Filed 8/20/20 P. v. Mejia CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


 THE PEOPLE,                                                B302951

           Plaintiff and Respondent,                        (Los Angeles County
                                                            Super. Ct. No. BA329116-04)
           v.

 JUVENAL CARDENAS MEJIA,

           Defendant and Appellant.




         APPEAL from an order of the Superior Court of
Los Angeles County, Lisa B. Lench, Judge. Affirmed.
         Marta Stanton, 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, Charles S.
Lee and Theresa A. Patterson, Deputy Attorneys General, for
Plaintiff and Respondent.
                    ________________________

      Juvenal Cardenas Mejia, convicted of the first degree
murder of a 23-day-old infant in September 2007, as well as
attempted premeditated murder and several related crimes,
appeals the denial of his petition for resentencing pursuant to
Penal Code section 1170.95.1 Because the record of conviction
indisputably shows that Mejia is ineligible for resentencing, we
affirm.
      FACTUAL AND PROCEDURAL BACKGROUND
      1. Mejia’s Conviction for the Murder of Infant Luis Garcia
       As summarized in our opinion affirming the judgment of
conviction in Mejia’s case (People v. Mejia (May 26, 2015,
B251845) [nonpub. opn.]), Mejia was hired as a “paisa”2 by the
Columbia Lil Cycos (CLC) clique of the 18th Street criminal
street gang to collect payments from unlicensed street vendors in
the area near MacArthur Park. Francisco Clemente sold
electronic items in the neighborhood and was approached on
multiple occasions by gang members or associates who demanded
money for the right to sell on the street.
       Several months before the September 2007 shooting,
six men who identified themselves as 18th Street gang members
told Clemente he had to pay to sell his merchandise or they
would beat him up. When Clemente pulled out a knife, the men
fled. In mid-August 2007 Clemente moved a few blocks away to


1     Statutory references are to this code.
2     “Paisa” is a slang term, shortened from the Spanish word
“paisano.” In this context it referred to someone who performs
work for a gang but is not a member of the gang.



                                 2
avoid the threats and demands, but Mejia and another gang
associate insisted that Clemente pay them at his new location.
On several occasions Clemente paid to avoid a beating; but, when
he informed Mejia he did not have enough money, Mejia told him
to move or the people who had previously threatened him would
come and “send him to hell.”
       A week or two before the shooting, a man Clemente
identified as Sergio Pantoja, the leader of the CLC clique,
similarly threatened he would “send [Clemente] to hell” if he did
not leave the street. Clemente refused to leave. Later, Mejia told
Edgar Hernandez, the CLC clique member who had hired him to
collect taxes from vendors, that a vendor would be shot for
disrespecting Pantoja. Shortly before the shooting, Mejia was
overheard telling another paisa, “We’re going to fix it later,” when
the paisa complained that Clemente was giving him trouble
about payments.
       On the evening of September 15, 2007 Mejia and several
gang members gathered near Clemente’s location to be instructed
on the plans for the shooting. A young gang member named
Rusty Macedo was assigned to be the shooter and was given a
gun. Others were directed to watch for the police, and Mejia was
told to point out Clemente for Macedo. As Macedo would later
explain, “[E]verybody knew what was going to be done before I
shot the vendor. They knew the vendor was going to get shot,
you know.” The men took their positions as instructed. Mejia
twice walked with Macedo past Clemente’s position and pointed
him out. They then walked into a nearby video store. While
Mejia stayed in the store, Macedo walked out of the store toward
Clemente, who was standing with his girlfriend and a friend of
hers, as well as the friend’s baby. From a distance of seven or




                                 3
eight feet Macedo fired several times, aiming at Clemente as he
fell to the ground. Clemente, who was shot four or five times,
survived the attack. The baby, Luis Garcia, was shot in the chest
and died.
        Mejia was arrested in Mexico and returned to the United
States in February 2012. Following a jury trial, he was convicted
of the first degree premeditated murder of Garcia; the attempted
willful, deliberate and premeditated murder of Clemente;
two counts of assault with a semiautomatic weapon; attempted
extortion; conspiracy to commit extortion; and conspiracy to
commit murder. The jury found true not only the special
circumstance allegation Mejia had intentionally killed Garcia
while an active participant in a criminal street gang and the
murder was carried out to further the activities of the gang
(§ 190.2, subds. (a)(22), (c)) but also, as to the murder and
attempted murder counts, that a principal had intentionally
discharged a firearm causing great bodily injury or death and, as
to all counts, that the crimes had been committed to benefit a
criminal street gang.
        Mejia was sentenced to life without the possibility of parole
plus 25 years to life for the firearm-use enhancement for the
murder of infant Garcia; plus a consecutive indeterminate
life term plus 25 years to life for the attempted premeditated
murder of Clemente and the related firearm-use enhancement;
plus a consecutive indeterminate life term for conspiracy to
commit extortion; and consecutive aggregate determinate terms
of 17 years eight months for the two aggravated assault
convictions with gang enhancements.
        We affirmed the judgment on appeal, rejecting Mejia’s
arguments the trial court had erred in refusing to instruct on




                                  4
duress as an affirmative defense and had committed other
instructional errors. (People v. Mejia, supra, B251845.)
      2. Consideration of the Natural and Probable Consequences
         Doctrine on Appeal
       While Mejia’s appeal was pending, the Supreme Court
decided People v. Chiu (2014) 59 Cal.4th 155, holding a defendant
may not be convicted of aiding and abetting first degree
premeditated murder under the natural and probable
consequences doctrine. In supplemental briefing Mejia argued
his first degree murder conviction and attempted premeditated
murder conviction must be reversed because the trial court had
instructed, and the prosecutor had argued, Mejia could be found
guilty of both crimes under this theory.
       We rejected Mejia’s argument, explaining, “Although the
jury here was instructed under the natural and probable
consequences doctrine, the verdicts are entirely incompatible
with a conclusion the jury relied on that doctrine to convict Mejia
of premeditated first degree murder and attempted deliberate
and premeditated murder. The jury also found true the gang-
murder special circumstance under section 190.2,
subdivision (a)(22), which authorizes a penalty of death or life
imprisonment without the possibility of parole if ‘[t]he defendant
intentionally killed the victim while . . . an active participant in a
criminal street gang, . . . and the murder was carried out to
further the activities of the criminal street gang.’ CALJIC
No. 8.80.1 expressly told the jury, ‘If you find that a defendant
was not the actual killer of a human being, you cannot find the
special circumstance to be true unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill
aided, abetted, counseled, commanded, or assisted any actor in




                                  5
the commission of the murder in the first degree.’ The jury’s
finding Mejia aided and abetted the shooter with the intent to kill
(rather than merely assault) Clemente is dispositive of his claim
the jury could have convicted him of first degree murder and
attempted premeditated murder only because it believed those
crimes were the natural and probable consequence of an assault.”
(People v. Mejia, supra, B251845.)
      3. Senate Bill No. 1437 and Mejia’s Petition for
          Resentencing
          a. Senate Bill No. 1437 and the section 1170.95 petition
             procedure
       Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder through
amendments to sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.”
       New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that an
individual is liable for murder “only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person
was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first


                                 6
degree. [¶] (3) The person 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.”
       Senate Bill 1437 also permits, through new section 1170.95,
an individual convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. The petition must include a declaration by the
petitioner that he or she is eligible for relief under this section,
the superior court case number and year of the petitioner’s
conviction and a statement whether the petitioner requests the
appointment of counsel. (§ 1170.95, subd. (b)(1); see People v.
Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted
Mar. 18, 2020, S260493 (Verdugo).)3
       If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a two-step process for
the court to determine if an order to show cause should issue:
“‘The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has

3      The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
The Court limited briefing and argument in People v. Lewis to the
following issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?”



                                 7
requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response . . . and
the petitioner may file and serve a reply . . . . If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.’” (Verdugo, supra,
44 Cal.App.5th at p. 327.)
       Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The
prosecutor and petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.
(See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review
granted Mar. 18, 2020, S260598.)
         b. Mejia’s section 1170.95 petition
      On January 4, 2019 Mejia petitioned for resentencing
under newly enacted section 1170.95, asking the court to vacate
his murder conviction and to resentence him on the remaining
counts. He provided a declaration stating he had been charged
with, and convicted of, murder in a prosecution that proceeded
under a theory of felony murder or murder under the natural and
probable consequences doctrine and averring that his conviction
for murder was invalid due to the recently effective changes to
sections 188 and 189. He also requested appointment of counsel.




                                 8
      4. The Superior Court Proceedings on Mejia’s Petition
       Counsel was appointed to represent Mejia. On March 4,
2019 the People filed a memorandum in opposition to
resentencing that described the factual background of Mejia’s
murder conviction, including the jury’s special circumstance
finding, and argued section 1170.95 was unconstitutional. The
memorandum attached a copy of this court’s opinion affirming
the judgment in Mejia’s direct appeal.
       At the May 30, 2019 hearing on the petition, Mejia’s
counsel stated he had been in trial when appointed and had not
yet had an opportunity to review the People’s opposition
memorandum. He noted that he and the prosecutor had agreed
to a continued hearing date of July 17, 2019 and said he would
file his reply by July 5, 2019. At this point, however, Mejia’s
counsel said he had a question as to procedure: “The courts are
doing things differently. Under 1170.95 the court is required to
make a prima facie [finding]. Some judges do that at the outset.
Some judges wait to see my response. What is the court’s
pleasure in handling that?” The court responded it had done it
both ways and continued, “I don’t want to foreclose your
opportunity to contest what [the prosecutor] is saying. By the
same token, it appears to me, given what he’s saying, that
Mr. Mejia probably doesn’t qualify for relief under the statute.”
       The court (a different judge from the one who had tried the
case) acknowledged there had been a natural and probable
consequences instruction at trial and then observed, “While I
understand that the natural/probable consequences instruction
was given, according to what [the prosecutor] has stated . . . the
findings that the jury made required that they find intent to kill.”
Counsel replied, “If there’s any doubt in the court’s mind, I would




                                 9
ask the court to allow me to do my job. But if the court is telling
me it doesn’t have a real doubt at all as to whether he qualifies,
then the court is well within its rights, as a prima facie basis, to
deny Mr. Mejia his–his motion. I just need to get directions from
the court what you want me to do.” The court then denied the
petition “because it appears to me that a prima facie case can’t be
made in this instance of eligibility for relief under the statute.
Because the jury finding negates any ambiguity with respect to
the theories under which the defendant was tried.” The court did
not rule on the People’s argument section 1170.95 is
unconstitutional.
                          DISCUSSION
      1. The Superior Court Correctly Determined Mejia Is
         Ineligible for Resentencing as a Matter of Law
      Mejia does not dispute, nor could he, that the jury’s special
circumstance finding under section 190.2, subdivisions (a)(22)
and (c), required it to find beyond a reasonable doubt that he had
acted with the intent to kill–express malice–when he directly
aided and abetted Macedo’s shooting that, although targeting
Clemente, killed the infant.4 As discussed, that was the basis for


4       Section 190.2, subdivision (a)(22), applies to the actual
killer. As the court instructed at Mejia’s trial, however, the
special circumstance also applies to an aider and abettor who acts
with the intent to kill. Section 190.2, subdivision (c), provides,
“Every person, not the actual killer, who, with the intent to kill,
aids, abets, counsels, commands, induces, solicits, requests, or
assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison
for life without the possibility of parole if one or more of the
special circumstances enumerated in subdivision (a) has been
found to be true under Section 190.4.” And in People v. Shabazz


                                 10
our rejection of Mejia’s argument for reversal of his first degree
murder conviction under People v. Chiu, supra, 59 Cal.4th 155:
Although instructed with the natural and probable consequences
doctrine, the jury, because it found true the special circumstance
allegation, necessarily found Mejia guilty as a direct aider and
abettor who had acted with the intent to kill.
       Rather than argue the superior court erred in ruling the
jury verdict meant he was ineligible for resentencing as a matter
of law, Mejia contends it was error for the court to make that
determination before permitting his counsel to file a reply brief.
We rejected an identical argument in Verdugo, supra,
44 Cal.App.5th 320.
       As we explained, after receiving a facially sufficient
petition, the superior court may examine the readily available
portions of the record of conviction, including any appellate
opinion affirming the conviction, to determine whether the
petitioner has made a prima facie showing that he or she could
not be convicted of first or second degree murder following the
changes made to sections 188 and 189 and thus falls within the
provisions of section 1170.95. (Verdugo, supra, 44 Cal.App.5th at
pp. 329-330, 332.) We cautioned, however, because at this stage
the court is only evaluating whether there is a prima facie

(2006) 38 Cal.4th 55, which we discussed at length in our opinion
affirming Mejia’s first degree murder conviction, the Supreme
Court held “a finding of the special circumstance set forth in
section 190.2(a)(22) may be upheld when a defendant, while an
active participant in a criminal street gang and in furtherance of
that gang’s activities, has performed an act with an intent to kill
that resulted in the killing of any individual,” even though the
defendant who fired the gun missed the intended victim and
killed another person. (Id. at p. 59.)



                                11
showing the petitioner falls within the provisions of the statute, if
the petitioner’s ineligibility for resentencing under
section 1170.95 is not established as a matter of law by the record
of conviction, the court must appoint counsel if requested; direct
the prosecutor to file a response to the petition; permit the
petitioner to file a reply; and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.
(Verdugo, at p. 330.)
       Although counsel had been appointed for Mejia and the
prosecutor had filed a memorandum opposing resentencing, with
the consent of Mejia’s attorney, who was present at the hearing,
the court performed the preliminary screening for eligibility
authorized by Verdugo and correctly concluded Mejia was
ineligible for relief under section 1170.95 as a matter of law.5
There was no error. (Verdugo, supra, 44 Cal.App.5th at p. 330;




5      Mejia is correct that not every special circumstance finding
necessarily means the defendant is ineligible for resentencing as
a matter of law. In People v. Torres (2020) 46 Cal.App.5th 1168,
review granted June 24, 2020, S262011, for example, the court
held a felony-murder conviction with a special circumstance
finding the murder had been committed during a robbery and the
defendant was a major participant who acted with reckless
indifference to human life did not indisputably resolve the issue
because Supreme Court cases subsequent to the verdict had
significantly narrowed the proper scope of a “major participant”
finding. But Mejia fails to suggest any way in which the special
circumstance finding here, which specifically required a finding of
express malice, could possibly be interpreted to permit
resentencing under section 1170.95.



                                 12
accord, People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410.)
      2. Mejia’s Claim the Superior Court Violated His
         Constitutional Right to Counsel Lacks Merit
       Even if consistent with the procedure mandated by
section 1170.95, Mejia contends the denial of his petition for
resentencing without permitting his counsel to adequately
prepare and file a response violated his federal constitutional
right to counsel. As discussed, however, Mejia’s counsel agreed
the court could decide the threshold issue of eligibility under the
statute without further briefing. Accordingly, any constitutional
issue regarding the procedure adopted by the superior court has
been forfeited. (See People v. Farley (2009) 46 Cal.4th 1053, 1095
[constitutional arguments raised for first time on appeal are
forfeited unless they “do not invoke reasons different from those
the trial court was asked to apply, but merely assert that the
trial court’s act or omission, to the extent erroneous for the
reasons actually presented to that court, ‘had the additional legal
consequence of violating’ the Constitution”]; People v. Halvorsen
(2007) 42 Cal.4th 379, 414 [same].)
       In any event, Mejia’s constitutional argument lacks merit.
The relief afforded by section 1170.95 is “not subject to Sixth
Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate defendants’
Sixth Amendment rights.” (People v. Anthony (2019)
32 Cal.App.5th 1102, 1156; accord, People v. Lopez (2019)
38 Cal.App.5th 1087, 1114-1115, review granted Nov. 13, 2019,
S258175.)6 Absent adequate factual allegations stating a prima

6    In general, prisoners have no “constitutional right to
counsel when mounting collateral attacks upon their convictions.”


                                13
facie case of eligibility for relief, viewed in light of the record
before the court, there is no right to counsel in this postjudgment
proceeding. (See People v. Lewis, supra, 43 Cal.App.5th at
p. 1138 [initial eligibility determination under section 1170.95 is
analogous to a determination whether to summarily deny a
habeas corpus petition to which no constitutional right to counsel
attaches]; cf. McGinnis v. Superior Court (2017) 7 Cal.App.5th
1240, 1243-1244, fn. 2 [“[a]ny right to habeas corpus counsel,
absent an order to show cause, is purely statutory”]; see generally
People v. Shipman (1965) 62 Cal.2d 226, 232 [in the absence of
adequate factual allegations stating a prima facie case for
issuance of a writ of error coram nobis, counsel need not be
appointed either in the trial court or on appeal from a summary
denial of relief in that court].)
                         DISPOSITION
      The order denying Mejia’s petition for resentencing is
affirmed.

                                     PERLUSS, P. J.
      We concur:



            SEGAL, J.                FEUER, J.



(Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [107 S.Ct. 1990,
95 L.Ed.2d 539].) Under the federal Constitution the right to
appointed counsel extends only to trial and the first appeal.
When states enact statutes to provide other postconviction relief,
they have substantial discretion to develop and implement such
programs. (Finley, at pp. 557-559.)



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