Filed 11/4/26 P. v. Espinoza CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B337240
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA172626)
JESUS ESPINOZA, OPINION ON REMAND
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, H. Clay Jacke II, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and
Charles C. Ragland, Chief Assistant Attorneys General, Susan
Sullivan Pithey, Assistant Attorney General, Stephanie C.
Brenan, Kenneth C. Byrne and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In 2002, defendant and appellant Jesus Espinoza
(Espinoza) was convicted of second degree murder. Twenty years
later, he filed a petition for resentencing under Penal Code
section 1172.6.1 The trial court denied the petition, finding that
Espinoza had not made a prima facie showing of entitlement to
relief. In an opinion filed on February 25, 2025, this court
affirmed the order. (People v. Espinoza (Feb. 25, 2025, B337240)
[nonpub. opn.], review granted Apr. 30, 2025, S289867,
transferred June 24, 2026.) The California Supreme Court
granted review and, on June 24, 2026, transferred the case with
directions to vacate the prior decision and reconsider the cause in
light of People v. Lopez (2026) 19 Cal.5th 639 (Lopez).
After considering the parties’ supplemental briefs, we again
affirm.
BACKGROUND
I. Facts2
On June 23, 1998, Maria Olivares (Olivares), her son Alex
Perez (Perez), and Perez’s girlfriend Lucy Alvarado (Alvarado),
were outside of their house when Espinoza’s younger brother,
1 All statutory references are to the Penal Code unless
otherwise stated.
2 We provide these facts, drawn from a previous
nonpublished opinion in this matter, for context only. “They do
not constitute factual findings for purposes of the present
petition. [Citation.]” (Lopez, supra, 19 Cal.5th at p. 649, fn. 2.)
2
Samuel Espinoza (Samuel),3 and another youth walked past the
home in the direction of Espinoza’s residence. (People v. Espinoza
(Sept. 23, 2003, B160042) [nonpub. opn.] 2003 WL 22183768, at
p. *2.)
“Olivares saw Samuel and his companion looking at
[Perez]. [Perez] asked, ‘What’s up[?]’ and asked why they were
looking at him. Samuel and the other youth did not answer.
Alvarado saw [Perez] get up and look at Samuel and his
companion, who looked back. [Perez] and Samuel were ‘mad-
dogging’ or giving hard looks to each other. Alvarado heard
[Perez] ask, ‘What,’ as if to ask what they were looking at, and
the two youths walked on. [Perez] did not pull out a gun and did
not threaten to kill anyone.
“About 10 or 15 minutes later, Samuel and [Espinoza]
returned. Samuel was carrying a pistol and [Espinoza] was
carrying a rifle, each holding his weapon at his side as they
walked toward Olivares’s house. When Olivares saw them, she
observed that each weapon was pointed toward the inside of her
house. [Perez] immediately went inside. He then came out of the
residence, pushing his mother aside, and approached [Espinoza
and Samuel], exchanging words with them and appearing angry.
Olivares asked [Espinoza] what was the problem. [Espinoza],
who by that time was pointing his gun at [Perez], responded that
[Perez] had offended Samuel. Alvarado asked [Espinoza and
Samuel] why they were there, and [Espinoza] angrily replied,
either to her or to Olivares, that [Perez] had put a gun to
Samuel’s head. Olivares unsuccessfully tried to push [Perez]
3 Because Espinoza and his brother share the same last
name, we refer to Samuel by his first name to avoid confusion.
3
back inside. She heard him say to [Espinoza and Samuel], in a
normal tone of voice, ‘Come on.’
“Samuel fired twice at [Perez], and [Espinoza and Samuel]
fled. [Perez] died of a single gunshot wound to the chest.”
(People v. Espinoza, supra, B160042, 2003 WL 22183768, at p. *2,
fn. omitted.)
Conflicting evidence was presented concerning whether
Perez was carrying a gun and whether he fired it. (People v.
Espinoza, supra, B160042, 2003 WL 22183768, at pp. *2–*3.)
Gunshot residue tests on Perez’s hands were positive. (Id. at
p. *3.) Samuel, who was 16 years old at the time of the shooting,
testified that he “was afraid [Perez] was going to kill him” and
“fired one or two shots in defense of himself and [Espinoza].” (Id.
at p. *4.)
II. Procedural History
A. Trials and direct appeals
In 1998, Espinoza and Samuel were charged by information
with Perez’s murder (§ 187, subd. (a)), as well as various firearm
enhancements. Both Espinoza and Samuel, who were tried
together before separate juries, were convicted of second degree
murder. (People v. Espinoza (Jan. 28, 2002, B139257) [nonpub.
opn.] 2002 WL 104255, at p. *1.) This court reversed the
convictions on direct appeal because the trial court had failed to
instruct on heat of passion. (Id. at p. *5.)
Espinoza and Samuel were retried in 2002. The trial court
instructed the jury on murder liability, including that a second
degree murder conviction required either (1) “inten[t] unlawfully
to kill a human being” (express malice) or (2) “an intentional
act[,]” resulting in death, “the natural consequences of [which]
are dangerous to human life” and which “was deliberately
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performed with knowledge of the danger to and with conscious
disregard for human life” (implied malice). (See CALJIC Nos.
8.30, 8.32.)
The jury was not instructed on the felony-murder rule or
the natural and probable consequences doctrine. It was
instructed on aiding and abetting. (See CALJIC Nos. 3.00, 3.01.)
Specifically, the trial court explained that “[a] person aids and
abets the commission of a crime when he, with knowledge of the
unlawful purpose of the perpetrator, and with the intent or
purpose of committing or encouraging or facilitating the
commission of the crime and by act or advice aids, promotes,
encourages or instigates the commission of the crime.” “Mere
presence at the scene of a crime” or “[m]ere knowledge that a
crime is being committed and the failure to prevent it does not
amount to aiding and abetting.” “Persons who are involved in
committing a crime[,]” including “those who aid and abet the
commission of the crime[,]” are “referred to as principals in that
crime. Each principal, regardless of the extent or manner of
participation[,] is equally guilty.”
Espinoza and Samuel were again convicted of second
degree murder. The jury found true the allegations that
Espinoza personally used a firearm within the meaning of section
12022.5, subdivision (a)(1), and section 12022.53, subdivision (b).
Among other enhancements, the jury found true that Samuel
personally and intentionally discharged a firearm causing Perez’s
death (§ 12022.53, subd. (d)). The trial court sentenced Espinoza
to an aggregate term of 25 years to life in prison.
On direct appeal, this court struck the section 12022.5
finding, remanded to correct technical sentencing errors, and
5
otherwise affirmed the judgment. (People v. Espinoza, supra,
B160042, 2003 WL 22183768, at pp. *2, *16.)
B. Resentencing petition and instant appeal
In July 2022, Espinoza filed a petition for resentencing
under section 1172.6. The People opposed the petition, arguing
that Espinoza was ineligible for relief because he was convicted
as a direct aider and abettor with malice and no instructions
were given on felony murder or the natural and probable
consequences doctrine. Espinoza’s appointed counsel filed a
written response.
The trial court held a hearing on Espinoza’s section 1172.6
petition in March 2024. After entertaining oral argument, the
court denied the petition, concluding that Espinoza had not made
a prima facie showing of entitlement to relief. The court
explained that “no felony murder, no natural [and] probable
consequence[s,] nor any other theory was advanced where malice
is imputed.” Accordingly, Espinoza “could be convicted under . . .
current law.”
Espinoza timely appealed, and this court affirmed. The
California Supreme Court granted review and subsequently
transferred the case with directions for us to vacate the prior
decision and reconsider the matter in light of Lopez, supra,
19 Cal.5th 639.
DISCUSSION
I. Relevant Law
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) substantively amended sections
188 and 189 to “eliminate[] natural and probable consequences
liability for murder as it applies to aiding and abetting[] and
6
limit[] the scope of the felony-murder rule. [Citations.]” (People
v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Section 188 now
“require[s] that ‘a principal in a crime shall act with malice
aforethought,’ which ‘shall not be imputed to a person based
solely on his or her participation in a crime.’ (§ 188,
subd. (a)(3).)” (Lopez, supra, 19 Cal.5th at p. 648.)
Senate Bill 1437 also added what is now section 1172.6 to
provide a procedural mechanism for defendants who could no
longer be convicted of murder because of the changes made to
sections 188 and 189 to petition for retroactive relief. (Lewis,
supra, 11 Cal.5th at p. 959.)
In order to obtain resentencing relief, a defendant convicted
of murder must allege that (1) a charging document was filed
against him allowing the prosecution to proceed under the felony-
murder rule, the natural and probable consequences doctrine, or
any “other theory under which malice is imputed to a person
based solely on that person’s participation in a crime”; (2) he was
convicted of murder; and (3) he could not now be convicted of
murder “because of changes to [s]ection 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a)(1)–(3); see also Lopez,
supra, 19 Cal.5th at p. 648.)
Upon the filing of a properly pleaded petition for
resentencing, the trial court must conduct a prima facie analysis
to determine the defendant’s eligibility for relief. (§ 1172.6,
subds. (b)(3) & (c); People v. Strong (2022) 13 Cal.5th 698, 708;
Lewis, supra, 11 Cal.5th at pp. 957, 960.) “To determine whether
a prima facie case has been pled, courts must take a ‘petitioner’s
factual allegations as true and make[] a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
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an order to show cause.’ [Citation.] In making this
determination, courts may examine portions of the record of
conviction but may neither engage in ‘ “factfinding involving the
weighing of evidence or the exercise of discretion” ’ nor make
‘credibility determinations.’ [Citation.] At this preliminary
stage, denial of a section 1172.6 petition is proper only ‘[i]f the
petition and record in the case establish conclusively that the
defendant is ineligible for relief.’ [Citations.]” (Lopez, supra,
19 Cal.5th at pp. 657–658.)
II. Standard of Review
We review de novo the trial court’s denial of a
section 1172.6 petition at the prima facie stage. (People v.
Rodriguez (2026) 117 Cal.App.5th 1179, 1189.)
III. Analysis
The trial court properly denied Espinoza’s section 1172.6
petition. As described above, a successful prima facie case for
section 1172.6 relief requires a defendant to aver, inter alia, that
he could no longer be convicted “because of” the 2019 statutory
changes. (§ 1172.6, subd. (a)(3).) Espinoza cannot satisfy this
requirement here because the record of conviction conclusively
establishes that he was convicted of second degree murder as a
direct aider and abettor, a theory of murder unaffected by the
2019 changes to sections 188 and 189. (See People v. Williams
(2022) 86 Cal.App.5th 1244, 1252 [“It is well settled that Senate
Bill 1437 ‘does not eliminate direct aiding and abetting liability
for murder because a direct aider and abettor to murder must
possess malice aforethought[]’ ”].)4
4 Although the jury found that both Espinoza and Samuel
personally used a firearm in the commission of the murder
(§ 12022.53, subd. (b)), the jury found that only Samuel
8
The jury that convicted Espinoza was not instructed on
felony murder, the natural and probable consequences doctrine,
or any other theory of liability relying on imputed malice.
Rather, the jury received instructions on direct aiding and
abetting. (CALJIC Nos. 3.00, 3.01.) Accordingly, Espinoza is
ineligible for section 1172.6 relief as a matter of law. (See People
v. Allen (2023) 97 Cal.App.5th 389, 395 (Allen) [petitioner
ineligible for section 1172.6 relief as a matter of law if “the jury
instructions show that jurors were not instructed on any theory
of liability affected by Senate Bill 1437’s changes to sections 188
and 189”]; People v. Cortes (2022) 75 Cal.App.5th 198, 205
[petitioner ineligible for section 1172.6 relief as a matter of law if
the jury instructions show that jurors were not instructed on any
theory of liability for murder that allowed malice to be imputed to
the defendant].)
Espinoza resists this conclusion, contending that the jury
instructions given at his trial created ambiguities that effectively
allowed the jury to improperly impute Samuel’s implied malice to
him.5 Espinoza asserts that, when combined with the instruction
on implied malice murder (CALJIC No. 8.31), the standard
instruction on aiding and abetting liability (CALJIC No. 3.01)
could have allowed the jury to convict him of second degree
personally and intentionally discharged a firearm causing great
bodily injury or death (§ 12022.53, subd. (d)). This indicates that
Espinoza was convicted as an aider and abettor rather than as
the actual killer.
5 The jury’s verdict did not specify whether it found Espinoza
and Samuel guilty of express or implied malice murder. We
assume arguendo that Espinoza was convicted of aiding and
abetting implied malice murder.
9
murder without finding that he shared the perpetrator’s intent
(i.e., his knowledge of the danger posed by his actions and his
conscious disregard for human life). Espinoza suggests that the
language of CALJIC No. 3.00, which instructs that “[e]ach
principal, regardless of the extent or manner of participation is
equally guilty[,]” also could have enticed the jury into finding him
guilty simply because they found his codefendant guilty.
When considering whether a jury relied on an improper
theory, we ask whether there is a reasonable likelihood the jury
understood its instructions to support a conviction on a now-
invalid theory of murder. (See Boyde v. California (1990)
494 U.S. 370, 380 [for a claim “that the instruction is ambiguous
and therefore subject to an erroneous interpretation[,]” “the
proper inquiry . . . is whether there is a reasonable likelihood
that the jury has applied the challenged instruction in [a
constitutionally improper] way”]; People v. Cross (2008)
45 Cal.4th 58, 67–68 [“A defendant challenging an instruction as
being subject to erroneous interpretation by the jury must
demonstrate a reasonable likelihood that the jury understood the
instruction in the way asserted by the defendant”]; Allen, supra,
97 Cal.App.5th at p. 397 [finding that, based on the evidence and
jury instructions, it was not reasonably likely that jurors imputed
malice to the defendant]; People v. Estrada (2022) 77 Cal.App.5th
941, 947–948 [applying reasonable likelihood test to analyze
whether jury instructions rendered a petitioner ineligible for
section 1172.6 relief].)6
6 In Lopez, supra, 19 Cal.5th at page 670, the California
Supreme Court declined to address whether the reasonable
likelihood standard applies to section 1172.6 eligibility at the
10
Here, there is no reasonable likelihood that jurors imputed
malice to Espinoza. Unlike in the cases he relies upon—People v.
Langi (2022) 73 Cal.App.5th 972 (Langi), People v. Maldonado
(2023) 87 Cal.App.5th 1257 (Maldonado), People v. Powell (2021)
63 Cal.App.5th 689 (Powell), and People v. Reyes (2023)
14 Cal.5th 981 (Reyes)—where other crimes or theories of murder
were alleged where malice was not necessarily a requirement,
here Espinoza was only charged with murder and the jury
expressly instructed that a finding of malice was required to
convict.7 “As instructed, the jury could not have found [Espinoza]
guilty of second degree murder without finding he personally
harbored a malicious mental state.” (People v. Campbell (2026)
122 Cal.App.5th 1131, 1140.)
Lopez, supra, 19 Cal.5th 639, which held that defendants
are “not categorically ineligible for relief” under section 1172.6
merely because they “ ‘could have raised their challenges to
imputed malice on prior direct appeal’ ” (id. at p. 649), does not
prima facie stage, as “outside the scope of the question
presented.”
7 In Langi, supra, 73 Cal.App.5th at page 977, the defendant
was found guilty of second degree murder, as well as robbery and
battery. In Maldonado, the defendant was convicted of first
degree murder after being instructed, inter alia, on murder
committed by lying in wait. (Maldonado, supra, 87 Cal.App.5th
at p. 1260; see also id. at p. 1262 [“Unlike first degree
premeditated murder, ‘nothing in section 189 requires the lying
in wait to have been done with the intent to kill[]’ ”].) In Powell,
supra, 63 Cal.App.5th at page 692, the defendant was found
guilty of second degree murder and residential burglary. In
Reyes, supra, 14 Cal.5th at page 986, the defendant was convicted
of second degree murder and street terrorism.
11
compel a different result. Espinoza’s ineligibility for relief is
based on the record of conviction conclusively establishing that he
was convicted on a still-valid theory of murder. We do not deem
him ineligible based on any failure to raise possible instructional
ambiguities or flaws in a prior appeal. (See id. at p. 668.) In his
supplemental brief, Espinoza baldly states that Lopez requires
reversal here, but he fails to supply any reasoned analysis
applying Lopez to the facts of this case. This “conclusory
assertion of legal error, without . . . application of pertinent
authority, results in forfeiture of the claim. [Citations.]”
(Siskiyou Hospital, Inc. v. County of Siskiyou (2025)
109 Cal.App.5th 14, 39.)
DISPOSITION
The opinion in this matter filed on February 25, 2025, is
vacated. The order denying Espinoza’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
12
We concur:
LUI, P. J.
CHAVEZ, J.
13