for relief, it defeats a prima facie case.

Second degree DUI murder under actual implied malice

Roldan was found guilty of second degree DUI murder, called Watson murder, after People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279 (Watson), which held that an intoxicated driver who causes death may be charged with second degree murder.

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, 142 Cal.Rptr.3d 893, 278 P.3d 1242.) “Malice may be either express or implied. 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, 179 Cal.Rptr. 43, 637 P.2d 279.)

Roldan was  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

The doctrine of implied malice has a “natural and probable consequences” element. As stated by our Supreme 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, 142 Cal.Rptr.3d 893, 278 P.3d 1242)

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. Unlike 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, 233 Cal.Rptr.3d 1, 417 P.3d 662 [knowledge of danger and conscious disregard for human life is essential to a finding of implied malice]; People v. Lee (2020) 49 Cal.App.5th 254, 261, 263 Cal.Rptr.3d 19 [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.

Right to counsel under 1170.95 requires a prima game is showing

The righ 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, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598; cf. People v. Verdugo (2020) 44 Cal.App.5th 320, 328, 257 Cal.Rptr.3d 510, review granted Mar. 18, 2020, S260493). Here, Roldan failed to demonstrate eligibility under the statute.