Filed 6/4/24 P. v. Murillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JESUS MURILLO,

 Defendant and Appellant.

 G062561

 (Super. Ct. No. 99CF2873)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Jonathan S. Fish, Judge. Affirmed.

Cindi B. Mishkin, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.
2

Defendant Jesus Murillo filed a petition for resentencing pursuant to Penal 

Code section 1172.6.

1

 The trial court denied the petition at the prima facie hearing. 

Appointed counsel for Murillo filed a brief pursuant to People v. Delgadillo (2022) 14 

Cal.5th 216 (Delgadillo), setting forth the facts of the case. Citing Delgadillo, counsel 

asked this court to conduct an independent review of the entire record. Murillo submitted 

a supplemental brief on his own behalf.

Exercising our discretion under Delgadillo, we have examined the entire 

record as well as Murillo’s supplemental brief and find no reasonably arguable issue. 

(Delgadillo, supra, 14 Cal.5th at p. 232.) We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2000, Murillo was convicted after jury trial of premeditated and 

deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a); count 1) and attempted 

voluntary manslaughter (§§ 192, subd. (a), 664; count 2). The jury found Murillo had 

caused great bodily injury by personally discharging a firearm during the commission of 

the attempted murder (§ 12022.53, subd. (d)). In committing the attempted voluntary 

manslaughter, the jury also found Murillo had personally used a handgun (§ 12022.5, 

subd. (a)) and personally inflicted great bodily injury (§ 12022.7). 

The trial court sentenced Murillo to a prison term of life with the possibility 

of parole plus a consecutive term of 25 years to life. On direct appeal to this court, the 

judgment was affirmed with orders to modify Murillo’s concurrent sentence as to count 2. 

(People v. Murillo (Oct. 15, 2002, G028301) [nonpub. opn.].)

1

 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, 

with no change in text. (Stats. 2022, ch. 58, § 10.) Although Murillo filed his petition 

after this renumbering, his petition references the former section 1170.95. We will treat 

the petition as a request pursuant to section 1172.6. All further statutory references are to 

the Penal Code.
3

In December 2022, Murillo filed a petition for resentencing pursuant to 

section 1172.6.2Counsel was appointed at his request. The People filed a response to 

Murillo’s petition, arguing it should be denied at the prima facie hearing. Murillo’s

counsel filed a brief in support of the petition. 

In April 2023, the trial court conducted a prima facie hearing indicating it 

had reviewed the parties’ briefs. Relying “solely upon the jury instructions and verdict 

forms,” the trial court denied Murillo’s petition. The trial court explained in its written 

statement of decision: “The only theory of guilt upon which the jury was instructed 

required a finding of a ‘specific intent to kill’ on the part of the petitioner. The jury was 

also instructed regarding ‘Unjoined Perpetrator’ (CALJIC 2.11.5) and ‘Principals 

Defined’ (CALJIC 3.00). Those instructions, however, in no way detract from the 

conclusion that the jury was instructed in such a way that the convictions derived from 

which required a finding of a specific intent to kill. The instructions given to the jury 

included no vicarious theory of guilt. Therefore, [Murillo] was convicted under a stillviable definition of Attempted Murder.” 

DISCUSSION

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) 

(Stats. 2018, ch. 1015; Senate Bill 1437) amended the felony murder rule and the natural 

and probable consequences doctrine as it relates to murder “‘to ensure that murder 

liability is not imposed on a person who is not the actual killer, did not act with the intent 

to kill, or was not a major participant in the underlying felony who acted with reckless 

indifference to human life.’” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

Senate Bill 1437 also created procedures “for convicted murderers who could not be 

convicted under the law as amended to retroactively seek relief.” (Lewis, at p. 957.) A 

2 Murillo sought resentencing only as to his attempted murder conviction in count 1.
4

subsequent amendment to former section 1170.95 extended relief to defendants convicted 

of attempted murder based on the natural and probable consequences doctrine or 

manslaughter. (Sen. Bill No. 775 (2021–2022 Reg. Sess.); Stats. 2021, ch. 551, § 2; 

Senate Bill 775.) 

After receipt of a section 1172.6 resentencing petition, counsel shall be 

appointed upon petitioner’s request. (§ 1172.6, subd. (b)(1)–(3).) The prosecutor must 

then file a response to the petition, and a reply may be filed by the petitioner. (Id., subd. 

(c).) The trial court shall then “hold a hearing to determine whether the petitioner has 

made a prima facie case for relief.” (Ibid.)

At the prima facie hearing, the trial court may rely on the record of 

conviction. (Lewis, supra, 11 Cal.5th at pp. 970–971.) “The record of conviction will 

necessarily inform the trial court’s prima facie inquiry under [former] section 1170.95, 

allowing the court to distinguish petitions with potential merit from those that are clearly 

meritless.” (Id. at p. 971.) Instructions given to the jury at a petitioner’s trial may be 

relied on by the trial court as part of the record of conviction at the prima facie hearing. 

(People v. Soto (2020) 51 Cal.App.5th 1043, 1055.) “It is only where the record of 

conviction establishes the petition lacks merit as a matter of law that the court may deny 

the petition without a hearing.” (People v. Lopez (2023) 88 Cal.App.5th 566, 576.) 

Here, the trial court reviewed the record of conviction, particularly noting 

the jury instructions and verdict forms. We agree with the trial court in finding Murillo 

has not made a prima facie showing for relief under section 1172.6. The jury was only 

instructed on the law defining attempted murder, attempted voluntary manslaughter,

deliberation and premeditation, and the related personal use firearm enhancements. The 

jury was not instructed on any theory of liability requiring malice to be imputed to 

Murillo based solely on his participation in the offense. Since the record of conviction 

established Murillo was not convicted under a vicarious liability theory, relief was 

properly denied by the trial court. 
5

In his supplemental brief, Murillo argues the sentencing court failed to 

apply the heat of passion defense to the attempted murder conviction. He asks this court 

to review the transcript of his original sentencing hearing. He argues a single statement 

by the judge—that she “‘did not want to give [Murillo] a life sentence, because . . . this 

was a crime of passion’”—is sufficient to invoke the defense and resentencing is then 

required. But the record before us does not contain such a statement and, even if it were 

in the record, the original sentencing judge’s comment on what sentence was appropriate 

is irrelevant in a review of Murillo’s resentencing petition under section 1172.6.

3

Finally, Murillo argues we should exercise our discretion under section 

1385, as authorized under section 12022.53, subdivision (h), to strike or dismiss his 

section 12022.53, subdivision (d) enhancement. We cannot do so. While Murillo is 

correct in noting the authority may be applicable in any instance of resentencing, any 

discussion of it here is immaterial. This discretion is only to be exercised by the 

sentencing court if the resentencing “may occur pursuant to any other law.” (§ 12022.53

subd. (h)). Because Murillo was found ineligible for resentencing, no opportunity arose 

for the sentencing court to consider striking or dismissing this enhancement. 

After independently reviewing the entire appellate record, we find no 

arguable issue.

3

 Murillo’s additional arguments regarding resentencing based on Assembly Bill Nos. 

518 and 333, and on the grounds of prosecutorial misconduct are also claims that cannot 

be resolved on the present record.
6

DISPOSITION

The postjudgment order denying the resentencing petition is affirmed.

MOTOIKE, ACTING P.J.

WE CONCUR:

DELANEY, J.

GOODING, J.