Filed 11/18/21 P. v. Coronado CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS ENRIQUE 

CORONADO,

Defendant and Appellant.

 B308296

 (Los Angeles County

 Super. Ct. No. BA283071)

APPEAL from an order of the Superior Court of 

Los Angeles County, Mark S. Arnold, Judge. Affirmed.

Alex Coolman, 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, Assistant 

Attorney General, Scott A. Taryle and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.

——————————
2

Jesus Enrique Coronado petitioned for resentencing under 

Penal Code1 section 1170.95. The trial court summarily denied 

the petition without appointing counsel for Coronado. He appeals

and contends that the trial court engaged in erroneous 

factfinding and failed to appoint him counsel. We agree that the 

trial court erred but conclude that any error was harmless.

BACKGROUND

In November of 2004, Luis Valencia was standing in the

street near his home when an SUV drove slowly by. A passenger 

fired seven gunshots at Valencia, killing him. Coronado 

confessed to a fellow gang member that he and another gang 

member committed the shooting. In a police interview, Coronado 

told detectives that on the night of the murder, he was driving an 

SUV with four passengers. One of the passengers exited the 

vehicle and fired seven gunshots at someone. 

Coronado was charged with one count of murder. (§ 187, 

subd. (a).) The case went to trial. The court instructed the jury 

with CALJIC Nos. 3.00 (principals), 3.01 (aiding and abetting), 

3.31 (concurrence of act and specific intent), 8.10 (murder), 8.11 

(malice aforethought), 8.20 (deliberate and premeditated 

murder), 8.25.1 (drive-by murder), 8.30 (unpremeditated murder 

of the second degree), and 8.31 (second degree murder—killing 

resulting from unlawful act dangerous to life). 

The jury convicted Coronado of second degree murder. 

(§ 187, subd. (a).) The jury found a principal personally used, 

intentionally discharged, and caused death with a firearm 

(§ 12022.53, subds. (b)–(e)(1)), and the offense was committed for 

1 All further statutory references are to the Penal Code.
3

the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). 

Coronado admitted to suffering a prior felony conviction (§ 667, 

subd. (d)). The trial court sentenced him to prison for 55 years to 

life. We affirmed the judgment in People v. Coronado (July 25, 

2007, B189922) [nonpub. opn.]. 

In 2020, Coronado petitioned for resentencing under 

section 1170.95. The trial court summarily denied his petition on 

the grounds that Coronado was the actual killer who personally 

used a firearm to commit the offense and declined to appoint 

counsel. 

Coronado appealed. 

DISCUSSION

Coronado contends the trial court erred when it failed to 

appoint counsel and then summarily denied his petition on the 

incorrect theory that he was the actual killer.

“Senate Bill No. 1437 (Stats. 2018, ch. 1015; Senate Bill 

1437) eliminated natural and probable consequences liability for 

murder as it applies to aiding and abetting, and limited the scope 

of the felony-murder rule.” (People v. Lewis (2021) 11 Cal.5th 

952, 957.) The law also added section 1170.95 to allow convicted 

murderers who could not be convicted under the law as amended 

to retroactively seek relief. (Ibid.)

Under section 1170.95, subdivision (a), an offender must 

file a petition in the sentencing court averring that: “(1) [a]

complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory 

of felony murder or murder under the natural and probable 

consequences doctrine[;] [¶] (2) [t]he petitioner was convicted of 

first degree or second degree murder following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could be 
4

convicted for first degree or second degree murder[;] [¶] [and] 

(3) [t]he petitioner could not be convicted of first or second degree 

murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” The petition must include: “(A) [a] declaration 

by the petitioner that he or she is eligible for relief under this 

section, based on all the requirements of subdivision (a)[;] [¶]

(B) [t]he superior court case number and year of the petitioner’s 

conviction[;] [¶] (C) [w]hether the petitioner requests the 

appointment of counsel.” (§ 1170.95, subd. (b).) If the petition 

complies with section 1170.95, subdivision (b)’s three 

requirements, then the court proceeds to section 1170.95, 

subdivision (c) to determine whether the petitioner has a made a 

prima facie showing for relief. (§ 1170.95, subd. (c).)

If the section 1170.95 petition contains all the required 

information, including a declaration by the petitioner that he was 

convicted of murder and is eligible for relief, section 1170.95, 

subdivision (c) requires the court to appoint counsel to represent 

the petitioner, directs the prosecutor to file a response to the 

petition and permits the petitioner to file a reply, and determine 

if the petitioner has made a prima facie showing that he is 

entitled to relief. (People v. Lewis, supra, 11 Cal.5th at pp. 959–

960.)

Here, Coronado filed a facially valid petition and requested 

counsel. He alleged that he had been charged with murder under 

a theory of felony murder or under the doctrine of natural and 

probable consequences, that he was convicted of second degree 

murder, and that he could no longer be convicted of second degree 

murder because of the changes made to sections 188 and 189. He 

further asserted that he was not the actual killer. Therefore, the 
5

court erred by not appointing counsel before performing a prima 

facie review. 

We review the court’s failure to appoint counsel under the 

harmless error standard set forth in People v. Watson (1956) 

46 Cal.2d 818. (People v. Lewis, supra, 11 Cal.5th at pp. 973–

974.) Therefore, Coronado must “ ‘demonstrate there is a 

reasonable probability that in the absence of the error

he . . . would have obtained a more favorable result.’ ” (Id. at 

p. 974.) Specifically, he must show that it is reasonably probable 

that if he had been afforded the assistance of counsel, his petition 

would not have been summarily denied without an evidentiary 

hearing. (Ibid.) Coronado cannot meet that burden. 

To determine whether the petitioner has carried the burden 

of making the requisite prima facie showing, the court properly 

examines the record of conviction, “allowing the court to 

distinguish petitions with potential merit from those that are 

clearly meritless.” (People v. Lewis, supra, 11 Cal.5th at p. 971.) 

This prima facie inquiry is limited. The court takes petitioner’s 

factual allegations as true and makes a preliminary assessment 

regarding whether the petitioner would be entitled to relief if his 

or her factual allegations were proved. (Ibid.) If so, the court 

must issue an order to show cause. (Ibid.) However, if the 

record, including the court’s own documents, contains facts 

refuting the petitioner’s allegations, then the court may make a 

credibility determination adverse to the petitioner. (Ibid.)

Here, Coronado is ineligible for relief under section 1170.95 

as a matter of law. To be eligible for resentencing, Coronado 

would have to show that he “could not be convicted of first or 

second degree murder because of changes to Section 188 or 189” 

made by Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) The jury 
6

instructions given at Coronado’s trial conclusively demonstrate 

he cannot make that showing. “[P]otential relief under section 

1170.95 extends only to those convicted of murder by operation of 

the natural and probable consequences doctrine or of felony 

murder.” (People v. Soto (2020) 51 Cal.App.5th 1043, 1056, 

review granted Sept. 23, 2020, S263939.) Where the record 

shows, as a matter of law, that the petitioner was not tried under 

either of those theories, he necessarily was convicted on a theory 

that survives the changes to sections 188 and 189 enacted by 

Senate Bill No. 1437.

The record establishes here that Coronado was not 

convicted on a “natural and probable consequences” theory nor 

was this a felony murder. While the court erred in finding 

Coronado was ineligible as the actual killer who used a firearm to 

commit the murder and declining to appoint counsel, the record 

establishes that he was the driver, who aided and abetted the 

actual killer. The court instructed the jury on this single theory 

of liability, that Coronado as the driver aided and abetted the 

killer. Indeed, the jury was not instructed on the natural and 

probable consequences doctrine or felony murder so he could not 

have been convicted on those theories. The jury, following the

given instructions, must have found that Coronado was aware of 

the killer’s intent to commit murder at the time he aided and 

abetted the act, and thus was liable for that offense. This is 

liability for the target offense of murder; this is not liability for 

murder based upon aiding and abetting some other offense, the 

natural and probable consequence of which would be murder. 

Nor is this a case of felony murder; it was the murder which the 

perpetrator intended, not some other felony that Coronado was 

aware of at the time. 
7

In his reply brief, Coronado argues for the first time that, 

although the jury was not instructed on either the natural and 

probable consequences doctrine or felony murder, CALJIC 

Nos. 3.002 (principals) and 3.013 (aider and abettor), implicate 

“changes to the law of murder” made by Senate Bill No. 1437. 

Coronado complains that CALJIC No. 3.00 wrongly suggested 

that he was equally guilty as the actual shooter if he aided and 

abetted the shooting regardless of the manner of his participation 

and that CALJIC No. 3.01 failed to distinguish between an aider 

and abettor’s intent to commit crimes in general and the intent to 

commit murder. 

We find Coronado waived his argument regarding CALJIC 

Nos. 3.00 and 3.01. “ ‘Withholding a point until the reply brief 

deprives the respondent of an opportunity to answer it . . . . 

2 CALJIC No. 3.00 reads: “Persons who are involved in 

[committing] a crime are referred to as principals in that crime. 

Each principal, regardless of the extent or manner of 

participation is equally guilty. Principals include: [¶] 1. Those 

who directly and actively [commit] the act constituting the crime, 

or [¶] 2. Those who aid and abet the [commission] of the crime.”

3 CALJIC No. 3.01 reads: “A person aids and abets the 

[commission] of a crime when he or she: [¶] (1) With knowledge 

of the unlawful purpose of the perpetrator, and [¶] (2) With the 

intent or purpose of committing or encouraging or facilitating the 

commission of the crime, and [¶] (3) By act or advice aids, 

promotes, encourages or instigates the commission of the crime. 

[¶] [Mere presence at the scene of a crime which does not itself 

assist the commission of the crime does not amount to aiding and 

abetting.] [¶] [Mere knowledge that a crime is being committed

and the failure to prevent it does not amount to aiding and 

abetting.].”
8

Hence, a point raised for the first time therein is deemed waived 

and will not be considered, unless good reason is shown for 

failure to present it before.’ ” (People v. Selivanov (2016) 5 

Cal.App.5th 726, 794.) Coronado does not explain why he made 

these arguments for the first time in his reply brief and cited no 

authority to support his contention that CALJIC Nos. 3.00 and 

3.01 allowed the jury to convict him under the natural and 

probable consequences doctrine or a felony murder theory. 

Moreover, any instructional error should have been raised in his 

original appeal.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

WINDHAM, J.*

We concur:

EDMON, P. J.

LAVIN, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.