People v. Mejia CA2/8 ( 2023 )

Filed 3/9/23 P. v. Mejia CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
THE PEOPLE, B313960
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA318905)
v.
JOSUE MANUEL MEJIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. Charlaine F. Olmedo, Judge. Affirmed.
Steven Schorr, 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, Daniel C. Chang and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Josue Manuel Mejia appeals from
the denial of his petition for resentencing pursuant to Penal Code
section 1170.95. During the pendency of this appeal, former
section 1170.95 was renumbered as section 1172.6 with no change
in the text. (Stats. 2022, ch. 58, § 10.) We refer to the statute only
by its new designation for clarity.
We affirm.
BACKGROUND
In the early morning hours of October 12, 2005, defendant
and four fellow 18th Street gang members (Jesus Lorenzo, Adam
Perez, Edwin Caseros and Carlos Hernandez) went to the home of
a rival gang member (Leonardo Pulido) with whom codefendant
Perez had a long and contentious history. After unsuccessfully
trying to get Pulido to come outside, defendant and his
accomplices went around to the back of Pulido’s apartment
building, repeatedly threw rocks at Pulido’s bedroom window, and
then attempted to scale the wall and climb into the apartment
through the window. Lorenzo, who was armed and the first to
attempt to get into the apartment, climbed part of the way
through the bedroom window and was shot and killed by Pulido.
Before defendant and his accomplices fled the scene, several shots
were fired at Pulido’s apartment. Shell casings found outside the
apartment matched the handgun found near defendant upon his
arrest a short distance from the scene. It was later determined
that Lorenzo’s blood was on the clothes defendant was wearing at
the time of his arrest.
In 2010, defendant, Perez, Caseros and Hernandez were
prosecuted for the first degree murder of Lorenzo on a provocative
act theory, the premeditated attempted murder of Pulido,
attempted residential burglary and shooting at an inhabited
dwelling. The jury convicted defendants and his accomplices on
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all counts and found true a gang-murder special-circumstance
allegation, as well as gang and firearm use allegations.
Defendant was sentenced to 47 years to life, plus 40 years in
prison.
In 2012, this court, in a published decision, struck and
reduced certain statutory fines and fees, but otherwise affirmed
defendant’s conviction, as well as the convictions of his surviving
three accomplices. (People v. Mejia (2012) 211 Cal.App.4th 586(Mejia).)
In the fall of 2018, Senate Bill 1437 (2017–2018 Reg. Sess.)
was passed, amending Penal Code sections 188 and 189 to narrow
accomplice liability for felony murder and eliminate the natural
and probable consequences doctrine as it relates to murder.
(Stats. 2018, ch. 1015, § 2, § 3.) Senate Bill 1437 also added
section 1172.6 which sets forth a procedure for individuals
convicted of felony murder or murder under a natural and
probable consequences theory to petition for resentencing. (Stats.
2018, ch. 1015, § 4.)
In early 2019, defendant filed, in propria persona, a petition
for resentencing alleging he was not the actual killer, that he was
convicted as an accomplice under theories of felony murder and
the natural and probable consequences doctrine, and he could not
be convicted of murder under the amended murder statutes. The
trial court granted defendant’s request for appointed counsel and
received briefing from the parties.
On April 5, 2019, the court held a hearing at which counsel
and defendant were present. Counsel submitted on their
paperwork. The court referred to its earlier denial of the petition
for resentencing filed by codefendant Perez, saying it was denying
defendant’s petition on the same bases. The court said “defendant
was convicted under the provocative act murder theory of liability,
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and the Court of Appeal specifically found that defendant
harbored express malice. In this case, because the jury convicted
defendant of first degree murder, they necessarily found that the
murder was willful, deliberate and premeditated.”
The trial court quoted several times from our opinion in
Mejia, including that “the evidence was overwhelming that each
[accomplice] arrived at the scene that night for the purpose of
killing or assisting in the killing of [Pulido].” (Mejia, supra, 211
Cal.App.4th at p. 621.) The court also found it significant the jury
had been instructed that in order to find defendant guilty of
attempted residential burglary, they had to find that he harbored
a specific intent to kill, and the jury had in fact convicted
defendant of residential burglary.
The court concluded by saying that “[b]ased upon the Court
of Appeal’s specific finding that defendant’s murder conviction
was necessarily based on express malice and provocative act
murder, this court finds that the defendant does not qualify for
the relief requested, and the petition is denied.”
Defendant’s appointed counsel failed to timely file a notice
of appeal on his behalf. Defendant subsequently filed, in propria
persona, another petition seeking resentencing on the same
grounds as his first petition. Without appointing counsel or
accepting briefs, the court denied defendant’s second petition,
referring to its denial of defendant’s “identical” first petition.
On August 10, 2021, we granted defendant’s application for
relief from default for failing to timely appeal the denial of his
petition for resentencing. We grant defendant’s request to take
judicial notice of the jury instructions from the 2010 trial.
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DISCUSSION
Defendant argues the trial court improperly denied his
petition at the prima facie stage by erroneously relying on the
factual and legal analysis from this court’s prior opinion in Mejia.
He says he is entitled to an evidentiary hearing pursuant to Penal
Code section 1172.6, subdivision (d) because the record of
conviction does not establish as a matter of law he is ineligible for
relief. He says the jury may have relied on the now invalid
natural and probable consequence theory to convict him or, even
assuming the jury relied on provocative act murder, his liability
as a nonprovocateur accomplice is based on imputed malice and
therefore invalid in light of the amendments effected by Senate
Bill 775 (2021–2022 Reg. Sess.). Finally, defendant argues the
changes to the gang enhancement statute effected by Assembly
Bill 333 (2021–2022 Reg. Sess.) make it unlikely he could be
convicted of murder under current law because the prosecution
could not establish intent to kill based on a gang motive.
We conclude the record of conviction conclusively
establishes defendant’s ineligibility and therefore affirm the
denial of his petition. (People v. Ervin (2021) 72 Cal.App.5th 90,
101 [appellate court reviews de novo the denial of a resentencing
petition at the prima facie stage].)
1. Any Error by the Trial Court in Relying on Mejia Was
Harmless.
In People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis), the
Supreme Court described the trial court’s prima facie inquiry as
“limited.” Lewis says the trial court must accept as true the
allegations in the defendant’s petition and should not reject those
allegations “ ‘on credibility grounds without first conducting an
evidentiary hearing.’ ” (Ibid.) Lewis instructs however that the
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court’s review at the prima facie stage may nonetheless include
consideration of the record of conviction from which a finding of
ineligibility may be made as a matter of law. “ ‘[I]f the record,
including the court’s own documents, “contain[s] facts refuting the
allegations made in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.” ’ ”
(Ibid.)
Lewis cautioned the “ ‘prima facie bar was intentionally and
correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) In
reviewing any part of the record of conviction, including a prior
appellate opinion, “a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ”
(Ibid.)
Penal Code section 1172.6, as amended by Senate Bill 775,
now provides that the court may consider the “procedural history”
of a prior appellate opinion at an evidentiary hearing pursuant to
subdivision (d)(3). At least one court has concluded that this
statutory language also necessarily applies at the prima facie
stage; the appellate opinion affirming a conviction is not part of
the record of conviction; and the factual summary in the appellate
opinion may not be considered at either the prima facie stage or
the evidentiary hearing. (People v. Flores (2022) 76 Cal.App.5th
974, 987–988.)
Whether or not the trial court erred by relying on more than
the procedural history recited in Mejia at the prima facie stage,
any such error was harmless. We find, based on our independent
review of the jury instructions and verdict, which are part of the
record of conviction, that defendant is ineligible for resentencing
relief.
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2. The Jury Instructions and Verdict Conclusively
Establish Defendant’s Ineligibility for Relief.
Defendant concedes the trial court had the authority to rely
on the jury instructions and the verdict to deny relief at the prima
facie stage but contends that they do not conclusively establish his
ineligibility. We disagree.
The Legislature amended the murder statutes “ ‘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.” (Stats. 2018, ch. 1015, § 1,
subd. (f) . . . .)’ ” (People v. Strong (2022) 13 Cal.5th 698, 707–708,
italics added.)
To effectuate this goal, Penal Code section 1172.6 was
enacted to provide a means for individuals convicted under the
former law to petition for relief. As originally enacted, Senate Bill
1437 limited the right to resentencing relief to those individuals
convicted of murder under the felony-murder rule or the natural
and probable consequences doctrine. (Lewis, supra, 11 Cal.5th at
p. 957.) The Legislature subsequently passed Senate Bill 775
which, as relevant here, expanded the scope of those authorized to
file resentencing petitions to include individuals convicted of
murder “under any theory under which malice is imputed to a
person based solely on that person’s participation in a crime.”
(Stats. 2021, ch. 551.)
Defendant contends it cannot be ruled out that the jury
convicted him of the murder of Lorenzo based on a theory of
imputed malice. Not so. Looking at the entire charge to the jury
and the verdict forms, the record conclusively demonstrates the
jury found defendant guilty of participating in the charged crimes,
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including the murder of Lorenzo, with express malice, i.e., intent
to kill.
The attempted murder instruction (CALJIC No. 8.66) told
the jury that to find a defendant guilty of the attempted murder of
Pulido, they must conclude the defendant “harbored express
malice aforethought, namely, a specific intent to kill unlawfully
another human being.”
The attempted residential burglary instructions also
required the jury to find defendant acted with the intent to kill.
CALJIC No. 14.50 was modified to read that every person who
enters any building or inhabited dwelling house “with the specific
intent to commit murder” is guilty of burglary. CALJIC No. 14.54
told the jurors that “[i]n order for an accused to be guilty of
burglary as an aider and abettor, he must have knowledge of the
perpetrator’s unlawful purpose and must have formed the intent
to commit, encourage or facilitate commission of the crime before
the perpetrator’s final departure from the structure.”
The jury was also correctly instructed that to be guilty of
aiding and abetting, a defendant must have knowledge of the
direct perpetrator’s unlawful purpose, intend to encourage or
facilitate commission of that crime, and by act or advice actually
aid or facilitate that crime. (CALJIC No. 3.01.) And, they were
instructed with CALJIC Nos. 1.01, 1.11, 17.00 and 17.02 which
told them to consider the instructions as a whole, that any
reference to “defendant” in any jury instruction applied to each
defendant unless the instruction said otherwise, and that they
were required to decide the guilt of each defendant separately
from every other defendant and separately as to each count and
special circumstance.
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These instructions, viewed collectively, required the jury to
find that each defendant formed the specific intent to murder
Pulido before Lorenzo attempted to gain entry through the
bedroom window, which resulted in Lorenzo being fatally shot.
The jury concluded that defendant and each of his three surviving
accomplices were guilty of the attempted murder of Pulido and
attempted residential burglary. The jury therefore necessarily
concluded that any defendant who did not himself take a
provocative act that resulted in Lorenzo’s death, nevertheless
aided and abetted the surviving provocateur defendant in the
commission of the underlying crimes with the intent to kill. One
who acts with intent to kill is not entitled to relief.
We reject defendant’s contention that accomplice liability
under a provocative act theory is based on imputed malice. As the
Supreme Court has made clear, a murder conviction under the
provocative act doctrine “requires proof that the defendant
personally harbored the mental state of malice, and either the
defendant or an accomplice intentionally committed a provocative
act that proximately caused an unlawful killing.” (People v.
Gonzalez (2012) 54 Cal.4th 643, 655; accord, People v. Mancilla
(2021) 67 Cal.App.5th 854, 867–868.) We also reject defendant’s
suggestion the passage of Senate Bill 775 effectively eliminated
accomplice liability for provocative act murder. Defendant does
not cite authority or persuasive argument so holding.
3. Assembly Bill 333
Defendant also contends the passage of Assembly Bill 333
warrants a reversal and remand for an evidentiary hearing.
Defendant concedes he is not seeking ameliorative relief directly
under Assembly Bill 333. Rather, he says it is relevant to the
question of whether he could be convicted of murder under current
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law because the prosecution could not establish intent to kill
based on the alleged gang motive.
We do not agree. The changes effected by Assembly Bill 333
concern gang allegations pursuant to Penal Code section 186.22.
The amendments have no effect on the use of gang evidence
relevant to a charged offense. (People v. Hernandez (2004)
33 Cal.4th 1040, 1049 [evidence of a defendant’s gang affiliation—
including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and
the like—can help prove identity, motive, modus operandi, specific
intent, means of applying force or fear, or other issues pertinent to
guilt of the charged crime]; accord, People v. Ramirez (2022)
13 Cal.5th 997, 1095 [evidence of gang membership is admissible
on the charged offense assuming its probative value outweighs
prejudice].) The gang evidence presented at trial that was
relevant to motive and intent would still be admissible under
current law, irrespective of whether any gang enhancement was
pursued.
DISPOSITION
The order denying defendant and appellant Josue Manuel
Mejia’s petition for resentencing is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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