Filed 9/28/26 P. v. Sedillo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B347261
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA072460)
v.
JESUS SEDILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Judith Levey Meyer, Judge. Affirmed.
Christina Vanarelli, 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, Wyatt E. Bloomfield and Charles Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 2009, a jury found Jesus Sedillo guilty of two counts of
murder and two counts of attempted murder. In 2025, Sedillo
filed a resentencing petition pursuant to Penal Code
section 1172.6 and requested the appointment of counsel.1 The
trial court summarily denied the petition without first appointing
counsel. We agree with the parties that the trial court’s failure to
appoint counsel was error. However, we conclude the error was
harmless. The record establishes that Sedillo is ineligible for
relief as a matter of law. We therefore affirm the trial court
order.
FACTUAL AND PROCEDURAL BACKGROUND2
In the underlying matter, the People charged Sedillo with
the murders of Manuel Lopez (count 1) and Richard Romero
(count 2), and the attempted murders of Jessica Romero (count 3)
and Edward Villegas (count 4). The charges arose from two
drive-by shootings that were alleged to be gang-related.
As to the murder counts, an amended information alleged
that Sedillo personally and intentionally discharged a firearm,
proximately causing great bodily injury and death to each victim
within the meaning of section 12022.53, subdivision (d). The
information further alleged personal and intentional discharge
and use of a firearm enhancements as to both counts (§ 12022.53,
subds. (b), (c)). The information alleged two special
circumstances as to counts 1 and 2: that in the proceeding
Sedillo was convicted of more than one first or second degree
1 All further statutory references are to the Penal Code.
2 We previously granted the People’s request for judicial
notice of the reporter’s transcript from Sedillo’s original trial.
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murder (§ 190.2, subd. (a)(3)), and that the murders were
intentional and perpetrated by means of discharging a firearm
from a motor vehicle, intentionally at another person and persons
outside the vehicle with the intent to inflict death (§ 190.2,
subd. (a)(21)).
As to the attempted murder counts, the information alleged
the offenses were committed willfully, deliberately, and with
premeditation (§ 664, subd. (a)). Firearm enhancements were
additionally alleged as to count 4. The information also alleged a
gang enhancement as to all counts (§ 186.22, subd. (b)(1)(C)).
The People proceeded at trial on a theory that as to each of
the four crimes, Sedillo had a gun, shot it, and intentionally
killed or attempted to kill the victims. Sedillo testified in his own
defense. He denied any involvement in either shooting.
Sedillo was the only defendant at his trial. The trial court
did not instruct the jury on aiding and abetting liability, the
natural and probable consequences doctrine, or felony murder.
The jury found Sedillo guilty as charged. Specifically, and as
relevant here, the jury found Sedillo committed two counts of
first degree murder in that the murders were “willful, deliberate
and premeditated,” and they also were drive-by murders within
the meaning of section 189; Sedillo personally and intentionally
discharged a firearm which proximately caused great bodily
injury and death to the respective victims; and the murders were
intentional and perpetrated by means of discharging a firearm
from a motor vehicle, intentionally at another person or persons
outside the vehicle with the intent to inflict death. As to the
attempted murders, the jury found Sedillo guilty and found true
that he committed the attempted murders willfully, deliberately
and with premeditation. The jury also found true that Sedillo
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personally and intentionally discharged a firearm which
proximately caused great bodily injury or death as to one victim,
and, as to both, that he personally and intentionally discharged
and used a firearm. The trial court sentenced Sedillo to life
without parole.3
In 2025, Sedillo filed a form section 1172.6 petition in
propria persona. He checked boxes indicating a charging
document was filed against him that allowed the prosecution to
proceed under a now invalid theory of imputed liability for
murder or attempted murder; he was convicted; and he could not
presently be convicted of murder or attempted murder because of
the changes made to sections 188 and 189. Sedillo asked the
court to appoint counsel.
The trial court did not appoint counsel. Instead, the court
reviewed the petition in chambers and summarily denied it. In a
written order, the court found that Sedillo was the only
perpetrator “pursuant to the Information, the court file and the
probation report, and the petitioner does not contradict this in his
‘form’ motion”; the jury verdict forms indicated the jury found
Sedillo guilty and found true that he intentionally discharged a
firearm pursuant to section 12022.53, subdivision (d); and
“[p]etitioner was the shooter in this case, any changes do not
apply to him, and by operation of law he is not eligible for
resentencing” pursuant to section 1172.6. Sedillo timely filed a
notice of appeal.
3 The trial court imposed life without parole as to count 1; a
concurrent life without parole term as to count 2; and concurrent
terms of 15 years to life on count 3 and 40 years to life on count 4.
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DISCUSSION
I. The Trial Court Erred in Failing to Appoint Counsel
Sedillo contends, and the People concede, that the trial
court erred in failing to appoint counsel before ruling on Sedillo’s
petition. We agree.
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) eliminated the natural and probable consequences
doctrine as a basis for finding a defendant guilty of murder and
limited the scope of the felony murder rule. (People v. Strong
(2022) 13 Cal.5th 698, 707–708 (Strong); People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).)
The bill amended section 188, requiring that to be convicted
of murder, “a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
The bill also amended section 189, subdivision (e). Under the
amended law, a person may be convicted of felony murder only if
he or she 1) was the actual killer; 2) was not the actual killer but,
with the intent to kill, aided and abetted the actual killer in
committing first degree murder; or 3) “was a major participant in
the underlying felony and acted with reckless indifference to
human life.” (Ibid.)
Senate Bill No. 1437 created “a procedural mechanism for
those previously convicted of murder under a theory amended in
[Senate Bill No. 1437] to petition for resentencing.” (People v.
Emanuel (2025) 17 Cal.5th 867, 880; Lewis, supra, 11 Cal.5th at
p. 959.) “The process begins with the filing of a petition that
declares, among other things, that ‘[t]he petitioner could not
presently be convicted of murder . . . because of changes to
Section 188 or 189 made effective January 1, 2019,’ the effective
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date of Senate Bill No. 1437. (§ 1172.6, subd. (a)(3); see id.,
subd. (b)(1)(A).)” (Emanuel, at p. 880.)
Senate Bill No. 775 (2021–2022 Reg. Sess.) subsequently
extended resentencing relief to any person convicted of murder
based on any “other theory under which malice is imputed to a
person based solely on that person’s participation in a crime,” and
any person convicted of attempted murder under the natural and
probable consequences doctrine. (§ 1172.6, subd. (a).)
These amendments to the Penal Code did not invalidate
murder convictions based on the theory that the defendant
intended to kill. (Stats. 2018, ch. 1015, § 1, subd. (f); Strong,
supra, 13 Cal.5th at p. 707; People v. Mares (2024) 99 Cal.App.5th
1158, 1166.)
Under section 1172.6, subdivision (b), once a petition is
filed that includes a declaration that the petitioner is eligible for
relief based on the statutory requirements set forth in
subdivision (a), provides the superior court case number and year
of the conviction, and indicates whether the petitioner requests
the appointment of counsel, the trial court shall appoint counsel
to represent the petitioner. (Lewis, supra, 11 Cal.5th at pp. 963,
966.) The appointment of counsel must precede the trial court’s
determination of whether the petitioner has made a prima facie
showing of eligibility for relief. (Id. at p. 966.)
Sedillo’s petition met the requirements of section 1172.6,
subdivision (b). The trial court was required to appoint counsel
and erred in failing to do so.
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II. The Trial Court’s Error Was Harmless Because the
Record of Conviction Establishes that Sedillo is
Ineligible for Relief as a Matter of Law
In Lewis, the California Supreme Court determined that
the failure to appoint counsel as required under section 1172.6,
subdivision (b) is an error of state law, subject to review under
the Watson harmless error test.4 “[A] petitioner ‘whose petition is
denied before an order to show cause issues has the burden of
showing “it is reasonably probable that if [he or she] had been
afforded assistance of counsel his [or her] petition would not have
been summarily denied without an evidentiary hearing.” ’
[Citation.]” (Lewis, supra, 11 Cal.5th at p. 974.)
Thus, although the trial court erred, we agree with the
People that we do not automatically reverse but instead consider
whether the error was harmless. Here, Sedillo cannot show it is
reasonably probable that had he received the assistance of
counsel, his petition would not have been summarily denied.
The record of conviction in this case, which includes the
operative information, the closing arguments, the jury
instructions, and the jury’s verdicts, conclusively establishes that
Sedillo is ineligible for relief under section 1172.6. (People v.
Jenkins (2021) 70 Cal.App.5th 924, 935.) The record
demonstrates that Sedillo was not convicted of murder on a
felony murder theory, the natural and probable consequences
doctrine, or a theory under which malice was imputed to him
based solely on his participation in a crime. Nor was he convicted
of attempted murder under the natural and probable
consequences doctrine.
4 People v. Watson (1956) 46 Cal.2d 818, 836.
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The jury was not instructed on aiding and abetting
liability, any form of accomplice liability, the natural and
probable consequences doctrine, or felony murder. Rather than
being instructed on any form of imputed malice, the trial court
instructed the jury only on several iterations of criminal liability
that required findings of express or implied malice and intent to
kill.5
As to murder, the jury was instructed only on express and
implied malice. The court instructed the jury that “All murder
which is perpetrated by any willful, deliberate, and premeditated
killing with express malice aforethought is murder of the first
degree. . . . [¶] If you find that the killing was preceded and
accompanied by a clear, deliberate intent on the part of the
defendant to kill . . . it is murder of the first degree.”
With respect to the drive-by murder special allegation, the
trial court instructed the jury that the “essential elements” were
that 1) the defendant committed murder; 2) the defendant
perpetrated the murder by discharging a firearm from the motor
vehicle intentionally at another person outside of the vehicle; and
3) the defendant specifically intended to kill a human being.
Likewise, the trial court instructed the jury that to find
Sedillo guilty of attempted murder, it would have to determine
whether the People proved: “[1)] a direct but ineffectual act was
done by one person towards the killing of another being; and [2)]
the person committing the act harbored express malice
5 The trial court instructed the jury on transferred intent.
Transferred intent theories remain valid under current law
because they require an intent to kill. (People v. Lopez (2024) 99
Cal.App.5th 1242, 1249–1250.)
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aforethought, namely, a specific intent to kill unlawfully another
human being.”
Sedillo was the only defendant at his trial. The jury was
not instructed on aiding and abetting liability or presented with
any theory of accomplice liability. The instructions regarding the
actions of the “defendant” or the “person” committing an act
necessarily referred only to Sedillo.
The jury found Sedillo guilty of first degree murder because
it was willful, deliberate and premeditated, and because it was a
drive-by murder. The jury also found Sedillo guilty of attempted
murder committed willfully, deliberately and with premeditation.
The jury was not instructed on the natural and probable
consequences doctrine. The jury could not have found Sedillo
guilty of any of the charged crimes on an imputed malice theory.
Sedillo is thus ineligible for relief under section 1172.6 as a
matter of law. (See People v. Williams (2022) 86 Cal.App.5th
1244, 1257 [jury’s true finding of drive by shooting special
circumstance under former § 12034, subd. (d), coupled with
findings jury was required to make to find defendant of first
degree murder, conclusively demonstrated ineligibility for
§ 1172.6 relief].)
Sedillo contends that the information did not allege that he
was the only perpetrator, the jury made no such finding, and the
jury’s findings do not establish that he actually killed or
attempted to kill any of the victims. These arguments are
unavailing. (People v. Patton (2025) 17 Cal.5th 549, 567 [absent
specific facts identifying someone else as the direct perpetrator,
no material fact dispute arises “from mere latent, speculative
possibilities . . . a hypothetical alternate direct perpetrator
cannot be conjured from thin air or a legal conclusion”].)
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Irrespective of whether Sedillo was the only person
involved in the crimes, the jury instructions and the jury’s
findings together conclusively establish that it found he
committed the murders and attempted murders, and that he
personally acted with intent to kill. (People v. Muhammad (2024)
107 Cal.App.5th 268, 281–282 [defendant ineligible for
§ 1172.6 relief because undisputed facts in record of conviction
established prosecution only pursued theory that defendant was
direct perpetrator of attempted murder]; People v. Hurtado (2023)
89 Cal.App.5th 887, 893 [petitioner ineligible for relief where he
alone attempted to commit murder].)
Thus, the trial court’s error in not appointing counsel was
harmless and we find no basis for reversal.
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DISPOSITION
The trial court order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, P. J.
We concur:
HANASONO, J.
ASHWORTH, J.*
* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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