People v. Calderon CA2/5 ( 2022 )

Filed 4/19/22 P. v. Calderon CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B312516
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA033836)
v.
ROLANDO CALDERON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee, Jr. and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
Defendant Rolando Calderon appeals from the trial court’s
denial of his Senate Bill No. 1437 and Penal Code section
1170.951 petition for resentencing. He contends the court erred
in summarily denying his petition without appointing counsel to
represent him or allowing briefing. We affirm.
II. BACKGROUND
A jury convicted defendant of two counts of willful,
deliberate, and premeditated attempted murder. (§§ 664/187,
subd. (a).) The jury found true gang and firearm allegations.
(§§ 186.22, subd. (b)(1); 12022.53, subds. (d) & (e)(1).) The trial
court sentenced defendant to two consecutive life terms with 15-
year minimum parole eligibility dates, consecutive to 25 years to
life, consecutive to 20 years. On March 6, 2003, a prior panel of
this division affirmed defendant’s judgment. (People v. Calderon
(Mar. 6, 2003, B157399) [nonpub. opn.].)
On April 1, 2021, defendant filed a petition for resentencing
pursuant to Senate Bill No. 1437 and section 1170.95. In his
petition, defendant requested the trial court appoint counsel for
him “during resentencing.” On April 14, 2021, without the
prosecution’s or defendant’s presence, and without appointing
counsel for defendant, the court denied defendant’s petition. It
ruled that defendant’s petition did not comply with subdivision
(a) of section 1170.95 because it did not attach page two of the
form petition and thus did not include the allegations that the
prosecution proceeded under a theory of felony murder or murder
1 All further statutory references are to the Penal Code.
2
under the natural and probable consequences doctrine, he was
convicted of first or second degree murder by verdict or plea, and
he could not now be convicted of first or second degree murder
due to legislative changes to sections 188 and 189.
“[T]o avoid a needless resubmission,” however, the trial
court also decided the petition on the merits.2 It reviewed the
case file and the appellate opinion of the prior panel of this
division that affirmed defendant’s judgment. The court ruled
that defendant’s attempted murder convictions did not, as a
matter of law, qualify for relief under section 1170.95 and,
accordingly, defendant was ineligible for section 1170.95 relief.
III. DISCUSSION
On October 5, 2021, during the pendency of this appeal, the
Governor signed Senate Bill No. 775 which amended section
1170.95 to permit resentencing of certain persons convicted of
attempted murder under a natural and probable consequences
theory. (§ 1170.95, subd. (a); see Sen. Bill No. 775 (2021–2022
Reg. Sess.), as amended Oct. 5, 2021, p. 3; Stats. 2021, ch. 551,
§§ 1–2.) Section 1170.95’s amendments became effective
January 1, 2022.
2 We note that pursuant to section 1170.95, subdivision
(b)(2), the court could have denied defendant’s petition without
prejudice based on the missing page two. Subdivision (b)(2)
provides: “If any of the information required by this subdivision
is missing from the petition and cannot be readily ascertained by
the court, the court may deny the petition without prejudice to
the filing of another petition and advise the petitioner that the
matter cannot be considered without the missing information.”
3
After the Governor signed Senate Bill No. 775, the parties
filed letter briefs. Defendant asserts that Senate Bill No. 775
“‘[c]larifies that persons who were convicted of attempted murder
or manslaughter under a theory of felony murder and the natural
probable consequences doctrine are permitted the same relief as
those persons convicted of murder under the same theories.’
(Sen. Bill No. 775 (2020–2021 Reg. Sess.) at § 1(a).)” Defendant
contends we should remand to the trial court because the court
summarily denied his petition on the now erroneous ground that
he was convicted of attempted murder.
The Attorney General acknowledges that Senate Bill
No. 775 extends section 1170.95’s provisions to attempted murder
convictions and concedes the trial court erred in denying
defendant’s petition without appointing counsel for defendant
(see People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis) [“the
statutory language and legislative intent of section 1170.95 make
clear that petitioners are entitled to the appointment of counsel
upon the filing of a facially sufficient petition (see § 1170.95,
subds. (b), (c))”])3, but argues the error was harmless because
defendant “could not have been convicted of attempted murder
under any theory of liability affected by Senate Bill [No.] 1437
[presumably Senate Bill No. 775], and indeed was necessarily
convicted under a theory of actual malice . . . .” We agree that
any error was harmless.
The erroneous failure to appoint counsel under section
1170.95 is reviewed for prejudice under People v. Watson (1956)
46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 957–958.)
Under that standard, defendant has the burden to show a
3 We do not decide whether defendant’s petition was facially
sufficient. As noted above, it was missing page two.
4
reasonable probability that he would have obtained a more
favorable result if the trial court had appointed counsel. (Id. at
p. 974.) A court’s error in failing to appoint counsel under section
1170.95 is harmless when the jury was not instructed on a
natural and probable consequences theory. (See People v. Daniel
(2020) 57 Cal.App.5th 666, 677 [error in not appointing counsel
under section 1170.95 was harmless because the jury was not
instructed on felony murder or the natural and probable
consequences doctrine], review dismissed, cause remanded
Dec. 1, 2021, No. S266336.) Because the trial court did not
instruct the jury on the natural and probable consequences
doctrine,4 any error in failing to appoint counsel was harmless.
Likewise, because defendant was not convicted of
attempted murder under a natural and probable consequences
theory and was thus ineligible for relief under section 1170.95,
any error in summarily denying his petition without allowing
briefing was harmless. (See People v. Edwards (2020) 48
Cal.App.5th 666, 675 [because the defendant did not fall within
the provisions of section 1170.95 as a matter of law, any error in
failing to allow briefing was “harmless under any standard of
review [citations]”], review dismissed Jan. 5, 2022, No. S262481.)
4 The section 12022.53 instruction included natural and
probable consequences language; the attempted murder
instructions and the instructions defining principals and aiding
and abetting did not. Section 1170.95 does not address
attempted murder on a felony murder theory, and the jury was
not instructed on attempted felony murder.
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IV. DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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