Filed 8/31/26 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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. 2009-0006563, 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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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