People v. Zylstra CA4/1

California Court of Appeal · D078309 · 2021-08-31 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Bernardino County · No. FVA801416
Trial judge: Ingrid Adamson Uhler
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Cynthia Aaron, William S. Dato

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:02Z · confidence high

The trial court denied Zylstra’s petition for resentencing under Penal Code section 1170.95, finding she was ineligible for relief as a matter of law because her conviction was based on implied malice murder rather than felony murder or natural and probable consequences. The Court of Appeal affirmed the denial, holding that although the trial court erred by failing to appoint counsel, the error was harmless because Zylstra was not eligible for relief under the statute.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.95 “Defendant was the actual killer. The felony murder and natural and probable consequences theories did not apply to her convictions. She was found guilty of second degree murder based upon implied malice (Watson decision), which is not a basis for resentencing pursuant to PC1170.95.”	de novo	correct	agree with court The appellate court correctly applied the law from People v. Gentile and People v. Lewis, determining that a defendant convicted of implied malice murder as the actual killer is ineligible for resentencing under Senate Bill 1437, which only applies to felony murder or natural and probable consequences liability.
Failure to appoint counsel for the section 1170.95 petition “Applying the principles established by our high court, we will find the trial court erred in failing to appoint counsel. However, we will find the error harmless under any standard because Zylstra in not eligible for relief under section 1170.95 as a matter of law.”	abuse of discretion	error	agree with court The appellate court correctly identified that the trial court violated the requirement established in People v. Lewis to appoint counsel for petitioners under section 1170.95, but correctly applied the harmless error standard from People v. Watson (1956) to find the error did not affect the outcome.

Authorities

relied: People v. Lewis (2021) 11 Cal.5th 952 — Trial courts are required to appoint counsel for petitioners seeking resentencing under section 1170.95, and failure to do so is reviewed for harmless error.
relied: People v. Gentile (2020) 10 Cal.5th 830 — Senate Bill 1437 was enacted to amend the felony murder rule and natural and probable consequences doctrine to ensure murder liability is not imposed on persons who are not the actual killer, did not act with intent to kill, or were not major participants acting with reckless indifference.
relied: People v. Watson (1981) 30 Cal.3d 290 — A person who drives under circumstances demonstrating a willful disregard for human life and unintentionally kills another may be found guilty of implied malice murder (second degree murder).
relied: People v. Watson (1956) 46 Cal.2d 818 — The standard for harmless error review, requiring that the error not have a substantial and injurious effect or influence in determining the jury's verdict.
relied: People v. Verdugo (2020) 44 Cal.App.5th 320 — A trial judge may dismiss a section 1170.95 petition at the prima facie stage if the record of conviction demonstrates the petitioner is not eligible for relief as a matter of law.
relied: People v. Drayton (2020) 47 Cal.App.5th 965 — A trial judge may dismiss a section 1170.95 petition at the prima facie stage if the record of conviction demonstrates the petitioner is not eligible for relief as a matter of law.

The appellate opinion: sound — The opinion is sound because it correctly applies the holding of People v. Lewis regarding the appointment of counsel and the holding of People v. Gentile regarding the scope of Senate Bill 1437. It properly distinguishes implied malice murder from the theories of liability targeted by the statute, leading to a defensible conclusion that the petitioner is ineligible for relief.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

The San Bernardino Superior Court summarily denied Alice Zylstra's Penal Code section 1170.95 resentencing petition without appointing counsel, finding from the record of conviction that she was the actual killer convicted of second degree implied malice (Watson) murder and so failed to make a prima facie showing. The Court of Appeal held the failure to appoint counsel was error under People v. Lewis but harmless under any standard because a Watson implied malice murder conviction of a sole actual killer is categorically outside Senate Bill 1437, and affirmed.

Ruling reviewed	Standard	The court	The model
Summary denial of the section 1170.95 petition at the prima facie stage on the ground that the record of conviction showed Zylstra was the actual killer convicted on an implied malice (Watson) theory, not felony murder or natural and probable consequences “Defendant was the actual killer. The felony murder and natural and probable consequences theories did not apply to her convictions.”	de novo	correct	agree with court The opinion does not expressly name a standard but resolves eligibility 'as a matter of law,' which is a legal question. Senate Bill 1437 by its terms addresses felony murder and natural and probable consequences liability for non-killers; Gentile confirms that purpose. A jury convicted Zylstra of second degree murder for her own driving with no accomplices, so her malice was necessarily personal implied malice under Watson (1981) 30 Cal.3d 290, and Lewis permits courts to consult the record of conviction at the prima facie stage to screen out petitioners ineligible as a matter of law. The reasoning and authorities support the result.
Failure to appoint counsel before denying the petition despite a facially sufficient form petition requesting counsel “Applying the principles established by our high court, we will find the trial court erred in failing to appoint counsel.”	de novo	harmless error (procedure)	agree with court Under People v. Lewis (2021) 11 Cal.5th 952, a trial court must appoint counsel upon a facially sufficient petition before conducting the prima facie review, and failure to do so is state-law error assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818. Because Zylstra's conviction rests on her own implied malice as the actual killer with no accomplices, no argument counsel could make would alter her legal ineligibility, so the court correctly found no reasonable probability of a different outcome. The court's statement that the error was harmless 'under any standard' is accurate given the categorical ineligibility.

Authorities

relied: People v. Lewis (2021) 11 Cal.5th 952 — Trial courts must appoint counsel upon a facially sufficient section 1170.95 petition before prima facie review; the record of conviction may be consulted to screen out petitioners ineligible as a matter of law; failure to appoint counsel is reviewed for prejudice under Watson (1956).
relied: People v. Watson (1981) 30 Cal.3d 290 — A driver whose intoxicated, reckless driving shows conscious disregard for human life may be convicted of second degree murder on an implied malice theory.
relied: People v. Gentile (2020) 10 Cal.5th 830 — Senate Bill 1437 was enacted to amend the felony murder rule and the natural and probable consequences doctrine so that murder liability is not imposed on persons who are not the actual killer, did not intend to kill, or were not major participants acting with reckless indifference.
relied: People v. Watson (1956) 46 Cal.2d 818 — State-law error is harmless unless it is reasonably probable the defendant would have obtained a more favorable result absent the error.
relied: People v. Verdugo (2020) 44 Cal.App.5th 320 — A trial court may deny a section 1170.95 petition at the prima facie stage where the record of conviction shows the petitioner is ineligible for relief as a matter of law (review granted).
relied: People v. Drayton (2020) 47 Cal.App.5th 965 — At the prima facie stage the court may deny a section 1170.95 petition if the record of conviction establishes ineligibility as a matter of law, but should not engage in factfinding.

The appellate opinion: sound — The court correctly applied the then-recent Lewis decision to find error in the failure to appoint counsel and properly assessed prejudice under Watson (1956), and its conclusion that a sole actual killer convicted of implied malice vehicular murder is outside Senate Bill 1437 follows directly from the statutory text and Gentile. The opinion is brief and incorporates the facts by reference to the prior appeal, but the dispositive facts (jury verdict, no accomplices, implied malice theory) are stated and suffice for the result.

How this analysis was made · dispute it

Opinion

Filed 8/31/21 P. v. Zylstra CA4/1 NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078309

Plaintiff and Respondent, v. (Super. Ct. No. FVA801416)

ALICE MARIE ZYLSTRA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alan L. Amann and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent. In 2013, a jury convicted Alice Marie Zylstra of second degree murder arising from a death caused by her reckless driving while intoxicated (Pen. Code,1 § 187, subd. (a)). She was also convicted of vehicular homicide with gross negligence (§ 191.5, subd. (a)). Zylstra was sentenced to an indeterminate term of 15 years to life in prison. Zylstra appealed, and this court affirmed the judgment in an unpublished opinion. (People v. Zylstra (July 14, 2015, D067474) nonpub.

opn.].)2 In 2019, Zylstra filed a petition for resentencing under section 1170.95. In the form petition she alleged she pleaded guilty to a murder charge that was based on either the felony murder rule or the doctrine of natural and probable consequences. The court failed to appoint counsel. The court did review the record of conviction and denied the petition by written order. The court stated: “Court is summarily denying the Petition for Resentencing. Defendant failed to make a prima facie showing that she falls within the provisions of PC1170.95.

“Defendant was the actual killer. The felony murder and natural and probable consequences theories did not apply to her convictions. She was found guilty of second degree murder based upon implied malice (Watson decision), which is not a basis for resentencing pursuant to PC1170.95.”3 Zylstra filed a timely notice of appeal.

1 All further statutory references are to the Penal Code.

2 We have taken judicial notice of the records in case No. D067474.

3 The reference to Watson is People v. Watson (1981) 30 Cal.3d 290, in which the court approved convictions for second degree murder in vehicular homicides where the defendant’s conduct is sufficiently egregious to constitute implied malice.

2 Zylstra contends the order denying her petition should be reversed because the court failed to appoint counsel as required by statute. Since the briefing was completed in this case, the Supreme Court has clarified the law on this issue. (People v. Lewis (2021) 11 Cal.5th 952.) Applying the principles established by our high court, we will find the trial court erred in failing to appoint counsel. However, we will find the error harmless under any standard because Zylstra in not eligible for relief under section 1170.95 as a matter of law. The presence of counsel could not alter Zylstra’s legal status. A conviction for implied malice murder as authorized by the Watson theory of liability does not implicate any of the theories of liability discussed in Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). STATEMENT OF FACTS The facts of the crime are fully discussed in our prior opinion. We see no need to repeat them here. (People v. Zylstra, supra, D067474.) DISCUSSION A. Legal Principles The court in Watson, supra, 30 Cal.3d 290, held that a person who drives under circumstances that demonstrate a willful disregard for human life, and unintentionally kills another person, may be found guilty of implied malice murder (second degree murder). In such cases, the defendant is the actual killer whose liability does not derive from conduct of a perpetrator. Thus, concepts of felony murder or natural and probable consequences from an underlying felony are not relevant. Senate Bill 1437 was enacted to “ ‘amend[ ] the felony murder rule and 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 3 underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Gentile (2020) 10 Cal.5th 830, 842.) When a trial judge reviews a petition for resentencing under section 1170.95, the court may dismiss the petition at the prima facie stage of review if the record of conviction demonstrate the petitioner is not eligible for relief as a matter of law. (People v. Verdugo (2020) 44 Cal.App.5th 320, 329- 330, review granted Mar. 18, 2020 S260493; People v. Drayton (2020) 47 Cal.App.5th 965, 982; People v. Lewis, supra, 11 Cal.5th at pp. 961-963.) As we have observed, the court in Lewis held trial courts are required to appoint counsel in cases such as this. A court’s failure to appoint counsel must be reviewed for prejudice under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. B. Analysis. As the court discussed in People v. Gentile, supra, 10 Cal.5th 830, Senate Bill 1437 was enacted to prevent the imposition of liability on aiders and abettors for murder using the felony murder rule or the natural and probable consequences doctrine. There is no indication the Legislature intended to reduce the liability for actual killers who act with implied malice. Indeed, that would be contrary to the statute. Zylstra’s liability here is based on her own conduct; there were no accomplices and, as we concluded in affirming her conviction, she personally acted with implied malice when she killed the victim. On this record, she is clearly ineligible for relief under Senate Bill 1437. The court’s error in failing to appoint counsel was harmless.

4 DISPOSITION The order denying Zylstra’s petition for resentencing under section 1170.95 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.

Cites, in this corpus

People v. Lewis S260598 · 2021-07-26
People v. Gentile S256698 · 2020-12-17
People v. Watson Crim. 21674 · 1981-11-30
People v. Watson Crim. 5813 · 1956-07-03