People v. Mora CA2/3

Filed 12/8/20 P. v. Mora 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B304503
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA085503
v.
JESUS MORA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Frederick N. Wapner, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1994, petitioner Jesus Mora was convicted of first degree
murder in which he personally used a handgun. After the
enactment of Senate Bill No. 1437 (S.B. 1437) (Stats. 2018,
ch. 1015), Mora petitioned for resentencing under Penal Code
section 1170.95, and the trial court appointed counsel to
represent him.1 The court ultimately denied the petition on the
ground that Mora, as the actual killer convicted under a theory of
malice aforethought, was not entitled to relief under the statute.
On appeal, Mora contends that the court erred by basing its
conclusion on the factual summary in the opinion from his 1995
appeal. We conclude any error was harmless and affirm.
BACKGROUND
By information dated January 6, 1994, Mora was charged
with one count of murder (§ 187, subd. (a); count 1) and one count
of attempted murder (§ 664/187, subd. (a); count 2). The
information alleged Mora personally used a firearm (§ 12022.5) in
the commission of both offenses.
A jury found Mora guilty of first degree murder and found
the personal-use allegation true.2 The court sentenced Mora to 25
years to life for count 1 plus five years for the firearm
enhancement, to run consecutively. The conviction was affirmed
on appeal. (People v. Mora (Aug. 8, 1995, B086038) [nonpub.
opn.].)
1 All undesignated statutory references are to the Penal Code.
2 The record does not reveal what happened to count 2.
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In April 2019, Mora filed a petition for resentencing under
section 1170.95.3 He asked the court to vacate his murder
conviction and resentence him under section 1170.95. Mora
alleged that the information filed against him allowed the
prosecution to try him under a theory of felony murder or murder
under the natural-and-probable-consequences doctrine, that he
was convicted under one of those theories, and that he could not
now be convicted of murder under the recent changes to the
Penal Code contained in S.B. 1437, of which section 1170.95 was
a part. He also asked the court to appoint counsel to represent
him.
The court appointed counsel to represent Mora and
received a response from the prosecutor in accordance with
section 1170.95, subdivision (c). The prosecution argued that
Mora was the actual killer, and as such, was not entitled to relief.
In support of this argument, the prosecutor submitted a copy of
the opinion from Mora’s direct appeal but did not submit any
documents from the trial itself.4 Defense counsel did not file a
written response.
On January 7, 2020, the court denied the petition. Mora
filed a timely notice of appeal.
3 Mora also filed a second petition in July 2019. The only difference
between the two documents appears to be that the second petition was
signed whereas the first petition was not.
4The minute order recording the petition’s filing says “***NO LEGAL
FILE***”
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DISCUSSION
Mora argues that the court, in denying his petition,
improperly relied on the facts as recounted in the opinion from
his prior appeal. We conclude that any error was harmless
because the jury instructions and verdict form establish that
Mora was convicted as the actual killer under a malice theory,
and as such, is not eligible for relief under section 1170.95.
1. S.B. 1437
S.B. 1437, which took effect on January 1, 2019, changed
the law of murder to ensure a “person’s culpability for murder [is]
premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
First, S.B. 1437 limited accomplice liability for murder.
Under prior California law, every accomplice to an enumerated
felony could be convicted of first degree murder if a death
occurred during the commission of that felony—regardless of
whether the accused killed or intended to kill. (See People v.
Dillon (1983) 34 Cal. 3d 441, 462–472.) Similarly, “a defendant
who aided and abetted a crime, the natural and probable
consequence of which was murder, could be convicted not only of
the target crime but also of the resulting murder”—regardless of
whether he acted with malice aforethought. (In re R.G. (2019) 35
Cal. App. 5th 141, 144.)
Now, however, a person may be convicted of murder only if:
(1) he was the actual killer; or (2) with the intent to kill, he aided
and abetted the actual killer’s commission of murder; or (3) he
acted as a “major participant” in a felony listed in section 189 and
acted with “reckless indifference to human life.” (§ 189, subd. (e),
4
as amended by Stats. 2018, ch. 1015, § 3; § 188, subd. (a)(3), as
amended by Stats. 2018, ch. 1015, § 2.)
Second, S.B. 1437 abolished second degree felony murder.
(Stats. 2018, ch. 1015, § 2, amending § 188, subd. (e)(3).) Thus,
the felony murder doctrine now applies only to those felonies
listed in section 189, subdivision (a), and to accomplices who meet
the requirements in section 189, subdivision (e).
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories the opportunity to petition for resentencing
under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.)
Section 1170.95, subdivision (a), describes who may
petition for resentencing under the statute. Subdivision (b)
explains what information the petition must contain, where the
petitioner must file it, who the petitioner must serve, and what
the court should do if it’s incomplete. Subdivision (c) describes the
process the court uses to determine whether the petitioner is
entitled to an evidentiary hearing. Finally, subdivisions (d)–(g)
describe the procedures for holding an evidentiary hearing, the
type of evidence that may be admitted, the burden of proof, and
the requirements for resentencing an eligible petitioner.
Here, the issue is whether Mora made a prima facie
showing under subdivision (c).
2. Any error was harmless because other court records
establish Mora was convicted as the actual killer.
From the record before us, it appears Mora is correct that
the trial court’s ruling was based on the facts recited in the
opinion in Mora’s direct appeal. He argues that because the facts
in that opinion were recounted in the light most favorable to the
judgment whereas at the prima facie review stage, the court must
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view the facts in the light most favorable to the petitioner, the
court must rely on the trial records themselves, not an appellate
court’s interpretation of those records. (See, e.g., People v.
Franklin (2016) 63 Cal. 4th 261, 280 [“ ‘ “A court may take judicial
notice of the existence of each document in a court file, but can
only take judicial notice of the truth of facts asserted in
documents such as orders, findings of fact and conclusions of law,
and judgments.” ’ [Citations.]”]; Gilmore v. Superior Court (1991)
230 Cal. App. 3d 416, 418–419 [court may not take judicial notice
of facts in an appellate opinion to prove the circumstances of a
crime]; but see People v. Verdugo (2020) 44 Cal. App. 5th 320, 333,
review granted Mar. 18, 2020, S260493 [appellate opinion is part
of the record of conviction that court may consider].)
We need not resolve that issue, however, because any error
in this case was harmless under any standard of prejudice. (See
People v. Watson (1956) 46 Cal. 2d 818; Chapman v. California
(1967) 386 U.S. 18.) Mora’s trial jury was not instructed on either
felony murder or the natural-and-probable consequences
doctrine; it was instructed only on malice aforethought.5 To
convict Mora of first degree murder, the jury had to find that he
personally killed another human being with premeditation and
deliberation. Because Mora was convicted under a valid theory of
murder that survived the changes to sections 188 and 189, he is
ineligible for relief under section 1170.95, and any error is
harmless.
5 On September 30, 2020, this court granted the People’s unopposed
motion to augment the record with, among other things, the jury
instructions and verdict form. As relevant here, the jury was
instructed with CALJIC Nos. 8.00, 8.10, 8.11, 8.20, 8.30, 8.70, and
8.71.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
DHANIDINA, J.
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