People v. Mejorado CA3

Opinion

Filed 9/21/26 P. v. Mejorado CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C102275 Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- v. 2009-00067563, SF111696A)

ANTHONY SANTOS MEJORADO, ORDER MODIFYING Defendant and Appellant. OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

• THE COURT:

It is ordered that the opinion filed in this case on August 31, 2026, be modified as follows:

On page 12, at the end of the disposition paragraph beginning “The trial court’s postjudgment order,” add the following as the last sentence:

If the trial court does not grant relief under section 1172.6, it shall consider any objections the parties raise concerning defendant’s section 1172.75 resentencing.

1 There is no change in the judgment. Defendant’s petition for rehearing is denied.

• BY THE COURT:

/s/ HULL, J. Acting P. J.

/s/ ROBIE, J.

/s/ MAURO, J.

2 Filed 8/31/26 P. v. Mejorado CA3 (unmodified opinion) NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C102275 Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- v. 2009-0006563, SF111696A)

ANTHONY SANTOS MEJORADO, Defendant and Appellant.

In 2013, defendant Anthony Santos Mejorado was convicted of second degree murder along with other crimes, as well as several enhancements. In 2023, defendant petitioned for resentencing under Penal Code1 section 1172.6. The trial court held a hearing on the petition and denied it at the prima facie stage on the basis “[t]he entire record of conviction firmly establishes the only theory that was alleged from day one of this case: [Defendant] was the actual killer.” Defendant appeals this finding and the People contend the jury instructions, closing arguments, and trial evidence require affirming the trial court’s conclusion. We reverse and remand for further proceedings because the record of conviction does not conclusively establish as a matter of law that defendant is ineligible for relief as required at the prima facie stage of section 1172.6.

1 Further undesignated section references are to the Penal Code.

1 (See People v. Curiel (2023) 15 Cal.5th 433, 470 (Curiel) [the question at the prima facie stage is whether the record of conviction “foreclose[s] [eligibility] as a matter of law”].) FACTUAL AND PROCEDURAL BACKGROUND We summarize the evidence deduced at trial as stated in our opinion on defendant’s direct appeal.2 (People v. Mejorado (Nov. 26, 2014, C073485) [nonpub. opn.] (Mejorado).) Defendant’s cousin, “a codefendant who ple[d] guilty before trial in exchange for his testimony,” was in a fight at a house party. (Ibid.) Defendant and his cousin returned to the house and defendant went inside to make sure no one would fight the cousin. (Ibid.) Defendant and the cousin then entered the bedroom of Alfredo Solario and defendant made a comment about the color of Solario’s shirt, demanded he remove it, then punched Solario knocking him off his stool. (Ibid.) “The cousin tried to pull defendant away, but defendant shook him off and hit [Solario] in the head with the stool. The cousin fled the bedroom.” (Ibid.) Defendant and the cousin then left the house with defendant telling one witness “ ‘[y]ou didn’t see anything’ ” while the cousin pointed a gun at this person. (Ibid.) Later that night defendant’s car got flat tires and both he and the cousin beat up a neighbor who tried to help them fix the tires. (Ibid.) Solario died a few days later from extensive traumatic brain injuries. (Mejorado, supra, C073485.) At defendant’s trial, the jury was given CALCRIM Nos. 520 and 521— instructions for murder. The CALCRIM No. 520 instruction explained murder requires express malice—an intent to kill—or implied malice—the natural and probable consequences of an intentional act were knowingly dangerous to human life and defendant deliberately acted with conscious disregard for human life. The CALCRIM 2 We provide this summary of facts from the prior opinion in defendant’s direct appeal solely for context and do not rely on these facts for our analysis or disposition here. (§ 1172.6, subd. (d)(3).)

2 No. 521 instruction explained the degrees of murder: First degree murder means “the murder was willful, deliberate, and premeditated,” and “[a]ll other murders are of the second degree.” The jury was also given CALCRIM No. 875 for assault with force likely to produce great bodily injury, naming the neighbor as the assault victim. The trial court also provided CALCRIM Nos. 400 and 401 on aiding and abetting. The CALCRIM No. 400 instruction stated: “A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” The CALCRIM No. 401 instruction stated that “[t]o prove the defendant guilty of a crime based on aiding and abetting that crime, the [prosecution] must prove” defendant intentionally aided and abetted the perpetrator of the crime while knowing “the perpetrator intended to commit the crime.” During a break in closing arguments, defense counsel asked the trial court outside of the jury’s presence to remove the aider and abettor instruction. Defense counsel stated: “Based on everything that I’ve heard, I don’t think that aiding and abetting instruction should be given. I renew my objection that it should be given.” The court responded: “Well, I’ll note that. But I think, as I mentioned when we did the instructions, the jury could take a different view from both of you and find a different situation, i.e., that both [the cousin] and [defendant] were involved in this homicide. And [it] could determine that, you know, while [the cousin] may have been the perpetrator, that [defendant] may well have been an aider and abettor.” Defense counsel reiterated he thought the instruction was “contrary to the [prosecution’s] theory and the facts of the case as [the defense] s[aw] them.… There’s no basis, in fact, for that series of instructions to be given.” The court continued to disagree, saying: “I don’t think the jury is bound by [the prosecution’s] -- [the prosecution]’s got a number of theories. By [the 3 prosecution’s] theory, [the jury] can look at the facts and make [its] own determination based on the facts and apply the law that exists in the case.” In February 2013, the jury found defendant guilty of second degree murder for the killing of Solario and guilty of assault of the neighbor with a deadly weapon or with force likely to produce great bodily injury with the enhancement he personally inflicted great bodily injury. Defendant was sentenced to an indeterminate term of 70 years to life on the two convictions and a determinate term of eight years for the associated enhancements. Defendant appealed and on November 26, 2014, we affirmed his convictions but vacated certain enhancements and remanded for retrial on the enhancements and resentencing. (Mejorado, supra, C073485.) In April 2017, defendant was resentenced to 15 years to life, plus eight years. In December 2023, defendant filed a form petition for resentencing under section 1172.6 with the box checked asserting he could not now be convicted of murder because of changes made to the murder statutes. The Department of Corrections and Rehabilitation also sent a letter recommending defendant for resentencing based on a recently invalidated one-year prior prison term enhancement. On September 23, 2024, the trial court held a hearing discussing section 1172.6 and other sentencing issues. The court issued a written decision the following day “denying [the] resentencing petition.” (Boldface and capitalization omitted.) After a brief procedural history, the decision had two analysis sections. Under the first section titled “section 1172.6 analysis,” the court concluded the record of conviction—which it said includes “any appellate opinion, all jury instruction[s] and closing arguments”— established defendant “was alleged at all times to be the actual killer of the victim.” (Capitalization omitted.) The court acknowledged the aiding and abetting instruction but found “both counsel discussed aiding and abetting solely and exclusively with regard to a minor ancillary party, [the cousin], and never with regard to [defendant]. The entire 4 record of conviction firmly establishes the only theory that was alleged from day one of this case: [Defendant] was the actual killer.” The second analytical section discussed other resentencing issues. The trial court concluded: “In light of [the] foregoing, the [c]ourt finds that [defendant], as the actual killer based on the entire record of conviction, has not established a prima facie case and is not entitled to resentencing pursuant to … [s]ection 1172.[6]. Nor, as noted … , is [defendant] entitled to any relief under … [s]ection 1385 or 1170[, subdivision ](b). The [c]ourt will strike the one-year prison prior enhancement pursuant to … [s]ection 1172.75, resulting in a sentence reduction of one year. An abstract [of judgment] reflecting a revised sentence of 15 years to life plus [seven] years determinate promptly will be forwarded to the [Department] of Corrections[ and Rehabilitation].” Defendant appeals. DISCUSSION Defendant contends the jury instructions given at his trial permitted the jury to convict him as an aider and abettor to his cousin’s second degree murder of Solario. Defendant explains: “[T]he jury had all the tools necessary to conclude that [the cousin] and [defendant] were co-participants in an assault [of Solario], with [defendant] aiding and abetting his [cousin], and that [the cousin’s] conversion of that assault into murder resulted in a vicarious imposition of murder liability upon [defendant].” The People contend, “Although the record supports [defendant]’s claim that the jury was instructed regarding aiding and abetting, there is no reasonable likelihood that the jury would have understood the instructions as permitting imputation of malice.” This argument is based on “the full set of instructions, trial evidence, and arguments in [defendant’s] case.” We conclude defendant has the more persuasive argument.

5 I Legal Standards Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted “to amend 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 “amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that ‘[m]alice shall not be imputed to a person based solely on his or her [or their] participation in a crime.’ (§ 188, subd. (a)(3), added by Stats. 2018, ch. 1015, § 2.)” (People v. Harden (2022) 81 Cal.App.5th 45, 51.) This language eliminated the use of the natural and probable consequences doctrine in second degree murder prosecutions. (People v. Gentile (2020) 10 Cal.5th 830, 846.) “Senate Bill No. 775 [(2021-2022 Reg. Sess.)] expanded the scope of those changes to encompass, among other things, murder convictions ‘under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime.’ (§ [1172.6], subd. (a), as amended by Stats. 2021, ch. 551, § 2.)” (People v. Langi (2022) 73 Cal.App.5th 972, 978, italics omitted; see Stats. 2022, ch. 58, § 10.) Section 1172.6 creates a petition process for an eligible defendant to seek to be resentenced. (§ 1172.6, subd. (a).) Section 1172.6, subdivisions (b) and (c) create the process for evaluating the petition. (People v. Lewis (2021) 11 Cal.5th 952, 960-962 (Lewis).) First, the trial court must determine whether the petition is facially sufficient under section 1172.6, subdivision (b). (Lewis, at p. 960.) If the petition is facially sufficient, the court must appoint counsel (if requested) and follow the briefing schedule 6 set forth in the statute. (Id. at p. 966.) Following the completion of this briefing, the trial court must hold a hearing to determine whether the petition has made a prima facie showing that the petitioner is entitled to relief. (§ 1172.6, subd. (c).) As our Supreme Court explained: “While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her [or their] factual allegations were proved. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ [Citation.] ‘However, if 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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) Stated another way, a petition for resentencing may be denied at the prima facie stage where the record of conviction, including items such as the jury instructions and associated findings, establishes a defendant’s ineligibility for relief as a matter of law. (Curiel, supra, 15 Cal.5th at pp. 459-461.) II Defendant Made A Prima Facie Showing Defendant’s jury was given the murder instruction under CALCRIM No. 520 and aider and abettor instructions under CALCRIM Nos. 400 and 401; the jury ultimately found defendant guilty of second degree murder. Under these instructions, “the perpetrator’s purpose need not have been to kill the victim, the aider and abettor’s knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had ‘murderous intent,’ certainly the aider 7 and abettor need not have had such an intent. Although the definition of second degree murder in [CALCRIM No. 520] states that the perpetrator must have acted with conscious disregard for human life, the definition of an aider and abettor in [CALCRIM No. 401] does not include the same requirement. Thus, under the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, [defendant] need only have intended to encourage the perpetrator’s intentional act—in this case, [assaulting] [Solario]—whether or not [defendant] intended to aid or encourage [Solario’s] killing, and whether or not he personally knew of and disregarded the risk of such a killing.” (People v. Langi, supra, 73 Cal.App.5th at pp. 981-983 [analyzing the comparable instructions CALJIC Nos. 8.31 and 3.01].) This possible application of defendant’s instructions establishes a prima facie case for a section 1172.6 petition. (Langi, at p. 984.) The People assert this is not true here because, based on the record of conviction, “there is no reasonable likelihood that the jury would have understood the instructions as permitting imputation of malice.” With this argument, the People propose an additional analytical step for the prima facie stage. As our Supreme Court has said, prior jury findings may determine as a matter of law section 1172.6 ineligibility at the prima facie stage under the doctrine of issue preclusion. (See Curiel, supra, 15 Cal.5th at p. 451 [examining whether a jury’s findings satisfied the elements of issue preclusion to bar a § 1172.6 resentencing as a matter of law].) The “reasonable likelihood” test, borrowed from the test for analyzing jury instructional error on direct appeal (see Boyde v. California (1990) 494 U.S. 370, 380), has been discussed in a few appellate cases examining instructions at section 1172.6’s prima facie stage to determine whether the jury findings have preclusive effect (see People v. Ervin (2021) 72 Cal.App.5th 90, 107- 109 [reversing denial of § 1172.6 petition because the jury could have misinterpreted instructions]; People v. Maldonado (2023) 87 Cal.App.5th 1257, 1268 & fn. 8 [applying the reasonable likelihood test without deciding whether it is appropriate to reverse a 8 denial of § 1172.6 petition]). In People v. Lopez (2026) 19 Cal.5th 639, 670, however, our Supreme Court declined to decide whether it is appropriate to add “another layer of analysis to establish eligibility at the prima facie stage for claims based on instructional ambiguity.” We need not decide the providence of applying the reasonable likelihood test at the prima facie stage of a section 1172.6 petition because its application here would exceed the bounds of a prima facie analysis. In applying the issue preclusion doctrine at the prima facie stage, our Supreme Court noted, “ ‘[C]ourts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts.’ ” (Curiel, supra, 15 Cal.5th at p. 452.) However, “[i]n reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ [Citation.] … [T]he ‘prima facie bar was intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) We conclude that determining whether there is no reasonable likelihood the jury found defendant guilty as an aider and abettor, and not as the actual killer, crosses into weighing evidence. The People’s argument establishes this point. They contend: “[Defendant’s] position that he could have been convicted as an aider and abettor based on aiding the commission of some life-endangering act without malice is completely inconsistent with the trial evidence as construed by all the parties at trial.” The People begin their analysis with a detailed review of trial evidence, arguing it “established that [defendant] alone attacked and killed Solario, which was wholly inconsistent with an aiding and abetting theory of murder.” This includes summarizing witness testimony, describing “Solario’s injuries,” and how defendant’s “statement to the police was inconsistent with an aiding and abetting theory of murder.” The People’s evidentiary argument does not establish defendant’s ineligibility as a matter of law. (Curiel, supra, 15 Cal.5th at p. 452 [“ ‘[t]he party asserting collateral 9 estoppel bears the burden of establishing these requirements’ ”].) Even if the evidence strongly supported the conclusion defendant was the actual killer, this does not unequivocally establish the jury found so. (See People v. Garcia (2022) 82 Cal.App.5th 956, 969 [finding “the record of conviction unequivocally establishes that [the] defendant was the ‘actual killer’ ” because “[h]e was the sole perpetrator of a robbery where a death occurred”].) The People effectively rearticulate defense counsel’s argument made to the original trial court that there was “no basis, in fact,” for the aider and abettor instruction. But the original trial court rejected this argument and found the jury could find defendant was an aider and abettor to the cousin’s murder by “look[ing] at the facts and mak[ing] [its] own determination based on the facts and apply the law that exists in the case based on the evidence.” Defendant also contends an alternative theory “was factually supported, since there was credible evidence contradicting [the cousin’s] narrative and supporting the conclusion that [defendant] left [Solario’s] room first.” We will not wade into the facts at this stage to discern whether defendant or the People have a better position on the evidence—this is best left to the trial court at the conclusion of an evidentiary hearing. The People also argue the parties’ closing arguments establish the only theory asserted was defendant as the actual killer. The resentencing trial court here agreed with this analysis. In denying the section 1172.6 petition, the trial court found: “The entire record of conviction firmly establishes the only theory that was alleged from day one of this case: [Defendant] was the actual killer.” But the ultimate question at the prima facie stage is not what theory or theories were asserted, but what the jury necessarily concluded. (Curiel, supra, 15 Cal.5th at p. 467 [“at the prima facie stage of section 1172.6 proceedings, we must be confident the jury necessarily found the actus reus required for direct aiding and abetting murder”].) And the trial court at the original trial was correct that the theory presented does not foreclose the jury choosing an alternative theory. (People v. Clark (2011) 52 Cal.4th 856, 947 [“theories suggested by 10 the prosecutor are not the sole theories the jury may consider in making its determination of guilt”]; People v. Perez (1992) 2 Cal.4th 1117, 1126 [“It is elementary … that the prosecutor’s argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury”]; People v. Raley (1992) 2 Cal.4th 870, 902 [a “jury [is] not bound to accept the prosecutor’s argument”].) “The record of conviction therefore does not establish defendant is ineligible for relief under section [1172.6] as a matter of law. In order to conclude defendant is ineligible for relief as a matter of law, we would have to weigh the evidence and find defendant to have been the actual killer, which would be impermissible at this stage.” (People v. Lopez (2022) 78 Cal.App.5th 1, 20.) The trial court consequently erred by denying defendant’s section 1172.6 petition at the prima facie stage.3 (People v. Maldonado, supra, 87 Cal.App.5th at p. 1269.)

3 Because we reverse and remand, we decline to consider defendant’s additional arguments that the trial court failed to hold a full resentencing hearing, the trial court lacked jurisdiction to reimpose the upper term on his assault conviction, a fine must be vacated, his counsel was ineffective, and his abstract of judgment must be corrected. The trial court on remand can address these issues considering the section 1172.6 evidentiary hearing’s outcome.

11 DISPOSITION The trial court’s postjudgment order denying defendant’s section 1172.6 petition is reversed. The matter is remanded with directions to the trial court to issue an order to show cause and conduct further proceedings in accordance with section 1172.6, subdivision (d).

/s/ ROBIE, J.

We concur:

/s/ HULL, Acting P. J.

/s/ MAURO, J.