Unreported / Non-Citable
Background
Jesus Espinoza was convicted of second degree murder in 2002 for the 1998 shooting death of Alex Perez. According to the facts drawn from a prior nonpublished opinion and offered for context only, Espinoza's younger brother Samuel fired the fatal shots after the two returned to the victims' home, Samuel carrying a pistol and Espinoza carrying a rifle. Espinoza and Samuel were tried together before separate juries; their first convictions were reversed on direct appeal for failure to instruct on heat of passion, and they were retried in 2002. At retrial the jury was instructed on express and implied malice murder and on direct aiding and abetting, but not on felony murder or the natural and probable consequences doctrine. Both were again convicted of second degree murder, and Espinoza was sentenced to an aggregate term of 25 years to life.
In July 2022 Espinoza filed a petition for resentencing under Penal Code section 1172.6, the mechanism created by Senate Bill 1437 for defendants who could no longer be convicted of murder after the 2019 amendments to sections 188 and 189. The trial court denied the petition at the prima facie stage in March 2024, reasoning that no felony murder, natural and probable consequences, or other imputed-malice theory had been advanced. The Court of Appeal affirmed in a February 25, 2025 opinion. The California Supreme Court granted review and, on June 24, 2026, transferred the case with directions to vacate the prior decision and reconsider in light of People v. Lopez (2026) 19 Cal.5th 639.
The Court’s Holding
After considering supplemental briefing, the court again affirmed. Reviewing the prima facie denial de novo, the court held that Espinoza could not allege, as section 1172.6, subdivision (a)(3) requires, that he could no longer be convicted because of the 2019 statutory changes, because the record of conviction conclusively established he was convicted as a direct aider and abettor, a theory requiring personal malice that Senate Bill 1437 left intact. The jury received express and implied malice murder instructions and direct aiding and abetting instructions under CALJIC Nos. 3.00 and 3.01, but no felony-murder, natural and probable consequences, or other imputed-malice instructions, rendering Espinoza ineligible as a matter of law under People v. Allen and People v. Cortes.
The court rejected Espinoza's argument that the combination of the implied malice instruction and the standard aiding and abetting instructions, including the 'equally guilty' language of CALJIC No. 3.00, created ambiguities allowing the jury to impute Samuel's malice to him. Applying the reasonable likelihood framework from Boyde v. California and related cases, the court found no reasonable likelihood the jury imputed malice, distinguishing Langi, Maldonado, Powell, and Reyes because Espinoza was charged only with murder and the jury was expressly told a finding of malice was required to convict. Lopez did not compel a different result: Espinoza's ineligibility rested on the record conclusively establishing a still-valid theory of murder, not on any failure to raise instructional challenges on prior appeal, and his conclusory supplemental claim that Lopez required reversal was forfeited for lack of reasoned analysis.
Key Takeaways
- A section 1172.6 petitioner whose jury was instructed on malice murder and direct aiding and abetting, with no felony-murder or natural and probable consequences theory, is ineligible for resentencing as a matter of law because direct aiding and abetting requires personal malice unaffected by Senate Bill 1437.
- The reasonable likelihood test from Boyde v. California governs claims that ambiguous instructions let a jury convict on an imputed-malice theory, and it is not reasonably likely malice was imputed where murder was the only charge and the instructions expressly required a malice finding.
- People v. Lopez holds defendants are not categorically ineligible merely because they could have raised imputed-malice challenges on direct appeal, but it does not help a petitioner whose record of conviction conclusively establishes conviction on a still-valid theory.
- A conclusory supplemental assertion that a new Supreme Court decision requires reversal, without reasoned application of that authority to the facts, results in forfeiture of the claim.
- The opinion filed February 25, 2025 was vacated per the Supreme Court's transfer order, but the order denying the section 1172.6 petition was affirmed on reconsideration.
Why It Matters
The decision illustrates how courts of appeal are applying the California Supreme Court's Lopez decision on remand: Lopez bars categorical ineligibility based on a failure to raise instructional challenges earlier, but it does not disturb ineligibility grounded in a record of conviction showing the jury was instructed solely on theories Senate Bill 1437 left untouched. It reinforces that the prima facie inquiry under section 1172.6 turns on the instructions actually given and the record of conviction, not on hypothetical ambiguities a petitioner could have pursued on direct appeal.
The case also confirms the continued vitality of the reasonable likelihood framework for evaluating claims that standard CALJIC aiding and abetting and implied malice instructions, read together, permitted imputed malice, and it signals that conclusory reliance on new Supreme Court authority, without case-specific analysis, will be deemed forfeited.