Filed 4/27/22 P. v. Meraz CA4/1

Opinion following rehearing

OPINION ON REHEARING

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RAFAEL MERAZ,

Defendant and Appellant.

 D078422

 (Super. Ct. No. SCD233469)

APPEAL from an order of the Superior Court of San Diego County, 

Joan P. Weber, Judge. Reversed; remanded with directions.

Nancy J. King, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland, 

Assistant Attorneys General, and Steve Oetting and Anthony Da Silva, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

In 2012, a jury convicted Rafael Meraz of first degree murder (Pen. 

Code,1 § 187, subd. (a)). The jury found that Meraz was a principal and a 

principal in the murder, personally used a firearm, and proximately caused 

great bodily injury, within the meaning of section 12022.53,

subdivisions (d) and (e)(1). Meraz was sentenced to an indeterminate term of 

50 years-to-life in prison. 

Meraz appealed, and this court affirmed his conviction in an 

unpublished opinion, People v. Aguon et al. (Nov. 29, 2016) D064367.

In 2020, Meraz filed a petition for resentencing under section 1170.95. 

The trial court appointed counsel, received briefing, and reviewed the record 

of conviction, including the court file and the prior opinion of this court. The 

court held a hearing and denied the petition by written order. The court 

found Meraz had not made a prima facie case for relief and determined he 

was not eligible for resentencing under section 1170.95. The court denied the 

petition without issuing an order to show cause (OSC).

Meraz appealed, contending the court erred in denying his petition 

without first issuing an OSC and holding an evidentiary hearing. We 

affirmed the order in an unpublished opinion.

Meraz filed a petition for rehearing noting, among other things, that on 

October 5, 2021, the Governor signed Senate Bill No. 775 (Senate Bill 775) 

into law. (Stats. 2021, ch. 551.) Effective January 1, 2022, Senate Bill 775 

amended section 1170.95 to further clarify the resentencing petition process. 

We therefore granted Meraz’s petition for rehearing and requested the 

parties submit simultaneous supplemental briefs addressing the impact of 

Senate Bill 775 on the instant matter.

1 All further statutory references are to the Penal Code.
3

After considering the parties’ respective supplemental briefs and 

reconsidering the matter, we reverse the superior court’s order summarily 

denying Meraz’s petition and remand the matter with instructions for the 

court to issue an OSC and hold the appropriate evidentiary hearing. We offer 

no opinion as to the proper result of that hearing. 

STATEMENT OF FACTS

The facts of the offense are set forth in our prior opinion. We will 

incorporate them here for convenience.2 (People v. Aguon et al., supra, 

D064367.) 

Prosecution

On October 21, 2007, V.B. and J.P. were hanging out in front of Freese 

Elementary School in Lomita Village, talking to some girls. Meraz rode up 

on a bicycle, throwing gang hand signs as he approached. He asked the 

group if it was from “Pussy Hills,” a derogatory term for Lomita Village gang 

rivals Paradise Hills. He said he was “Grims” from “Lomita.” He talked to 

them as if they were gang members, but when they told him they did not 

“bang,” and were not disrespecting him, he said, “Cool,” and left. He 

appeared to be either drunk or high.

R.C. joined the group, and V.B. told him what had just happened. At

that time, Meraz rode his bike back to the group and said something about 

blasting them. He repeated his comments about “Pussy Hills.” He gave R.C. 

an overly firm handshake or overly aggressive fist bump. He asked if they 

wanted to get “blasted.” He pulled away his jacket to reveal a gun in his 

waistband. Then he rode away.

2 We do so in nearly verbatim fashion except to sometimes use first 

names and/or initials in naming third parties involved in the subject offenses 

to protect privacy as much as possible.
4

V.B. and R.C. decided to go hang out instead at the Balderas house, 

which was just down the street. About an hour and a half later, they, along 

with other Balderas family members including Vidal, were hanging out in 

front of the house listening to an oldies music show on the radio. Meraz rode 

up on his bicycle flashing gang hand signs in time to the music. Vidal 

confronted him, asking him why he was disrespecting the household. Meraz 

explained that this was Lomita Village, and he was Grims. Vidal said they 

did not bang at that house. Meraz kept saying this was “their” neighborhood. 

Vidal told him to leave. Meraz lifted up his shirt, revealing his gun, and

started to advance on Vidal.

R.C. sprang forward and punched Meraz in the face, knocking him to 

the concrete. Meraz pulled his gun out as R.C. held him down. R.C. kept 

hitting him. Vidal eventually pried the gun from Meraz’s hands. He told 

Meraz, “You’re going to stay right here, homie and wait for the police.” He 

lectured Meraz about disrespecting his family. He told Meraz that if the 

older homies in Lomita Village had taught him to disrespect nongang houses, 

then they had taught him wrong. He said he was going to talk to the older 

homies and that they would set Meraz straight.

Vidal’s sister, W.B., called 911. In the call, Vidal and Meraz can be 

heard in the background. Vidal chastised Meraz for coming around and 

“disrespecting” with a gun, and saying, “I don’t care homes, we don’t care 

about the neighborhood, homes. I don’t care about your neighborhood.”

Meraz responded, “I’m gonna fuck it up homie.”

Meraz got cut when he hit the concrete. The police took him to the 

hospital, where he denied drug or alcohol use but tested at a 0.13 percent 
5

blood alcohol level. He had scalp lacerations that required staples to close, 

and a fractured thumb. The police recovered the gun, which was loaded with 

11 rounds.

Ten days later, Vidal was killed in front of the Balderas house after 

returning from trick-or-treating with his four-year-old daughter. There were 

three assailants. Vidal struggled with one at the entrance to the yard and 

was shot. The men started running away, and Vidal took a few steps after 

them, but then fell face down on the ground. Vidal suffered six gunshot 

wounds, two through the heart. Just before the shooting, one of the 

assailants said, “What’s up now.” 

The shooter was wearing a black hoody, with a bandana covering his 

face. One of the others had a mask similar to what the villain wore in the 

movie Scream. One had a skull mask. There were no shell casings at the 

scene, which suggested that the weapon fired was a revolver. All the bullets 

recovered at the scene were fired from the same gun.

Some children trick-or-treating in the neighborhood heard gunshots 

and a woman scream and saw the men run away. The men were masked, one 

with a Scream mask, another with a skull mask, and one with a bandana. 

One of the men was holding a rifle. As the men went by them, they asked 

what had happened. The man holding the rifle turned and stared at them, 

but one of his companions said, in Spanish, “Hey, dude. Calm down. Don’t 

do anything. We finished.”

Shortly after the shooting, a gang suppression detective arrested M.M.

for a curfew violation near Meraz’s house. M.M. had bullets and a loaded 

speed loader for a revolver in a nylon bag in his pocket. He said he was 

coming from a friend’s house and had found the items on the ground. His cell 
6

phone reflected a call at 10:15 p.m. that night to “Grims” at Meraz’s home 

number. The cartridges in the speed loader in M.M.’s pocket were .38 

specials, consistent with the spent bullets recovered from the scene.

Police searched Meraz’s house a few hours after the shooting and found 

a skull mask under some jeans. The mask had Meraz’s DNA on it. They 

found a black bandana halfway under a bed. They found a pair of pants in a 

bedroom with a paper bearing the name “Mikey” as well as Meraz’s telephone 

number in the pocket. 

Subsequent testing detected several gunshot residue particles (one 

“characteristic” and several “consistent”) in the fabric of the pants. A black 

hooded windbreaker had several “consistent” gunshot residue particles.

Meraz claimed he had not left the house that day since coming home 

from school. He maintained this story even when confronted with the fact his 

brother and mother had told police he had been out of the house that evening. 

His brother told police that Meraz came home about 8:00 p.m. or 8:30 p.m. 

that night, changed out of his clothes right away, and took a shower.

Meraz admitted, however, that M.M. had been at his house that night.

E.H. was K.B.’s ex-wife. Both she and K.B. were Lomita Village gang 

members. Three days after the shooting, K.B. asked E.H. to drive him to 

Aguon’s house. She did, and once there, encountered Aguon and his cousin 

B.T., also a Lomitas Village gang member. Aguon and B.T. lived in the same 

house.

K.B. asked, “What happened?” and B.T. slapped Aguon on the back of 

the head, saying, “This fool did the wrong job—This fool didn’t even do the job 

right. He got the wrong brother.” E.H. asked if B.T. meant Vidal, and he 

said “Yes.” Aguon then told how about a week earlier, another homeboy had 

gone to confront Balderas about being from Paradise Hills, but Victor’s older 
7

brother, Vidal, had beaten him and taken his gun. Aguon then said that he 

and two other guys had gone to the Balderas house on Halloween. They had 

a Scream mask. They got into a fight with Vidal when he blocked them from 

getting into the house. There had been two gunshots, and Vidal had kept 

fighting. After two more gunshots, Vidal dropped. Aguon and the others took 

off running. 

While telling this story to E.H. and K.B., Aguon was, in E.H.’s words, 

“cocky” and “giggling.” She found his attitude offensive because she was 

friends with Vidal’s brother.

E.H. had been a paid police informant for some time and had used her 

payments to support her drug habit. She had stopped using drugs and 

committing crimes in 2007, a few months before the shooting, and had gotten 

a job with an organization called “Second Chance.” She was not paid for the 

information she gave about Vidal’s murder, and the police promised her she 

would never have to testify. Nevertheless, several years after providing the 

information, with her life finally straightened out, she was told she was going

to have to testify at trial. She had to leave her job at Second Chance and be 

relocated in the witness protection program.

E.H. had thought Aguon’s surname was Tejeda, since he lived with B.T. 

Police checked their records for a “Mikey Tejeda,” but came up with nothing.

The police appear to have let the matter drop until reopening the case in 

2010 when Aguon was arrested.

While in jail in 2011, Aguon learned it was E.H. who had told the police 

about his involvement in Vidal’s murder, and he called home to instruct his 

cousin B.T. to deny to investigators that any such conversation had ever 

happened. B.T. was not home, so he told B.T.’s brother, “I was just gonna tell 

your brother . . . I talked to my attorney . . . today, and, and he’s giving—gave 
8

me the lay-down, . . . what’s going on . . . . I was gonna have that fool go and 

talk to you guys or something, and then see (unin)— you know what I mean?”

“But I don’t think he’s gonna go. I think he’s probably send somebody else. 

Like an investigator . . . .” He continued, “my attorney says some of the stuff 

that, uh, that whoever’s saying that shit . . . . That some of that 

stuff . . . supposedly it happened in front of the house, and [Vidal] was there. 

You know what I mean? And, and that should never even happened . . . 

That’s wh—that’s why I was like—I was gonna tell [Vidal], like, ‘Man, that’s 

some bullshit,’ you know?” “Yeah, . . . they’re saying that—saying that was 

said in front of the house and he—[Vidal] was there . . . .” “If anything, uh, 

like, uh, if anything I could just be like, ‘Man, you could even ask my cousin, 

you know?’ ” He continued, “Yeah, make sure that fool knows . . . That 

fucking shit’s some bullshit. . . . Never even happened. . . . You know what I 

mean? That mean I’m in here for nothin’ and shit. Alright.”

San Diego Police Department Detective Damon Sherman testified as 

the People’s expert on the Lomita Village gang. According to Sherman, 

Lomita Village has all the characteristics required by the Penal Code for a 

criminal street gang. In Sherman’s opinion, Meraz, known as Grims, was a 

Lomita Village gang member at the time of the shooting. Sherman also 

opined Aguon, known as “Villen,” was a Lomita Village gang member in 2007.

In hypotheticals mirroring the facts of the case, Sherman opined as 

follows: If a gang member had his gun taken and was beaten so badly he had 

to go to the hospital, and the gun was given to law enforcement, that was an 

act of disrespect which, in gang culture, required a retaliatory act using 

greater force and power to inflict a much greater injury. Sherman further 

opined the shooting, if committed by multiple Lomita Village gang members, 

was committed in association with Lomita Village and benefited that gang. 
9

It repositioned the gang and the disrespected gang member in the gang 

community and reinstilled fear in the civilian community. If the phrase, 

“what’s up now” was said at the time of the shooting, this demonstrated the 

disrespected person’s affirmation that he had won in the long run. In 

Sherman’s opinion, if there were statements after the shooting, such as 

“we’re finished now,” they showed the job was completed as planned.

Defense

Aguon’s defense at trial was denial. He presented alibi witnesses. He 

also attempted to impeach E.H., by offering evidence E.H. was familiar with 

the justice system. She had multiple felony convictions. Following a 

conviction in 2005, she began working as a confidential informant for both 

the Chula Vista and National City Police Departments. As a result of her 

efforts, she was given a probationary sentence. She violated the terms of

probation with a series of check forgeries and began working with a deputy 

district attorney. She agreed to do a training video in exchange for summary 

probation and continued to work as an informant. During this time, E.H.

was a drug addict and spent her informant compensation on drugs. She did 

not pay any of the considerable restitution owed in any of her cases. In 2007, 

E.H. got sober and started working at a nonprofit organization. She worked 

there until her relocation. Since her relocation, E.H. has maintained 

employment, but the income does not cover her monthly expenses. The 

district attorney’s office originally paid approximately $44,000 in relocation 

fees and, at the time of trial, paid her rent, food and utilities and gave her an 

additional monthly stipend of $975.

Meraz’s defense at trial was that the prosecution failed to prove its 

case. 
10

DISCUSSION

A. Legal Principles

Senate Bill No. 1437 (Stats. 2018, ch. 1015) (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.’ ” (People v. Gentile (2020) 10 

Cal.5th 830, 842.) 

The Legislature stated its intent in Senate Bill 1437 to exclude an 

“actual killer” from relief under section 1170.95 as follows: 

“It is necessary 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 also created section 1170.95 as a process for persons 

previously convicted of murder to seek resentencing in light of the changes 

enacted by Senate Bill 1437. Section 1170.95, subdivision (c) provides:

“Within 60 days after service of a petition that meets the requirements set 

forth in subdivision (b), the prosecutor shall file and serve a response. The 

petitioner may file and serve a reply within 30 days after the prosecutor’s 

response is served. These deadlines shall be extended for good cause. After 

the parties have had an opportunity to submit briefings, the court shall hold 

a hearing to determine whether the petitioner has made a prima facie case 

for relief. If the petitioner makes a prima facie showing that the petitioner is 
11

entitled to relief, the court shall issue an order to show cause. If the court 

declines to make an order to show cause, it shall provide a statement fully 

setting forth its reasons for doing so.”

In People v. Lewis (2021) 11 Cal.5th 952, 961-962 (Lewis), the 

California Supreme Court held trial courts can deny petitions under 

section 1170.95, after appointment of counsel and briefing, if readily 

accessible facts from the record of conviction establish the petitioner is not 

legally eligible for resentencing. The court explained that trial courts can 

and should consider the record of conviction at the prima facie stage of review 

of section 1170.95 petitions. (Lewis, at pp. 970-971.) However, courts are not 

permitted to engage in factfinding or making evidentiary findings at the 

prima facie review stage. (Id. at pp. 971-972.) 

Jury instructions and verdict forms in the court file from the trial 

proceedings may be considered to determine whether a petitioner has made 

prima facie showing of improper imputation of malice in the trial.

In addition, the court in Lewis recognized prior appellate opinions from 

the original conviction are legitimate sources of readily accessible facts 

regarding the theory upon which the petitioner was originally convicted. 

(Lewis, supra, 11 Cal.5th at p. 972.)

On October 5, 2021, the Governor signed Senate Bill 775 (2021-2022 

Reg. Sess.). Effective January 1, 2022, relevant here, Senate Bill 775 

expanded the scope of section 1170.95 from petitioners “convicted of felony 

murder or murder under the natural and probable consequences doctrine” to 

petitioners convicted under any “other theory under which malice is imputed 

to a person based solely on that person’s participation in a crime.” (§ 1170.95, 

subd. (a) as amended by Stats. 2021, ch. 551, § 2.) Regarding the evidentiary 

hearing, Senate Bill 775 also clarified that the rules of evidence govern the 
12

admission of evidence, and the court can consider the procedural history of 

the case recited by any prior appellate opinion. (§ 1170.95, subd. (d)(3).) 

Moreover, “[a] finding that there is substantial evidence to support a 

conviction for murder, attempted murder, or manslaughter is insufficient to 

prove, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (Ibid.) 

B. Analysis

In their supplemental brief, the People argue Senate Bill 775 “has no 

effect on the instant appeal because the record of conviction conclusively 

establishes that [Meraz] was convicted of first degree premeditated murder 

as either a direct perpetrator or a direct aider and abettor.” In addition, the 

People emphasize that in summarily denying Meraz’s petition, the superior 

court did not engage in any factfinding or weigh any evidence. To this end, 

they note the superior court “reasoned that ‘the charging document, jury 

verdict, and 4th DCA opinion all indicate [Meraz] was convicted exclusively 

on a theory of premeditation and deliberation.’ ” Therefore, the People set 

forth that the record of conviction relied on by the superior court to deny 

Meraz’s petition primarily consists of the charging document, jury verdict, 

and our prior opinion in the underlying appeal.

As a threshold matter, we find no support for the People’s contention 

that the record of conviction establishes that Meraz was convicted as the 

direct perpetrator. The charging document does not and cannot establish 

that fact. The jury did return a verdict against Meraz for murder in the first 

degree, but the verdict simply says that the jury found Meraz guilty of the 

crime first degree murder in violation of section 187, subdivision (a). There is 

nothing in the verdict that states Meraz was the actual killer. Indeed, the 

jury made a true finding that Meraz was a principal and a principal in the 
13

murder personally used a firearm and proximately caused great bodily 

injury, within the meaning of section 12022.52, subdivisions (d) and (e)(1). It 

did not find that Meraz fired a gun, killing the victim. Finally, our prior 

opinion does not establish that Meraz is the actual killer. In fact, none of the 

legal issues raised in that appeal specifically addressed Meraz’s role in the 

killing.3 

Additionally, we fail to see how the record of conviction considered by 

the superior court supported the court’s order summarily denying Meraz’s 

petition. Similar to failing to establish that Meraz was not the actual killer, 

the charging document and jury verdict do not establish that Meraz is 

ineligible for resentencing under section 1170.95. Neither establish on what 

theory and what evidence the prosecution proved its case against Meraz. 

Moreover, the charging document and the jury verdict do not tell us what the 

jury relied on in finding Meraz guilty of first degree murder. In other words, 

neither document establishes that Meraz would still be convicted for murder 

after the changes to the felony murder rule and the natural and probable 

consequences doctrine following Senate Bills 1437 and 775. 

Further, we are troubled by the superior court’s reference to our prior 

opinion as establishing that Meraz is ineligible for resentencing under 

section 1170.95. Although our high court indicated that an appellate opinion 

is “generally considered to be part of the record of conviction,” it also 

cautioned that “the probative value of an appellate opinion is case specific, 

and ‘it is certainly correct that an appellate opinion might not supply all 

answers.’ ” (Lewis, supra, 11 Cal.5th at p. 972, quoting People v. Woodell

3 We granted Meraz’s request for judicial notice of the record on appeal 

in People v. Aguon et al., supra, D064367. Meraz points out that at Meraz’s 

trial, the prosecutor asked the jury to find that Aguon was the actual killer. 
14

(1998) 17 Cal.4th 448, 457.) And our prior opinion is limited in its 

application to the issues raised by Meraz’s petition under section 1170.95.

For example, Meraz challenged the verdict form returned by the jury, 

under section 1157, because the information charging him with murder was 

silent as to the degree, and the jury was not asked to return, and did not 

return, any specific finding on the truth of the allegation of premeditation 

and deliberation. (See People v. Aguon, supra, D064367.) In concluding 

Meraz’s argument lacked merit, we noted that “[t]he prosecution proceeded 

on a theory the homicide constituted murder in the first degree based on

premeditation and deliberation. The jury was so instructed. The trial court 

also instructed the jury on second degree murder.” (Ibid.) However, we did 

not discuss the actual jury instructions or review the evidence relied upon by 

the jury to convict Meraz. We merely determined that the verdicts used at 

Meraz’s trial did not violate section 1157.

The other issues raised in the underling appeal dealt with alleged 

prosecutorial misconduct, the admission of gang evidence, and whether 

Meraz’s sentence violated the Eighth Amendment. (See People v. Aguon, 

supra, D064367.) None of those issues directly impact Meraz’s petition for 

relief under section 1170.95. And while our opinion includes a recitation of 

pertinent facts, we provided those facts as context to discuss the issues raised 

in the appeal. Our factual discussion did not establish any fact as a matter of 

law and certainly did not definitively prohibit Meraz’s claim that he is 

eligible for resentencing under section 1170.95.

Moreover, Senate Bill 775 further emphasizes the limited role an 

appellate opinion may play during an evidentiary hearing where the rules of 

evidence apply: “The court may also consider the procedural history of the 

case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).) If the 
15

appellate opinion plays such a limited role at an evidentiary hearing, it 

logically follows that a court cannot rely on it as a factual basis at the prima 

facie stage of a resentencing petition, especially when the opinion did not 

consider the relevant issue or make a finding as a matter of law that renders 

a petitioner ineligible for resentencing. As such, we see nothing in our prior 

opinion on which the superior court could base its decision that Meraz is 

ineligible for relief under section 1170.95 at the prima facie stage. 

Further, because we granted Meraz’s request for judicial notice of the 

appellate record in People v. Aguon, supra, D064367, both parties cite to 

portions of that record to support their respective positions. Nevertheless, 

that record was not in front of the superior court when it summarily denied

Meraz’s petition. As such, we will eschew a thorough discussion of that 

record and simply observe that there appear to be arguments that each side 

can make regarding what evidence was offered at trial and how that evidence 

impacts Meraz’s petition. These arguments further buttress our conclusion 

that the superior court’s order summarily denying Meraz’s petition must be 

reversed. 

Here, on the record before us, we have some concern that Meraz’s 

murder conviction is based on a theory under which malice was imputed to 

him solely based on his participation in a crime. It might be that the 

evidence will show that Meraz personally acted with requisite mental state 

rendering him ineligible for relief under section 1170.95. (Cf. People v. Langi

(2022) 73 Cal.App.5th 972, 984.) That said, neither this court nor the 

superior court can make such a determination absent an evidentiary hearing 

under section 1170.95. We therefore reverse the order summarily denying 

Meraz’s petition and remand the matter with instructions that the superior 

court issue an OSC and hold an evidentiary hearing.
16

DISPOSITION

The order denying Meraz’s petition for resentencing under 

section 1170.95 is reversed. The matter is remanded to the superior court 

with instructions to issue an OSC and hold an evidentiary hearing. We offer 

no opinion regarding the appropriate result of that hearing. 

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DATO, J.