Filed 6/17/26 P. v. Delgadillo CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B343979
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XSOA037554)
v.
MANUEL RODRIGUEZ
DELGADILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel J. Lowenthal, Judge. Affirmed.
Nancy Gaynor, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Theresa A. Patterson, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
Defendant Manuel Rodriguez Delgadillo appeals the trial
court’s order denying his petition for resentencing under Penal
Code section 1172.6 at the prima facie stage without ordering an
evidentiary hearing (id., subd. (c)).1 We affirm.
BACKGROUND
In June 1987, Delgadillo shot and killed Jose Luis Olivera.
The People charged Delgadillo with a single count of murder
(§ 187, subd. (a)). They further alleged premeditation (ibid.) and
personal use of a handgun (§ 12022.5, subd. (a)).
The case proceeded to trial in 1994. Four alternative
charges were presented to the jury: first degree murder; second
degree murder; voluntary manslaughter; and involuntary
manslaughter. The allegation that Delgadillo personally used a
handgun was also put to the jury. As they are dispositive of this
appeal, we detail several relevant jury instructions.
As part of CALJIC No. 17.31, the jury was instructed: “The
purpose of the court’s instructions is to provide you with the
applicable law so that you may arrive at a just and lawful
verdict. . . . Disregard any instruction which applies to facts
determined by you not to exist.” As part of CALJIC No. 1.00, the
trial court instructed the jury to “apply the law that I state to
you, to the facts, as you determine them, and in this way arrive
at your verdict and any finding you are instructed to include in
your verdict. [¶] You must accept and follow the law as I state it
to you, whether or not you agree with the law.” (Brackets
omitted.) As part of CALJIC No. 1.01, the jury was instructed:
“Do not single out any particular sentence or any individual point
or instruction and ignore the others. Consider the instructions as
a whole and each in light of all the others.”
1 Undesignated statutory references are to the Penal Code.
2
Turning to the substantive charges, per CALJIC No. 3.31,
the jury was instructed: “In the crime and allegations [sic]
charged in Count 1, namely murder and voluntary manslaughter,
which is a lesser crimes [sic] thereto, there must exist a union or
joint operation of act or conduct and a certain specific intent in
the mind of the perpetrator. Unless such specific intent exists the
crime or allegation to which it relates is not committed. [¶] The
specific intent required is included in the definitions of the crimes
or allegations set forth elsewhere in these instructions.”
(Brackets omitted.)
As part of CALJIC No. 8.10, the jury was instructed:
“Every person who unlawfully kills a human being with malice
aforethought is guilty of the crime of murder . . . . [¶] In order to
prove such crime, each of the following elements must be proved:
[¶] 1. A human being was killed. [¶] 2. The killing was unlawful,
and [¶] 3. The killing was done with malice aforethought.”
(Brackets omitted.) Struck from the form CALJIC No. 8.10 was
any option to convict Delgadillo of murder based on the
commission or attempted commission of a felony inherently
dangerous to human life.2 Pursuant to CALJIC No. 8.11, the jury
was instructed on the meaning of “malice aforethought.” The sole
instruction defining second degree murder was given by way of
CALJIC No. 8.30: “Murder of the second degree is . . . the
2 The trial court struck from the form CALJIC No. 8.10
optional language whereby a person could be guilty of second
degree murder without malice aforethought if the killing
“ ‘occurred during the commission or attempted commission of a
felony inherently dangerous to human life. [Blank to specify
predicate felony] is a felony inherently dangerous to human
life.’ ” (See People v. Hansen (1994) 9 Cal.4th 300, 321–322
(dis. opn. of Mosk, J.) [setting forth contemporary instruction].)
3
unlawful killing of a human being with malice aforethought when
there is manifested an intention unlawfully to kill a human being
but the evidence is insufficient to establish deliberation and
premeditation.”
Pursuant to CALJIC Nos. 8.40 and 8.45, the jury was
instructed on voluntary and involuntary manslaughter,
respectively. As part of the involuntary manslaughter
instruction, the jury was instructed that a killing for purposes of
such offense is unlawful if it occurred “[d]uring the commission of
a misdemeanor which is inherently dangerous to human life,
namely, the offenses of brandishing a weapon and/or assault and
battery.” They then received specific instructions on the elements
of those predicate misdemeanors.
As part of CALJIC No. 8.50, the jury was instructed that
“[t]he distinction between murder and manslaughter is that
murder requires malice while manslaughter does not.” That
instruction continued: “To establish that a killing is murder, and
not manslaughter, the burden is on the People to prove beyond a
reasonable doubt each of the elements of murder . . . .” Finally, as
part of CALJIC No. 8.51, the jury was instructed: “If a person
causes another’s death, while committing a felony inherently
dangerous to human life, the crime is murder. If a person causes
another’s death while committing a misdemeanor inherently
dangerous to human life, the crime is manslaughter.” (Brackets
omitted.)
The jury found Delgadillo guilty of second degree murder
and found true the allegation that he personally used a handgun
in the commission of the offense.
The trial court sentenced Delgadillo to an aggregate term of
17 years to life.
4
In April 2023, Delgadillo filed in propria persona a
checkbox petition for resentencing under section 1172.6
asserting, among other things, that he “could not presently be
convicted of murder . . . because of changes made to Penal Code
§§ 188 and 189, effective January 1, 2019.” The trial court
appointed counsel.
The People filed a brief in opposition to the petition,
attaching, among other things, the jury instructions and
completed verdict form. Delgadillo filed a brief in response. After
conducting a prima facie hearing on the petition pursuant to
section 1172.6, subdivision (c), the trial court declined to set an
evidentiary hearing and denied the petition based on the record
of conviction. This appeal followed.
DISCUSSION
I. Applicable Law and Standard of Review
Section 1172.6 provides an avenue for resentencing of
persons convicted of murder under a theory invalidated by recent
changes to sections 188 and 189. (See § 1172.6, subds. (a), (e).)
One such invalidated theory is second degree felony murder in
which malice was imputed to the defendant based on his
commission of a felony inherently dangerous to human life.
(People v. Nino (2025) 111 Cal.App.5th 844, 854–855.)
“[T]he path to resentencing under section 1172.6 involves
three stages. It begins with a facially valid petition that entitles
petitioner to counsel, continues with asking whether petitioner
has made a prima facie case for relief, and, if so, proceeds to an
evidentiary hearing on the ultimate question of whether
petitioner should be resentenced.” (People v. Patton (2025)
17 Cal.5th 549, 562 (Patton).)
5
Because Delgadillo’s petition was denied after he was
appointed counsel but without an evidentiary hearing, we are
concerned here only with the second, or prima facie, stage.
A trial court may deny a petition at the prima facie stage
“ ‘ “if the record, including the court’s own documents, ‘contain[s]
facts refuting the allegations made in the petition.’ ” ’ ” (Patton,
supra, 17 Cal.5th at p. 563.) Put another way, if the record of
conviction forecloses the possibility that the defendant was
convicted under an invalidated theory, the petition is properly
denied without an evidentiary hearing. (See id. at pp. 565–566,
569.)
The record of conviction a court may consider includes the
jury instructions and verdict forms. (People v. Harden (2022)
81 Cal.App.5th 45, 50 (Harden).)
“We independently review a trial court’s determination on
whether a petitioner has made a prima facie showing.” (Harden,
supra, 81 Cal.App.5th at p. 52.)
II. Analysis
Delgadillo contends his record of conviction does not
foreclose the possibility he was convicted under an invalid second
degree murder theory. This contention is premised on the notion
that a juror may have voted to convict based on the following
language from CALJIC No. 8.51 in isolation from all others: “If a
person causes another’s death, while committing a felony
inherently dangerous to human life, the crime is murder.” We
reject Delgadillo’s contention.
As a preliminary matter, it is reasonable to presume that
this language was retained in the form CALJIC No. 8.51
instruction in error. The trial court deliberately struck from the
CALJIC No. 8.10 definition of murder language that would have
6
permitted the jury to render a murder verdict based on the
commission of an inherently dangerous felony. (See fn. 2, ante.)
Moreover, when the court did instruct on a homicide theory
(voluntary manslaughter) predicated on the commission of a
different crime inherently dangerous to human life, the court
both specified the predicate misdemeanors (brandishing a
weapon and assault and battery) in the homicide instruction and
gave separate instructions defining those misdemeanors.
Nowhere did the instructions specify or instruct on any felonies
by which the jury could have convicted Delgadillo of second
degree felony murder.
Delgadillo argues any possibility a juror relied exclusively
on the CALJIC No. 8.51 language, no matter how remote,
precludes summary disposition of his petition. For this
proposition, he relies on People v. Curiel (2023) 15 Cal.5th 433,
438 (Curiel). His reliance is misplaced.
Curiel concerned a defendant convicted of first degree
murder by a jury fully instructed on the now-invalidated “natural
and probable consequences” theory of first degree felony murder.
(Curiel, supra, 15 Cal.5th at pp. 446–447.) The People argued the
trial court was nevertheless correct to deny Curiel’s resentencing
petition at the prima facie stage because the jury found, as part
of a gang-murder special-circumstance allegation, that Curiel
“ ‘intended to kill.’ ” (Id. at p. 447.) Thus, the People argued, the
jury found express malice and therefore did not rely on the
invalidated natural and probable consequences doctrine to
impute malice. (Ibid.) The Supreme Court rejected this argument
because “intent to kill” was not sufficient “by itself to establish
any valid theory of liability.” (Id. at p. 463.) It explained that both
direct aiding and abetting and implied malice theories for murder
7
each had additional elements, concluding “[a] finding of intent to
kill does not, standing alone, cover all of the required elements. It
does not itself show that a petitioner like Curiel is liable for
murder under any valid theory.” (Ibid.) While the jury’s “intent to
kill” ruling was insufficient in Curiel, the court recognized “we
may look to the jury’s verdicts, and the factual findings they
necessarily reflect, to determine whether the record of conviction
refutes the factual allegations in [a section 1176.2] petition.”
(Id. at p. 465.)
In Curiel there was no irregularity in the jury instructions,
leaving only the question of whether the factual findings the
verdict “necessarily reflect[ed]” satisfied a still-valid theory of
Curiel’s conviction. (Curiel, supra, 15 Cal.5th at p. 465.) Because
the instructions were clear, there was no doubt as to what those
factual findings were.
Here, the extraneous language in CALJIC No. 8.51
introduces a potential ambiguity as to what findings the verdict
necessarily reflected. Both before and after Curiel, Courts of
Appeal considering such issues in the section 1172.6 context have
applied the same standard the United States Supreme Court and
California Supreme Court apply in the instructional error context
when considering whether a jury relied on an improper theory3:
whether there is a reasonable likelihood the jury understood its
instructions to support a conviction on a now-invalid theory of
murder. (See People v. Rushing (2025) 109 Cal.App.5th 1025,
1032 [finding no “ ‘reasonable possibility’ ” jury relied on
extraneous instruction on invalidated theory of felony murder];
3 See Estelle v. McGuire (1991) 502 U.S. 62, 72; People v.
Clair (1992) 2 Cal.4th 629, 663.
8
People v. Allen (2023) 97 Cal.App.5th 389, 397 [applying
“reasonable likelihood test”]; People v. Estrada (2022)
77 Cal.App.5th 941, 947–948 [same].)4
Applying that test here, there is no reasonable likelihood
the jury convicted Delgadillo based on the stray language in
CALJIC No. 8.51. “ ‘It is fundamental that jurors are presumed to
be intelligent and capable of understanding and applying the
court’s instructions.’ ” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 433.) We cannot presume the jury
misunderstood or failed to follow the court’s instructions on the
law. (People v. Buenrostro (2018) 6 Cal.5th 367, 431.)
To convict Delgadillo of murder based on CALJIC No. 8.51
alone, a juror would have needed to ignore the directive not to
“single out any particular sentence or any individual point or
instruction and ignore the others” and to “[c]onsider the
instructions as a whole and each in light of all the others.”
Interpreting CALJIC No. 8.51 to dispense with the additional
elements for murder specified in CALJIC No. 8.10 would amount
to ignoring CALJIC No. 8.10. Convicting on this basis would also
run afoul of CALJIC No. 3.31, which required the jury to find
“specific intent” as “included in the definitions” of the applicable
“crimes . . . set forth elsewhere in these instructions.” (Brackets
omitted.) CALJIC No. 3.31 established the primacy of
CALJIC No. 8.10 over CALJIC No. 8.51, as the former “defined”
4 The People recently raised to our Supreme Court the
question of whether the “reasonable likelihood” standard applies
at the prima facie hearing on a section 1172.6 petition. (See
People v. Lopez (2026) 19 Cal.5th 639, 670.) The court declined to
address it as outside the scope of the issues on appeal. (Ibid.)
9
murder, whereas the latter merely “distinguished” murder and
manslaughter.
Moreover, to convict Delgadillo of murder based on
CALJIC No. 8.51 alone, a juror would have needed to come up
with a predicate felony inherently dangerous to human life on his
own. Delgadillo offers that a juror could have surmised “waving a
gun around in a way that it goes off and shoots someone in the
head” is a felony based on the trial court’s instruction that
brandishing—which includes “unlawfully us[ing] [a firearm] in
any fight or quarrel”—is a misdemeanor. But such rank
speculation about law not addressed in the instructions would go
against the trial court’s admonishment that the instructions
“provide you with the applicable law” and to “apply the law that I
state to you.”
In any event, even if the reasonable likelihood test did not
apply, we would still reach the same conclusion. The jury did not
simply convict Delgadillo of “murder,” as Delgadillo contends
CALJIC No. 8.51 invited it to do. Instead, it convicted Delgadillo
of “MURDER IN THE 2nd DEGREE,” under CALJIC No. 8.30.
The only instruction by which it could have reached this verdict
required each juror to conclude Delgadillo killed “with malice
aforethought” based on a “manifested . . . intention [to]
unlawfully . . . kill” Olivera. This theory of second degree murder
remains valid today. (§ 187, subd. (a), § 188, subd. (a)(1), § 189,
subd. (b).)
10
DISPOSITION
The trial court’s order denying Delgadillo’s petition for
resentencing pursuant to section 1172.6 is affirmed.
RICHARDSON, J.
WE CONCUR:
CHAVEZ, Acting P. J.
GOORVITCH, J.
11