Filed 8/16/22 P. v. Espinoza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

JORGE ANTONIO ESPINOZA et al.,

Defendants and Appellants.

 B307621

 (Los Angeles County

 Super. Ct.

 No. YA013704)

APPEALS from orders of the Superior Court of Los Angeles 

County, Nicole C. Bershon, Judge. Affirmed.

Jennifer A. Mannix, under appointment by the Court of 

Appeal, for Defendant and Appellant Jorge Antonio Espinoza.

Kelly C. Martin, under appointment by the Court of 

Appeal, for Defendant and Appellant Antonio Silva.

Law Office of Stein and Markus, Andrew M. Stein, 

Joseph A. Markus and Brentford Ferreira for Defendant and 

Appellant Alfredo Sanchez Espinoza.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 
2

Attorney General, Amanda V. Lopez and Steven E. Mercer, 

Deputy Attorneys General, for Plaintiff and Respondent.

——————————

In 1992, Jorge Antonio Espinoza, Alfredo Sanchez 

Espinoza,1 and Antonio Silva (collectively, defendants) committed 

an armed home-invasion robbery and then fled the police in a car 

driven by a coparticipant in the crime. The car ran a stop sign 

and crashed into another vehicle, killing two of its occupants and 

injuring two others. At the time of the crime, Alfredo was 

17 years old and both Jorge and Silva were 19 years old. 

Defendants were convicted of two counts of first degree felony 

murder for the deaths of the two victims killed in the collision. 

In 2019, each defendant filed a petition for resentencing 

under Penal Code2 section 1170.95 (now § 1172.6).

3 Following an 

evidentiary hearing, the superior court denied each petition 

based on a finding that defendants were not entitled to relief 

under section 1170.95 because they were major participants in 

the felony and acted with reckless indifference to human life. 

On appeal, each defendant argues the evidence was 

insufficient to support the superior court’s finding that he 

1 Because Alfredo Espinoza and Jorge Espinoza share the 

same last name, we refer to them by their first names for clarity.

2 Unless otherwise stated, all further statutory references 

are to the Penal Code.

3 Effective June 30, 2022, the Legislature renumbered 

Penal Code section 1170.95 to section 1172.6 with no change in 

text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and 

conformity with the petition, we will continue to refer to the 

statute as section 1170.95 throughout the opinion.
3

was ineligible for section 1170.95 relief. Silva also asserts the 

superior court erred in refusing to consider youth as a relevant 

factor in ruling on the petitions, and in relying on certain

inadmissible evidence in violation of section 1170.95 and 

the Sixth Amendment confrontation clause. We affirm.

BACKGROUND

I. The underlying crimes

On the evening of November 7, 1992, defendants committed 

an armed robbery at a residence in Hawthorne, California. A 

fourth man, Rutilo Aguilera, waited in a car outside the residence 

and acted as the getaway driver. The group was also joined by an 

unidentified woman. 

At the time of the robbery, 16-year-old Norma Barraza 

was inside the residence with her young niece and nephew, both 

of whom were under the age of 10. Barraza heard a knock on the

front door and a voice asking for Robert. After Barraza 

responded that no one named Robert lived there, she stood 

behind the door with her hand on the knob waiting for the person 

to leave. A shotgun blast suddenly ripped through the doorknob, 

injuring Barraza’s hand. The door was then kicked open. Silva, 

armed with a 12-gauge sawed-off shotgun, and Alfredo, armed 

with a chrome .44 Magnum handgun, both entered the home. 

Jorge, armed with a black .40-caliber semiautomatic handgun, 

remained at the doorway, acting as a lookout.

Once inside the home, one of the men ordered Barraza’s 

niece and nephew to get on the ground. The children complied 

and were taken to the living room where they sat on the sofa. 

Barraza initially ran into a bedroom to hide, but was found by 

the men and taken to the kitchen. Alfredo pointed his gun at

Barraza and the two children. Alfredo also threatened to kill 
4

Barraza, and Silva threatened to rape her. Alfredo and Silva 

rummaged through the home. They took Barraza’s ring from 

a drawer inside a bedroom. After about three minutes, Jorge

saw the police and told his companions, “Let’s go.” 

Defendants ran from the residence into the waiting car. A 

neighbor who saw the men fleeing the home observed that one of 

them held a white bag in his hand. The car, driven by Aguilera, 

took off down the street with the police in close pursuit. About a 

block and a half from the residence, the car ran a stop sign and

then crashed into another vehicle. That vehicle was occupied by 

Indricka Kelsey, her young daughter, her friend Ida Logan, and 

Logan’s young daughter Jameshia Perkins. Logan and her

daughter died as a result of injuries sustained in the collision. 

Kelsey and her daughter survived the collision, but suffered 

serious injuries. The driver of the getaway car, Aguilera, also 

died from injuries sustained in the collision. 

Immediately following the collision, one to two shots were 

fired from the getaway car.4 Defendants and their female 

companion then fled the scene on foot. A police officer pursuing 

the suspects saw Alfredo with a chrome gun as he ran away. 

Alfredo was found hiding a short distance from the scene of the 

collision and was arrested at that time. Jorge was arrested a few 

days later. Silva and the female suspect ran into a nearby 

4 Following Alfredo’s arrest, he tested positive for gunshot 

residue on his hands, and the chrome revolver that he carried

during the robbery was found with one expended casing and five 

unspent cartridges inside the cylinder. The prosecution’s theory 

at trial was that Alfredo fired the gun from inside the getaway 

car, possibly to shoot out the window of the crashed car as a 

means of escape.
5

laundromat and asked a customer for a change of clothes. After 

changing clothes, Silva and the woman returned to the scene of 

the collision to see what was happening, and then left. 

A chrome revolver and a white bag containing money were 

found near the area where Alfredo and Jorge were seen running. 

A sawed-off shotgun containing four shells, a loaded .40-caliber 

handgun, and a large quantity of heroin were recovered from

inside the getaway car. 

In an interview with the police following his arrest, Alfredo 

admitted he had participated in the robbery. He identified his 

coparticipants by their purported gang monikers, and denied 

knowing their true names. According to Alfredo, the group 

committed the robbery because “Chuco” said that some people at 

the residence owed him money. Chuco and “Spider” searched the 

residence, and after Chuco threatened the female victim, she told 

them where the money was located. Defendants then fled the 

home with a bag of money and were passengers in a car driven by 

“Big Boy” when the collision occurred. 

In his interview with the police, Silva also admitted he 

was involved in the robbery. The detective who interviewed Silva 

provided a detailed description of his statements to the police at 

Silva’s preliminary hearing. According to Silva, the driver of the 

car, Aguilera, asked Silva to help him commit the robbery 

because people at the residence had “ripped him off” in a drug 

deal.5 Aguilera supplied the guns used in the crime, including a 

shotgun that he gave to Silva. Silva described the weapon as a 

5 Shortly after the crime, Jorge told a friend that the group 

had committed the robbery to “[j]ack a dope dealer,” but “it didn’t 

work out.” 
6

terminator-style shotgun. While Aguilera stayed in the car, Silva 

fired a shot through the door, and then defendants went inside 

the home. They stole drugs and a bag of money and fled in the 

car when they saw the police were coming. Aguilera said he was 

not going to jail and crashed into another car when he ran a stop 

sign. After the crash, Silva heard a shot but did not know who 

had fired it. He got out of the car and ran from the scene. Silva 

told the police that he felt guilty about what had happened 

because he later learned from the news a child had been killed in 

the collision. Silva also said that he had asked the driver of the 

getaway car to stop once he realized the police were on the scene. 

II. Defendants’ convictions and sentences

In 1994, following a joint trial before a jury, Jorge and 

Alfredo were each found guilty as charged of two counts of first 

degree murder (§ 187, subd. (a)), two counts of assault with a 

deadly weapon (§ 245, subd. (a)(1)) two counts of assault with a 

firearm (§ 245, subd. (a)(2)), one count of first degree residential 

robbery (§ 211), one count of first degree residential burglary 

(§ 459), and one count of shooting at an inhabited dwelling 

(§ 246). Various firearm enhancement allegations (§§ 12022, 

subd. (a)(1), 12022.5, subd. (a)) were found to be true as to each of 

them. Jorge and Alfredo were each sentenced to 66 years and 

8 months to life in state prison.

In 1996, as part of a plea agreement, Silva pleaded guilty to

two counts of first degree murder (§ 187, subd. (a)) and admitted 

two firearm enhancement allegations (§12022, subd. (a)(1)). All 

remaining counts and allegations against him were dismissed. 

Silva was sentenced to 50 years to life in state prison.

Jorge filed an appeal from his judgment of conviction. In 

an unpublished opinion filed on December 24, 1996, this court 
7

affirmed the judgment against Jorge. (People v. Espinoza

(Dec. 24, 1996, B086254) [nonpub. opn.].)

III. Defendants’ petitions for resentencing

In 2019, defendants each filed a petition for resentencing 

under section 1170.95. Each defendant alleged he was entitled to 

relief under the newly enacted statute because he was convicted 

of murder pursuant the felony-murder rule or the natural and 

probable consequences doctrine, he was not the actual killer, he 

did not aid or abet a murder with the intent to kill, and he was 

not a major participant in the underlying felony and did not act

with reckless indifference to human life. 

In support of his petition, Silva attached a sworn 

declaration in which he stated that he “only agreed to the robbery 

or burglary, not . . . a murder [he] never fathomed.” He further

stated that once the group left the residence and the police began

chasing them, he “repeatedly told the driver of the vehicle to pull 

over and stop so [he] could jump out but the driver refused.” 

Silva also supported his petition with his 1996 postplea probation 

report, and with the factual background section of this court’s 

prior opinion in Jorge’s appeal. The probation report reflected 

that Silva told the probation officer that he did not believe the 

murder charges were fair because he had asked the driver of the 

getaway car to stop, but the driver refused. 

The People filed a response to each defendant’s petition. 

Among other arguments, the People asserted defendants were 

not entitled to relief under section 1170.95 because each of them 

was a major participant in the robbery and acted with reckless 

indifference to human life. The People supported their responses

with various documents, including this court’s prior opinion in 

Jorge’s appeal, defendants’ preliminary hearing transcripts, and 
8

defendants’ presentencing probation reports. Defendants filed 

replies in which they argued they were not liable for murder 

because their actions during the robbery did not play a role in the 

car collision that led to the victims’ deaths. In support of his 

reply, Alfredo attached the transcripts from his and Jorge’s joint

trial. 

On September 2, 2020, the superior court held a combined 

evidentiary hearing on the petitions after finding each defendant 

had established a prima facie case for relief. At the hearing, the 

parties did not offer any new or additional evidence, but rather 

relied on the evidence previously submitted with the briefing. 

Following extensive argument from counsel, the court denied the 

petitions, finding each defendant was a major participant in the 

robbery and acted with reckless indifference to human life. In 

articulating the basis for its ruling, the court noted that the case 

presented “a strange scenario” in which defendants “were all 

present for the shooting that didn’t lead to the death[,] but they 

were also all present for the action that led to the death.” While 

acknowledging that “there isn’t one factor that’s overarching,” the 

court cited defendants’ armed participation in the robbery of a 

known drug residence, their violent conduct during the robbery 

which included shooting through the door and pointing a gun at 

young children, their decision to get into a fleeing car once they 

became aware the police were coming, their presence in the car 

at the time of the deadly collision, and their decision to flee the 

scene of the collision rather than render aid to the victims. The 

court also noted that, over the course of the robbery and escape, 

defendants had multiple opportunities to stop the crime, but 

did not do so. While recognizing the “relatively young age” of 

defendants at the time of the robbery, the court explained it could 
9

not evaluate their culpability “from the mind of a 17-year-old or

18-year-old” in deciding whether they were entitled to section 

1170.95 relief.

Following the denial of their petitions, each defendant filed 

a timely notice of appeal.

DISCUSSION

On appeal, defendants contend the superior court 

committed reversible error in denying their section 1170.95 

petitions. Defendants claim the evidence was insufficient to

support the superior court’s findings that each of them was 

a major participant in the underlying felony and acted with 

reckless indifference to human life, and was thus guilty of felony 

murder.

6 In a related argument, Silva also asserts the superior 

court misapplied the law when it declined to consider his youth

at the time of the offense in determining whether he acted with 

reckless indifference to human life. In supplemental briefing

permitted by this court, Silva further argues the superior court

erred in admitting certain evidence against him in violation of 

section 1170.95, subdivision (d)(3) and the Sixth Amendment 

right of confrontation. 

I. Overview of section 1170.95

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

Reg. Sess.) (Senate Bill 1437) amended murder liability under 

6 In Alfredo’s opening brief, he suggests the superior court 

may have found that defendants were guilty of murder under a 

theory of imputed malice. This is incorrect. The superior court 

found that defendants were guilty of felony murder because they 

were major participants in the robbery and acted with reckless 

indifference to human life. The superior court did not make any 

finding as to whether defendants were guilty of malice murder.
10

the felony murder rule and natural and probable consequences 

doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v. 

Gentile (2020) 10 Cal.5th 830, 842–843.) It amended the felonymurder rule by adding section 189, subdivision (e), which 

provides that a participant in the perpetration or attempted 

perpetration of qualifying felonies is liable for felony murder only 

if the person: (1) was the actual killer; (2) was not the actual 

killer but, with the intent to kill, acted as a direct aider and 

abettor in the murder; or (3) the person was a major participant 

in the underlying felony and acted with reckless indifference 

to human life, as described in section 190.2, subdivision (d). 

(Gentile, at p. 842.) It amended the natural and probable 

consequences doctrine by adding section 188, subdivision (a)(3), 

which states that malice shall not be imputed to a person based 

solely on his or her participation in a crime. (Gentile, at pp. 842–

843.)

Senate Bill 1437 also added section 1170.95, which created 

a procedure whereby persons convicted of murder under a nowinvalid felony murder or natural and probable consequences 

theory may petition the superior court to vacate the murder 

conviction and resentence the petitioner on any remaining 

counts. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. 

Gentile, supra, 10 Cal.5th at p. 843.) Senate Bill No. 775 (2021–

2022 Reg. Sess.) (Senate Bill 775), which took effect on 

January 1, 2022, amended section 1170.95 to allow persons

convicted of attempted murder or manslaughter under a felony 

murder or natural and probable consequences theory to seek the 

same relief under the statute. (Stats. 2021, ch. 551, § 2.) 

As amended by Senate Bill 775, section 1170.95 provides 

that a petitioner is eligible for relief if he or she: (1) was charged 
11

with murder or attempted murder by means of a charging 

document that allowed the prosecution to proceed under the 

felony-murder rule, natural and probable consequences doctrine, 

or other theory under which malice is imputed to a person based 

solely on his or her participation in a crime; (2) was convicted of 

murder, attempted murder, or manslaughter; and (3) could no 

longer be convicted of murder or attempted murder due to the 

changes to sections 188 and 189 effectuated by Senate Bill 1437. 

(§ 1170.95, subd. (a).)

If a petitioner makes a prima facie showing of entitlement 

to relief, the superior court must issue an order to show cause 

(§ 1170.95, subd. (c)), and hold an evidentiary hearing to 

determine whether to vacate the murder, attempted murder, 

or manslaughter conviction and to resentence the petitioner 

(§ 1170.95, subd. (d)(1)). At that hearing, the prosecution has 

the burden of proving beyond a reasonable doubt that the 

petitioner is guilty of murder or attempted murder under 

California law as amended by the changes to sections 188 and 

189. (§ 1170.95, subd. (d)(3).) If the prosecution fails to sustain 

its burden of proof, the court must vacate the conviction and any 

allegations and enhancements attached to it, and resentence the 

petitioner on the remaining counts. (§ 1170.95, subd. (d)(3).)

On appeal from an order denying a section 1170.95 petition 

following an evidentiary hearing, we review the superior court’s 

factual findings for substantial evidence. (People v. Clements

(2022) 75 Cal.App.5th 276, 298; People v. Garrison (2021)

73 Cal.App.5th 735, 747.) “We ‘ “examine the entire record in the 

light most favorable to the judgment to determine whether 

it contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value that would support a 
12

rational trier of fact in finding [the defendant guilty] beyond a 

reasonable doubt.” ’ ” (Clements, at p. 298.) 

II. Substantial evidence supported the superior court’s 

findings that defendants were not entitled to relief 

under section 1170.95

Defendants contend the superior court erred in finding 

that they were not eligible for relief under section 1170.95

because the People failed to prove beyond a reasonable doubt that 

they were guilty of felony murder under the newly amended law. 

Defendants specifically challenge the sufficiency of the evidence 

supporting the superior court’s findings that they were major 

participants in the robbery and acted with reckless indifference 

to human life. Considering the totality of the record, we conclude 

these findings were supported by substantial evidence. 

A. Governing law on felony murder

As amended by Senate Bill 1437, section 189, 

subdivision (e)(3), provides that a participant in certain felonies, 

including robbery, in which a death occurs is liable for murder if 

he or she was “a major participant in the underlying felony and 

acted with reckless indifference to human life, as described in 

subdivision (d) of Section 190.2,” the felony-murder special 

circumstance statute. Section 190.2, subdivision (d), in turn 

states that “every person, not the actual killer, who, with reckless 

indifference to human life and as a major participant” aids or 

abets an enumerated felony that results in death may be 

convicted of special circumstance murder and sentenced to death 

or imprisonment for life without parole. “The statute, by its text, 

imposes an actus reus requirement, major participation in the 

enumerated felony, and a mens rea requirement, reckless 
13

indifference to human life.” (In re Scoggins (2020) 9 Cal.5th 667, 

674.)

Roughly 20 years after defendants’ convictions in this case, 

the California Supreme Court in People v. Banks (2015) 

61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 (Clark) 

clarified the meaning of the “major participant” and “reckless 

indifference” requirements of section 190.2, subdivision (d). The

Banks court identified a nonexclusive list of factors for 

determining whether an aider and abettor was a 

major participant in the underlying felony: “What role did the 

defendant have in planning the criminal enterprise that led 

to one or more deaths? What role did the defendant have in 

supplying or using lethal weapons? What awareness did the 

defendant have of particular dangers posed by the nature of the 

crime, weapons used, or past experience or conduct of the other 

participants? Was the defendant present at the scene of the 

killing, in a position to facilitate or prevent the actual murder, 

and did his or her own actions or inaction play a particular role 

in the death? What did the defendant do after lethal force was 

used?” (Banks, at p. 803, fn. omitted.) With respect to the 

reckless indifference element, Banks explained that “[r]eckless 

indifference to human life ‘requires the defendant be “subjectively

aware that his or her participation in the felony involved a grave 

risk of death.” ’ ” (Id. at p. 807.) “Awareness of no more than 

the foreseeable risk of death inherent in any armed crime is 

insufficient; only knowingly creating a ‘grave risk of death’ 

satisfies” the mens rea requirement. (Id. at p. 808.)

The following year, in Clark, supra, 63 Cal.4th at pages 616 

to 618, the Supreme Court further elaborated on the mental state

required to demonstrate reckless indifference to human life. As 
14

Clark explained, the reckless indifference element of a felonymurder special circumstance finding “encompasses a willingness 

to kill (or to assist another in killing) to achieve a distinct aim, 

even if the defendant does not specifically desire that death as 

the outcome of his actions.” (Id. at p. 617.) The requisite state of 

mind is “ ‘implicit in knowingly engaging in criminal activities 

known to carry a grave risk of death.’ ” (Id. at p. 616.) Reckless 

indifference to human life thus has both a subjective and 

objective component. (Id. at p. 617.) Subjectively, the defendant 

must consciously disregard risks known to him or her. (Ibid.) 

Objectively, recklessness is determined by “what ‘a law-abiding 

person would observe in the actor’s situation,’ ” that is, whether 

the defendant’s conduct “ ‘involve[d] a gross deviation from the 

standard of conduct that a law-abiding person would observe in 

the actor’s situation.’ ” (Ibid.) The fact that a robbery involved a 

gun, by itself, is insufficient to support a finding of reckless 

indifference to human life. (Id. at p. 617.)

Clark also provided a nonexclusive list of factors to consider 

in evaluating whether a defendant acted with reckless 

indifference to human life: “Did the defendant use or know that a 

gun would be used during the felony? How many weapons were 

ultimately used? Was the defendant physically present at the 

crime? Did he or she have the opportunity to restrain the crime 

or aid the victim? What was the duration of the interaction 

between the perpetrators of the felony and the victims? What 

was the defendant’s knowledge of his or her confederate’s 

propensity for violence or likelihood of using lethal force? What 

efforts did the defendant make to minimize the risks of violence 

during the felony?” (In re Scoggins, supra, 9 Cal.5th at p. 677 

[summarizing Clark factors].) Like the Banks factors, “ ‘[n]o one 
15

of these considerations is necessary, nor is any one of them 

necessarily sufficient.’ ” (Clark, supra, 63 Cal.4th at p. 618.)

B. Substantial evidence supported the findings

that defendants were guilty of felony murder 

Viewing the record in the light most favorable to the 

superior court’s ruling, we conclude the evidence was sufficient to 

support its findings that defendants were guilty of felony murder 

because they were major participants in the robbery and acted 

with reckless indifference to human life. The evidence showed 

that defendants were present for the entire sequence of events 

that culminated in the victims’ tragic deaths. While it is unclear 

to what extent defendants helped formulate the plan for the 

robbery, each of them agreed to participate in the robbery of a 

known drug residence armed with guns. 

Each defendant was carrying a loaded firearm when the 

group approached the residence and first attempted to gain entry 

through a ruse. Each defendant also was aware that the 

residence was occupied once Barraza replied that the person they 

were looking for did not live there and refused to open the door. 

Seconds later, and without warning, Silva fired the sawed-off

shotgun at the door, leaving a hole underneath the doorknob and 

causing a fragment from the shattered door to injure Barraza’s 

hand. Silva’s act of firing a shotgun blast through the front door 

clearly did not reflect an effort to minimize the risk of violence to 

the occupants of the residence, but rather was an escalation of 

violence against these young victims. 

The evidence further showed that defendants entered the 

residence displaying their firearms. Defendants then acted as a 

team with each of them in a defined role. While Silva and 

Alfredo rummaged through the home searching for items to take, 
16

Jorge stood at the doorway of the entrance, holding a loaded 

semiautomatic handgun and serving as a lookout. This was 

evidence of a preplanned, organized effort. Jorge’s role as the 

lookout also supported an inference that the group was planning 

to make a hasty escape. As the superior court noted, the purpose 

of a lookout is “to get out, get out quickly, [and] flee the police.” 

During the course of the robbery, the violence inside the 

residence continued to escalate. Alfredo pointed his fully loaded 

revolver at Barraza and the two young children who were inside 

the home. Both Alfredo and Silva also made threats of violence

against Barraza, with Alfredo threatening to kill Barraza and 

Silva threatening to rape her. Defendants fled the residence

together once Jorge alerted his companions that the police were

coming. Based on such evidence, the superior court reasonably 

could infer that, at this point in the robbery, each defendant was 

aware of and willingly involved in the violent manner in which 

the crime was being committed, and knowingly had engaged in 

criminal activities that carried a grave risk of death. (People v. 

Banks, supra, 61 Cal.4th at pp. 801, 803; Clark, supra, 63 Cal.4th 

at p. 616.)

The superior court also reasonably could infer that once 

defendants exited the residence with the police in close pursuit, 

each of them was faced with a choice. They could surrender to 

the police, attempt to flee the scene on foot, or try to escape in 

the car driven by Aguilera. Given that the police were rapidly 

approaching the scene, defendants could have anticipated that 

Aguilera would be driving the getaway car at a high rate of speed

to evade the pursuing officers, thus endangering the lives of the 

car’s occupants and other passing motorists. Defendants still

chose the getaway car. None of them sought to minimize the risk 
17

of violence posed by a high speed car chase by surrendering or 

trying to flee the scene on foot.7 A short distance from the

residence, while being chased by the police, Aguilera ran a stop 

sign and crashed into another vehicle, killing two of its occupants

and himself and seriously injuring two others. Each defendant 

was present in the getaway car when the fatal crash occurred. 

The evidence also demonstrated that, immediately after the

crash, one of defendants, likely Alfredo, fired his weapon from the 

car. Defendants then ran from scene of the collision with Alfredo

still carrying his gun and Jorge holding a bag of money taken 

from the residence. None of defendants called for assistance or

attempted to render aid to the victims of the crash. While Silva 

later returned to the scene of the collision, he did so only briefly 

after changing his clothes at a nearby laundromat so that he 

would not be recognized. On this record, the totality of 

7 Silva argues that he told the detective shortly after his 

arrest, and later the probation department, that he had asked 

Aguilera to stop the car once he saw the police were there. At the 

evidentiary hearing on the section 1170.95 petitions, however, 

the superior court did not find Silva’s statement about wanting to 

stop the car to be credible, describing it as a “very self-serving 

statement” that was not corroborated by the other defendants. 

As the fact finder at that hearing, the superior court was required 

to “review all the relevant evidence, evaluate and resolve 

contradictions, and make determinations as to credibility.” 

(People v. Clements, supra, 75 Cal.App.5th at p. 298.) While Silva 

seeks to challenge the superior court’s credibility determination 

about his statement on appeal, “[t]he reviewing court does not 

reweigh the evidence or determine credibility anew.” (People v. 

Price (2021) 71 Cal.App.5th 1128, 1154, review granted Feb. 9, 

2022, S272572.)
18

defendants’ conduct during the robbery and flight supported a 

finding that each of them was a major participant in the felony

and exhibited a reckless disregard for human life. 

In arguing that the evidence was insufficient to support the 

findings that they were guilty of felony murder, defendants focus 

on the period of time inside the getaway car rather than inside 

the residence. In particular, defendants assert that the deaths 

in this case did not occur during the “actual robbery” inside the 

home, but rather were the result of the car accident that took 

place after the robbery as they were attempting to flee the scene. 

Defendants further claim that, at the time of the collision, they 

were mere passengers in the car driven by Aguilera, at which 

point they had no ability to control Aguilera’s conduct or to 

prevent the collision from occurring. 

It is well-established, however, that “ ‘ “[t]he crime of 

robbery is not confined to the act of taking property from 

victims.” ’ ” (People v. Debose (2014) 59 Cal.4th 177, 205.) 

Rather, “the commission of a robbery is ongoing ‘ “until the 

robber has won his way to a place of temporary safety.” ’ 

[Citation.] A robber has not reached a place of temporary safety 

while an immediate and active pursuit to recover the property is 

in progress.” (Ibid.) Additionally, under the doctrine known as 

the escape rule, a “ ‘killing committed by a robber during his 

or her flight from the scene of the crime, and before reaching a 

place of temporary safety, comes within section 189.’ ” (People v. 

Wilkins (2013) 56 Cal.4th 333, 341.) Even where the killing is 

unintentional, “ ‘[f]elony-murder liability continues throughout 

the flight of a perpetrator from the scene of a robbery until the 

perpetrator reaches a place of temporary safety because the 

robbery and the accidental death, in such a case, are parts of a 
19

“continuous transaction.” ’ ” (Id. at p. 345.) Appellate courts 

accordingly have upheld felony-murder convictions in cases 

where the defendant accidentally killed another motorist in a

vehicle collision that occurred as the defendant was fleeing the 

scene and had not yet reached a place of temporary safety. (See, 

e.g., People v. Russell (2010) 187 Cal.App.4th 981, 991–992 

[shortly after fleeing scene of burglary, defendant was observed 

by police and began driving at high rate of speed, causing traffic

collision that killed victim]; People v. Thongvilay (1998) 

62 Cal.App.4th 71, 79–80 [while being pursued in his car by 

witness to burglary, defendant ran a red light and crashed into 

another vehicle, killing victim]; People v. Johnson (1992) 

5 Cal.App.4th 552, 561–562 [defendant fled scene of robbery in 

stolen car and accidentally struck another motorist, causing her 

death].)

Here, there is no dispute that the vehicle collision that 

killed the victims occurred moments after defendants had fled 

the scene of the robbery and before they had reached a place of 

temporary safety. The crime was therefore ongoing when the 

fatal crash occurred, and the robbery and the deaths were part of 

one continuous transaction. While Aguilera was the person who 

actually killed the victims through his reckless driving, under the 

felony-murder rule, as amended by Senate Bill 1437, defendants

remained liable for murder if they were major participants in the 

robbery and acted with reckless indifference to human life. In 

determining defendants’ culpability, the superior court properly 

considered their conduct during the entire sequence of events 

that resulted in the victims’ deaths. Contrary to defendants’ 

contention on appeal, the court did not focus solely on their 

violent actions inside the residence while discounting their lack 
20

of violence inside the getaway car. Rather, the record reflects 

that the court examined the totality of each defendant’s conduct, 

from the time the group first approached an inhabited residence 

armed with loaded guns to the time they chose to flee the scene of 

the crash on foot rather than aid the victims. While defendants 

may not have been able to prevent the collision from occurring

once they became passengers in the speeding getaway car, the 

totality of their conduct during the robbery and flight

demonstrated a conscious disregard for the grave risk of death 

that their actions created. Under these circumstances, there was 

substantial evidence to support the superior court’s findings that 

each defendant was a major participant in a felony resulting in

death, and acted with reckless indifference to human life. 

III. Silva has not shown prejudicial error in the alleged 

failure to consider defendants’ youth 

Silva argues the superior court misapplied the law when 

it expressly declined to consider his young age at the time of the 

offense in deciding whether he was entitled to relief under 

section 1170.95.8 We conclude the alleged error in failing 

8 While Jorge expressly joined in the arguments raised by 

his coappellants to the extent they may benefit him, Alfredo did 

not do so. Ordinarily, a party’s failure to join in a coappellant’s 

claim, or to provide particularized argument as to why a claim 

accrues to that party’s benefit, forfeits the issue on appeal. (See 

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363.) 

However, because Alfredo was a minor at the time of the offense 

and the superior court did not distinguish between defendants in 

its comments regarding how their youth factored into its 

analysis, we exercise our discretion to treat Silva’s argument as 

accruing to the benefit of each defendant, including Alfredo.
21

to consider defendants’ youth was harmless because it is not 

reasonably probable that any of defendants would have achieved 

a more favorable result in the absence of the purported error. 

At the evidentiary hearing, both counsel for Alfredo and 

counsel for Silva identified youth as a factor in arguing why their 

clients were not culpable for felony murder. Alfredo’s counsel 

noted that Alfredo was “a 17-year-old young man” when “he was 

involved in a robbery [in] which he did not commit any acts of 

aggression or shooting the gun,” the “conduct during the robbery 

did not evolve into a death,” and the “death in this case was an 

unintended victim . . . as a result of a traffic accident.” Silva’s 

counsel pointed out that his client “was 19 when he foolishly 

agreed to participate in this robbery,” and that he “never 

contemplated a car chase, a deadly crash.” Silva’s counsel also 

noted that, during the robbery, Silva used the shotgun “as a tool” 

to gain entry into the residence and “didn’t think anybody would 

be hurt or killed by him shooting at the lock of the door.” 

After considering the Banks and Clark factors and finding 

that each defendant was a major participant in the robbery and 

acted with reckless indifference to human life, the superior court 

stated, “Now . . . I’m not ignoring their relatively young age. I get 

that and I’m cognizant of that. But I don’t believe . . . the case 

law says I have to look at . . . what would a 17 or 18-year-old do. 

Do I evaluate it from the mind of a 17-year-old or 18-year-old? I 

don’t think that’s what the case law says. Those considerations 

come into play potentially in decisions. Do we charge special 

circumstances? They can’t get LWOP, I believe, if they were 

juveniles at the time. I think that’s the current state of the 

law. . . . [¶] . . . [¶] But then it’s also for the parole board to make 
22

those determinations. If there are any Franklin hearings,[9]

those issues come into play down the line. But not at this 

juncture.” 

Since the superior court’s ruling in this case, several 

appellate courts have held that a juvenile defendant’s youth at 

the time of the offense is relevant to determining whether he or 

she was a major participant in the felony and acted with reckless 

indifference to human life. (See, e.g., In re Moore (2021) 

68 Cal.App.5th 434; People v. Harris (2021) 60 Cal.App.5th 939, 

review granted Apr. 28, 2021, S267802; People v. Ramirez (2021) 

71 Cal.App.5th 970.) In Moore, for instance, the defendant, who 

was 16 years old when he participated in a deadly armed robbery,

challenged the sufficiency of the evidence supporting a robberymurder special circumstance finding. (Moore, at p. 439.) In 

vacating that finding, the Moore court concluded that “a 

defendant’s youth at the time of the offense should be a factor 

in determining whether that defendant acted with reckless 

9 A person convicted of a controlling offense committed 

when he or she was under the age of 26 is entitled to a youth 

offender parole hearing during the 15th year of incarceration if 

he or she received a determinate sentence; during the 20th year 

of incarceration if he or she received a life term of less than 

25 years to life; and during the 25th year of incarceration if he or 

she received a term of 25 years to life. (§ 3051, subd. (b)(1)–(3).) 

Recognizing that assembling information on youth-related 

mitigating factors is a task more easily accomplished at the time 

of sentencing rather than decades later at a parole hearing, the 

Supreme Court in People v. Franklin (2016) 63 Cal.4th 261 held a 

defendant must be permitted at the time of sentencing to make a 

record of those factors, a proceeding that has since become known 

as a Franklin hearing. (See In re Cook (2019) 7 Cal.5th 439, 459.)
23

indifference to human life,” and that the evidence failed to 

establish that Moore had acted with the requisite mental state. 

(Ibid.) Moore, at page 454, explained, “Moore, as a 16 year old, 

lacked ‘ “the experience, perspective, and judgment” ’ to 

adequately appreciate the risk of death posed by his criminal 

activities. [Citations.] To the extent the Clark 

factors . . . support a finding of reckless indifference for an 

adult—an issue we do not decide today—those factors 

undoubtedly preclude such a finding when viewed from the 

lens of Moore’s youth.” (See Harris, at p. 960 [given 17-year-old 

defendant’s “youth at the time of the crime . . . [citations], it is far 

from clear that [he] was actually aware ‘of particular dangers 

posed by the nature of the crime, weapons used, or past 

experience or conduct of the other participants’ ”]; Ramirez, at 

p. 990 [15-year-old defendant’s “youth at the time of the shooting 

greatly diminishes any inference he acted with reckless 

disregard for human life by participating in the attempted 

carjacking knowing [his coparticipant] was armed”].)

Relying on these recent cases, Silva asserts the superior 

court misapplied the law when it refused to consider Silva’s age 

at the time of the offense in determining whether he had acted 

with reckless indifference to human life. As Silva acknowledges, 

however, the defendants in Moore, Harris, and Ramirez were all 

juveniles at the time of the relevant crime. The United States 

Supreme Court precedent on which these decisions relied also 

involved juvenile offenders. (See, e.g., J. D. B. v. North Carolina

(2011) 564 U.S. 261, 265 [Miranda10 custody analysis must 

include consideration of 13-year-old suspect’s age]; Miller v. 

10 Miranda v. Arizona (1966) 384 U.S. 436.
24

Alabama (2012) 567 U.S. 460, 465 [mandatory sentences of life 

without parole for 14-year-old defendants convicted of murder 

violated Eighth Amendment]; Graham v. Florida (2010) 560 U.S. 

48, 52–53 [16-year-old defendant’s sentence of life without parole

for nonhomicide crime violated Eighth Amendment].) While 

Alfredo was 17 years old at the time of the robbery in this case,

both Jorge and Silva were 19 years old, and thus, young adults.

Even assuming without deciding that the age of a young 

adult offender is also a relevant factor in the major participant 

and reckless indifference analysis, any error in failing to consider 

the age of each defendant in this case was harmless. To begin 

with, the record is not clear whether the superior court actually 

refused to give any consideration to defendants’ youth in deciding 

whether they were entitled to section 1170.95 relief. While the 

court did state that the case law did not allow it to evaluate the

culpability of defendants “from the mind of a 17-year-old or 18-

year-old,” it also noted that it was cognizant of their “relatively 

young age” at the time of the offense and was “not ignoring” that 

fact. In any event, to the extent that the superior court may have 

erred by refusing to consider defendants’ youth, there is no 

reasonable probability that any of defendants would have 

obtained a more favorable result if the court had taken this one

additional factor into account.11

11 Citing the standard for prejudice articulated in 

Chapman v. California (1967) 386 U.S. 18, Silva contends the

alleged failure to consider his age as a relevant factor in ruling on 

his section 1170.95 petition requires reversal because the error 

was not harmless beyond a reasonable doubt. However, the right 

to a postconviction proceeding for resentencing pursuant to 

section 1170.95 is purely a creation of state law. We therefore 
25

As discussed, there was substantial evidence that each 

defendant actively participated in the violent home-invasion 

robbery, and was subjectively aware that his participation in 

the crime involved a grave risk of death. Each defendant was

physically present during all aspects of the robbery and escape 

that culminated in the victims’ deaths. Silva fired a 12-gauge 

sawed-off shotgun through the front door of the residence,

rummaged through the home searching for drugs and money, and

threatened to sexually assault Barraza inside the home. Jorge 

played an important role as the lookout by standing guard at the 

door of the residence with a loaded semiautomatic gun and

alerting his companions once he saw that the police were close to 

the scene. Alfredo, the only juvenile in the group, pointed his

loaded gun at the young children inside the home, threatened to 

kill Barraza, fired his weapon from the car after the crash 

occurred, and ran from the car, still maintaining possession of his 

weapon. Defendants then chose to run from the scene of 

evaluate the error for prejudice under the harmless error 

standard for state law error articulated in People v. Watson

(1956) 46 Cal.2d 818, not the standard for federal constitutional 

error set forth in Chapman. (See People v. Lewis, supra, 

11 Cal.5th at p. 957 [applying Watson standard to error in failing 

to appoint counsel prior to determining whether petitioner stated 

prima facie case for relief under section 1170.95]; People v. Myles

(2021) 69 Cal.App.5th 688, 706 [applying Watson standard to 

error in admitting certain evidence at section 1170.95 hearing].) 

The Watson standard requires us to evaluate whether the 

defendant has shown that it is “ ‘reasonably probable that a 

result more favorable to the appealing party would have been 

reached in the absence of the error.’ ” (Watson, at p. 837; accord, 

People v. Gonzalez (2018) 5 Cal.5th 186, 195.)
26

the collision rather than aid the victims. While defendants were

relatively young when they participated in the crime, the

evidence did not show that any of them “lacked ‘ “the experience, 

perspective, and judgment” ’ to adequately appreciate the risk 

of death posed by his criminal activities.” (People v. Moore, 

supra, 68 Cal.App.5th at p. 454.) Rather, even considering 

defendants’ youth at the time of the offense as a relevant factor, 

the totality of the circumstances supported the superior court’s 

findings that each defendant was a major participant in the 

robbery and acted with reckless disregard for human life.

IV. Silva has not shown prejudicial error in the alleged 

reliance on inadmissible evidence

In supplemental briefing, Silva also contends the superior 

court erred in denying his section 1170.95 petition because some 

of the evidence on which the court relied in finding him ineligible 

for relief is inadmissible under the recent amendments to 

section 1170.95. We conclude Silva forfeited his claim of error by 

failing to object to the evidence in the superior court, and even if 

not forfeited, the claim lacks merit because any alleged error in 

the admission of the challenged evidence was harmless in this 

case. 

In addition to expanding the class of persons eligible for 

resentencing, Senate Bill 775 amended section 1170.95 to clarify

the scope of evidence that may be considered at the evidentiary 

hearing. (Stats. 2021, ch. 551, § 2.) As amended, section 1170.95,

subdivision (d)(3) now provides, in relevant part: “The admission 

of evidence in the hearing shall be governed by the Evidence 

Code, except that the court may consider evidence previously 

admitted at any prior hearing or trial that is admissible under 

current law, including witness testimony, stipulated evidence, 
27

and matters judicially noticed. The court may also consider the 

procedural history of the case recited in any prior appellate 

opinion. However, hearsay evidence that was admitted in a 

preliminary hearing pursuant to 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. The prosecutor and the petitioner may also offer 

new or additional evidence to meet their respective burdens.”

Silva argues that, based on Senate Bill 775’s amendments 

to section 1170.95, subdivision (d)(3), the superior court can no 

longer rely on hearsay evidence that is not subject to a specific 

exception to the hearsay rule. Silva specifically challenges the 

admissibility of (1) the hearsay testimony in the transcript of 

his preliminary hearing, (2) the hearsay statements in his

probation report, and (3) the entirety of the transcript of his 

codefendants’ trial because Silva was not a party to that 

proceeding.12 Silva further contends that, under the amended 

12 In addition to arguing that this evidence now constitutes 

inadmissible hearsay under the amendments to section 1170.95, 

Silva asserts that admission of the evidence violated his Sixth 

Amendment right of confrontation. However, appellate courts 

consistently have held that the “ ‘retroactive relief provided by 

section 1170.95 reflects an act of lenity by the Legislature “that 

does not implicate defendants’ Sixth Amendment rights.” ’ ” 

(People v. Silva (2021) 72 Cal.App.5th 505, 520; see, e.g., People v. 

James (2021) 63 Cal.App.5th 604, 610; People v. Perez (2020) 54 

Cal.App.5th 896, 908, review granted Dec. 9, 2020, S265254; 

People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.) Although 

Senate Bill 775 amended section 1170.95, subdivision (d)(3) to 

clarify the scope of evidence that is admissible at the evidentiary 

hearing, it did not provide petitioners with the right to confront 
28

statute, only the procedural history portion of this court’s 

prior opinion in Jorge’s appeal is admissible. 

As a threshold matter, Silva forfeited his claims regarding 

the admissibility of the evidence by failing to raise any objection

to such evidence at the hearing before the superior court. A 

“challenge to the admission of evidence is not preserved for 

appeal unless a specific and timely objection was made below.” 

(People v. Anderson (2001) 25 Cal.4th 543, 586; Evid. Code, § 353, 

subd. (a).) Here, Silva not only failed to object to any of the

evidence below, but he attached some of the evidence about 

which he now complains—the probation report and the factual

summary in this court’s prior opinion—to his section 1170.95 

petition. He therefore submitted and relied on the very evidence 

he now says should have been excluded. Even if his evidentiary 

claims had been preserved, however, Silva cannot show any 

prejudicial error in the admission of the challenged evidence.13 

We need not decide whether the evidence that Silva 

seeks to challenge on appeal is no longer admissible under the 

amendments to section 1170.95. Assuming arguendo that the 

challenged evidence is inadmissible, any error in considering 

such material was harmless because the remainder of the 

evidence offered against Silva was sufficient to support the 

witnesses at that hearing. Silva’s confrontation clause claim thus 

fails.

13 In light of our conclusion that admission of the evidence 

was harmless, we find it unnecessary to address Silva’s claim 

that, to the extent he forfeited his evidentiary challenge on 

appeal, his counsel at the section 1170.95 hearing provided 

ineffective assistance by failing to object.
29

superior court’s finding that he was guilty of felony murder. 

As Silva concedes, the portions of the preliminary hearing

transcript in which the investigating officer related Silva’s own

statements to the police are admissible as a party admission 

under an exception to the hearsay rule. (Evid. Code, § 1220 

[statement not made inadmissible by hearsay rule when offered 

against declarant in action to which he is party].) The officers 

also were permitted to testify as to their own personal 

observations because such testimony was not hearsay. (Evid. 

Code, § 1200 [hearsay is statement made other than by witness 

while testifying at hearing and is offered to prove truth of matter 

stated].)

As reflected in the preliminary hearing transcript, Silva 

gave a detailed interview to the police in which he admitted his 

involvement in the robbery. As described by Silva, Aguilera 

conceived of the plan to commit the robbery because he had been

“ripped . . . off” in a drug deal at the residence. Aguilera supplied 

the weapons used in the crime and waited in the getaway car,

while defendants went inside the home armed with guns. Silva 

admitted that he was armed with a “terminator style shotgun,”

and that he fired a shot through the front door. Silva also 

admitted that, upon entering the home, he and his companions

encountered a young woman and children, and that they made 

the woman take them to different rooms as they searched for

items to take. Silva recounted that, after taking money and 

drugs from the home, the group fled in the getaway car with the 

police in close pursuit and that he asked Aguilera to stop the car 

once he realized the police were there. Aguilera refused and 

crashed into another car when he ran a stop sign. Silva further 

recounted that, after fleeing on foot to a nearby laundromat 
30

where he changed his clothes, he briefly returned to the scene of 

the accident “to see what was happening” and then left. 

Based on Silva’s own admissions to the police, the superior 

court reasonably could find that Silva was a major participant in 

the robbery and acted with reckless indifference to human life. 

While Silva did not describe the threats made to Barraza inside 

the residence, he admitted that he was present in the residence 

and in the car for the entire duration of the incident that resulted 

in the victims’ death. Silva further admitted that each of the 

defendants was armed with a gun, which supported the inference 

that they anticipated the residence could be occupied during the 

evening and that they planned to use their weapons against the 

occupants to facilitate their crime. Silva also admitted that he 

fired a shotgun blast through the front door of the residence to 

gain entry, which the superior court reasonably could infer placed 

the individuals on the other side of the door at grave risk of 

harm. Moreover, Silva admitted that, immediately following the 

collision, he chose to run from the scene of the accident rather 

than aid the victims. On this record, there is no reasonable 

probability that Silva would have obtained a more favorable 

result on his section 1170.95 petition even if the superior court 

had excluded the challenged evidence. Silva accordingly has 

failed to satisfy his appellate burden of showing prejudicial error.
31

DISPOSITION

The orders denying the petitions for resentencing filed by 

Jorge Antonio Espinoza, Alfredo Sanchez Espinoza, and Antonio 

Silva are affirmed.

NOT TO BE PUBLISHED.

KIM, J.*

We concur:

EDMON, P. J.

EGERTON, J.

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

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

Constitution.