Filed 12/4/23 P. v. Penaloza CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This 

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIBERTO GUEBARA 

PENALOZA,

Defendant and Appellant.

B324354

Los Angeles County

Super. Ct. No. PA003748

APPEAL from an order of the Superior Court of Los 

Angeles County, David Walgren, Judge. Affirmed. 

Joshua L. Siegel, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri and Gabriel Bradley, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION AND PROCEDURAL BACKGROUND

In 1997, a jury convicted defendant and appellant Eriberto 

Guebara Penaloza of two counts of first degree murder (Pen. 

Code,1 § 187, subd. (a)) and two counts of robbery (§ 211). The 

trial court sentenced him to consecutive terms of 25 years to life 

on each murder count, plus a 1-year firearm enhancement. The 

court stayed sentencing on the robbery counts under section 654. 

On direct appeal, a different panel of this court affirmed the 

judgment, in case number B116017 (Penaloza I).2

In 2019, Penaloza filed a petition for recall of and 

resentencing on his murder convictions under former section 

1170.95.3 After holding an evidentiary hearing under former

section 1170.95, subdivision (d), the trial court denied the 

petition, concluding the evidence showed Penaloza had been a 

major participant in the robberies underlying his murder 

convictions who acted with reckless indifference to human life. 

We affirmed the trial court’s order denying relief. (People v. 

Penaloza (May 3, 2021, B304714 [nonpub. opn.] (Penaloza II).)4

1 All undesignated statutory references are to the Penal 

Code. 

2 We take judicial notice of our opinion in that case. (See 

Evid. Code, § 452, subd. (a).)

3 Effective June 30, 2022, the Legislature renumbered 

section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) 

There were no substantive changes to the statute. 

4 We granted Penaloza’s request for judicial notice of the 

appellate record in Penaloza II. 
3

In September 2022, Penaloza filed another petition for 

resentencing and requested appointment of counsel.5 Without 

appointing counsel, the trial court summarily denied the petition 

on res judicata grounds. In making its ruling, the court noted

Penaloza had previously filed a section 1170.95 petition, the trial 

court denied that petition, and this court affirmed the trial 

court’s order denying the petition. Penaloza timely appealed. 

DISCUSSION

A. The trial court’s res judicata ruling was error

On appeal, Penaloza argues the trial court prejudicially 

erred, and violated his federal due process rights, by summarily 

denying his petition on res judicata grounds. In support of this 

contention, Penaloza correctly notes that when the trial court 

denied his original section 1170.95 petition, it relied in part on 

the statement of facts in our opinion in Penaloza I.

6 Penaloza also 

correctly notes the Legislature has since amended the statute to 

prohibit such use of facts contained in prior appellate opinions

(see § 1172.6, subd. (d)(3); People v. Flores (2022) 76 Cal.App.5th 

974, 988), and argues, because of this material change in the 

statute, the trial court’s reliance on res judicata in denying relief 

was error. The Attorney General agrees the trial court erred by 

relying on res judicata to deny relief.

We agree with the parties. At Penaloza’s evidentiary 

hearing under former section 1170.95, the prosecution stated it 

5 Penaloza’s new petition referenced section 1170.95 

although he filed it after the statute was renumbered to section 

1172.6. 

6 The opinion in Penaloza I is contained in the appellate 

record of Penaloza II. 
4

was relying on the facts stated in this court’s opinion in Penaloza 

I. Because the record clearly demonstrates the prosecution relied 

on facts contained in our opinion in Penaloza I at the evidentiary 

hearing, we conclude the issue litigated in Penaloza’s former 

section 1170.95 proceeding was different from the issue presented 

when he filed his second resentencing petition. For this reason,

we agree with the parties that the trial court’s denial of relief on 

res judicata grounds was erroneous. (See People v. Barragan

(2004) 32 Cal.4th 236, 253 [res judicata applies only if the “issue 

raised in the present action is identical to a claim or issue 

litigated in a prior proceeding”].)

B. Remand is unwarranted because any error by the 

trial court was harmless

Although the parties agree that the trial court erred, they 

disagree over whether the error was harmless. They also disagree 

over which harmless error standard should apply. Whereas the 

Attorney General argues the applicable standard is that 

articulated in People v. Watson (1956) 46 Cal.2d 818, 836

(Watson) (i.e., whether Penaloza can show it is reasonably 

probable he would have received a more favorable outcome), 

Penaloza argues the error should be deemed structural, or 

alternatively, should be reviewed under the standard in 

Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 

L.Ed.2d 705] (Chapman) (placing the burden on the prosecution 

to show the error was harmless beyond a reasonable doubt).

Before analyzing whether the trial court’s error was harmless, we 

will first address which harmless error standard applies. 

We conclude the Attorney General is correct that Watson

applies. We reject Penaloza’s assertion that the denial of his 

petition under res judicata principles should be reversible per se. 
5

Implementing that standard would, among other things, be a 

waste of judicial resources in cases where the record

demonstrates remand would be futile regardless of the error. We 

likewise reject Penaloza’s argument that Chapman should apply. 

That standard applies when a defendant’s federal constitutional 

rights have been violated. (Chapman, supra, 386 U.S. at p. 24.) 

Because section 1172.6 is a state ameliorative statute, the trial 

court’s erroneous application of the statute’s requirements 

amounted merely to an error of state law, rendering Chapman

inapplicable. Because the trial court’s error was one of state 

statutory law, the Attorney General is correct that Watson is the 

applicable prejudice standard. (Cf. People v. Lewis (2021) 11 

Cal.5th 952, 957-958, 973 (Lewis) [erroneous denial of section 

1172.6 petition at prima facie stage without appointing counsel is 

a purely state law issue reviewed for prejudice under Watson].)

We now turn to whether the error here was harmless under 

Watson. More specifically, the question is whether it is 

reasonably probable Penaloza would have obtained a more 

favorable outcome at a second evidentiary hearing at which the 

facts from this court’s opinion in Penaloza I were excluded. We 

conclude the answer is no, and consequently, the error was 

harmless. In denying the original section 1170.95 petition, the 

trial court did not rely solely on the facts contained in our opinion 

in Penaloza I. It also relied on other relevant parts of the record 

of conviction introduced into evidence by the parties, including 

Penaloza’s admissions as recounted by a detective at Penaloza’s 

preliminary hearing.7

7 Section 1172.6 (d)(3) (dealing with the evidentiary hearing 

stage of section 1172.6 proceedings) explains: “hearsay evidence 

that was admitted in a preliminary hearing pursuant to 
6

At the preliminary hearing, Detective Lillian Johnson 

testified she advised Penaloza of his constitutional rights and 

then spoke with him. When speaking with Detective Johnson, 

Penaloza waived his right to remain silent, then made various 

admissions about his role in the robbery-murders. Penaloza told 

her “his part in this case was to transport the two victims to a 

predesignated location in Pacoima where [the victims] were going 

to bring the cocaine[,] and a dope rip off was going to take place[ ] 

[at which] the cocaine would be stolen from [the victims].” 

Penaloza told Johnson the two actual killers were Carlos 

Gutierrez and Juan Jose Paniagua. Penaloza also told Johnson 

he was aware Paniagua dealt cocaine, and he was apprehensive 

about introducing Paniagua to the victims, because he knew 

Paniagua would set up drug deals, take the money and drugs, 

and sometimes commit murder in order to accomplish these

robberies. 

Despite knowing Paniagua had committed similar robberymurders, Penaloza put the victims in contact with Paniagua and 

Gutierrez. Penaloza also brought the victims to the location 

subdivision (b) of Section 872 shall be excluded from the hearing 

as hearsay, unless the evidence is admissible pursuant to another 

exception to the hearsay rule.” Here, if the case were to be 

remanded for a new evidentiary hearing, Penaloza’s admissions 

implicating him as a major participant with reckless indifference 

to human life would be admissible under various exceptions to 

the hearsay rule, just as they were at the prior hearing. (Evid. 

Code, § 1230 [hearsay declarations against interest are 

admissible]; Evid. Code, § 1220 [hearsay party admissions are 

admissible].) At the prior hearing, Penaloza’s counsel explicitly 

asked the court to review the preliminary hearing transcript, and 

the court took a recess in order to do so before ultimately denying 

relief. 
7

where they were murdered. Penaloza knew he was bringing the 

victims there so Paniagua and Gutierrez could steal their drugs. 

When Penaloza was on his way with the victims, he started to 

feel bad, thought about telling one of the victims he was going to 

be robbed, but then decided not to divulge this information. 

Penaloza said he “didn’t know [ ] [the victims] were going to get 

killed, but he knew they were going to get robbed.” After the 

victims were killed, Penaloza fled the scene with the shooters. 

Paniagua gave Penaloza $2,000, told him to go to Mexico, and 

told him he would get the rest of his money after they sold the 

drugs.8

Given Penaloza’s admissions, it is not reasonably probable 

that a finder of fact would conclude Penaloza was not a major 

participant in the robberies or did not act with reckless 

indifference to human life.9 For this reason, the trial court’s error 

in applying res judicata principles to deny relief, as well as the 

court’s error in not appointing counsel and allowing briefing (see 

Lewis, supra, 11 Cal.5th at p. 957 [appointment of counsel and 

opportunity for briefing are required under section 1172.6]), were 

both harmless.10

8 Paniagua originally offered Penaloza $10,000 for 

participating in the robbery. Another participant, Angel Rosalez,

offered Penaloza $5,000.

9 Indeed, in light of the facts contained in the preliminary 

hearing transcript, even assuming Chapman applied, we would 

find the error harmless under that standard as well.

10 We likewise reject Penaloza’s argument that the trial 

court’s summary denial of his petition violated his federal due 

process rights. (Cf. Lewis, supra, 11 Cal.5th at pp. 972-973 
8

DISPOSITION

The order denying Penaloza’s section 1172.6 petition is 

affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.

We concur: 

COLLINS, J.

MORI, J.

[failure to appoint counsel under section 1172.6 is error under 

state statutory law only].)