People v. Espinoza CA4/2

I. INTRODUCTION

In 2010, defendant Jorge Espinoza pled guilty to voluntary manslaughter (Pen.

Code,1 § 192, subd. (a)) while facing a murder charge. He appeals from an order denying

a petition to vacate his voluntary manslaughter conviction and resentence him under

section 1172.6,2 arguing that the trial court erred by denying his petition without setting

an order to show cause.

On appeal, the parties do not contest that the provocative act theory of murder was

the only viable theory upon which defendant could have been convicted of murder. The

theory applies “[w]hen someone other than the defendant or an accomplice kills during

the commission or attempted commission of a crime.” (People v. Gonzalez (2012)

Cal.4th 643, 654-655 (Gonzalez).) Under this theory, “when the perpetrator of a crime

maliciously commits an act that is likely to result in death, and the victim kills in

reasonable response to that act, the perpetrator is guilty of murder. [Citations.] ‘In such

a case, the killing is attributable, not merely to the commission of a felony, but to the

intentional act of the defendant or his accomplice committed with conscious disregard for

life.’” (Ibid.)

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