People v. Lish CA4/3

Filed 9/30/20 P. v. Lish CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059179

v. (Super. Ct. No. 12NF0792)

DUSTIN DAVID LISH, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Defendant Dustin David Lish was driving intoxicated when he caused a head-on collision and killed another driver. He was convicted of second degree murder (see People v. Watson (1981) 30 Cal.3d 290 (Watson)). We affirmed the conviction in People v. Lish (May 14, 2020, G056801) [nonpub. opn.]. On March 14, 2020, defendant filed a petition for resentencing (Petition) under Penal Code section 1170.95 (section 1170.95) (all further statutory references are to this code), which was enacted as part of Senate Bill 1437 (SB 1437). The trial court found defendant was statutorily ineligible for resentencing under section 1170.95 and denied the Petition. In relevant part, the trial court’s minute order explained: “By it’s plain language, SB 1437 does not apply to implied malice murder where the petitioner was the actual killer. “Petitioner argues that the use of term ‘natural and probable’ in CALCRIM 520, which delineates liability for second degree murder upon express malice and implied malice, brings the statute under the umbrella of SB 1437. The Court is not persuaded. “CALCRIM 520 requires the People prove that the petitioner committed an act that cause the death of another with malice aforethought: ‘There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The petitioner acted with implied malice if, (1) he intentionally committed an act; (2) the natural and probable consequence of the act were dangerous to human life; (3) at the time he acted, he knew his act was dangerous to human life; and (4) he deliberately acted with conscious disregard for human life. “SB 1437 eliminated vicarious murder liability of aiders and abettors of less-serious target crimes. It did not eliminate implied malice murder for the actual killer. The use of the term ‘natural and probable’ in CALCRIM 520 is unrelated to the NPCD [natural and probable consequences doctrine] addressed in SB 1437.