Filed 12/8/20 P. v. Mora CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS MORA,

Defendant and Appellant.

B304503

Los Angeles County

Super. Ct. No. BA085503

APPEAL from an order of the Superior Court of Los

Angeles County, Frederick N. Wapner, Judge. Affirmed.

Kathy R. Moreno, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Rene Judkiewicz, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

In 1994, petitioner Jesus Mora was convicted of first degree 

murder in which he personally used a handgun. After the 

enactment of Senate Bill No. 1437 (S.B. 1437) (Stats. 2018, 

ch. 1015), Mora petitioned for resentencing under Penal Code 

section 1170.95, and the trial court appointed counsel to 

represent him.

1 The court ultimately denied the petition on the 

ground that Mora, as the actual killer convicted under a theory of 

malice aforethought, was not entitled to relief under the statute. 

On appeal, Mora contends that the court erred by basing its 

conclusion on the factual summary in the opinion from his 1995 

appeal. We conclude any error was harmless and affirm.

BACKGROUND

By information dated January 6, 1994, Mora was charged 

with one count of murder (§ 187, subd. (a); count 1) and one count 

of attempted murder (§ 664/187, subd. (a); count 2). The 

information alleged Mora personally used a firearm (§ 12022.5) in 

the commission of both offenses. 

A jury found Mora guilty of first degree murder and found 

the personal-use allegation true.2 The court sentenced Mora to 25 

years to life for count 1 plus five years for the firearm 

enhancement, to run consecutively. The conviction was affirmed 

on appeal. (People v. Mora (Aug. 8, 1995, B086038) [nonpub. 

opn.].)

1 All undesignated statutory references are to the Penal Code.

2 The record does not reveal what happened to count 2.
3

In April 2019, Mora filed a petition for resentencing under 

section 1170.95.

3 He asked the court to vacate his murder 

conviction and resentence him under section 1170.95. Mora 

alleged that the information filed against him allowed the 

prosecution to try him under a theory of felony murder or murder 

under the natural-and-probable-consequences doctrine, that he

was convicted under one of those theories, and that he could not 

now be convicted of murder under the recent changes to the 

Penal Code contained in S.B. 1437, of which section 1170.95 was 

a part. He also asked the court to appoint counsel to represent 

him.

The court appointed counsel to represent Mora and 

received a response from the prosecutor in accordance with 

section 1170.95, subdivision (c). The prosecution argued that 

Mora was the actual killer, and as such, was not entitled to relief. 

In support of this argument, the prosecutor submitted a copy of 

the opinion from Mora’s direct appeal but did not submit any 

documents from the trial itself.4 Defense counsel did not file a 

written response.

On January 7, 2020, the court denied the petition. Mora 

filed a timely notice of appeal. 

3 Mora also filed a second petition in July 2019. The only difference 

between the two documents appears to be that the second petition was 

signed whereas the first petition was not.

4 The minute order recording the petition’s filing says “***NO LEGAL 

FILE***”
4

DISCUSSION

Mora argues that the court, in denying his petition,

improperly relied on the facts as recounted in the opinion from 

his prior appeal. We conclude that any error was harmless 

because the jury instructions and verdict form establish that 

Mora was convicted as the actual killer under a malice theory, 

and as such, is not eligible for relief under section 1170.95.

1. S.B. 1437

S.B. 1437, which took effect on January 1, 2019, changed 

the law of murder to ensure a “person’s culpability for murder [is] 

premised upon that person’s own actions and subjective mens 

rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)

First, S.B. 1437 limited accomplice liability for murder. 

Under prior California law, every accomplice to an enumerated 

felony could be convicted of first degree murder if a death 

occurred during the commission of that felony—regardless of 

whether the accused killed or intended to kill. (See People v. 

Dillon (1983) 34 Cal.3d 441, 462–472.) Similarly, “a defendant 

who aided and abetted a crime, the natural and probable 

consequence of which was murder, could be convicted not only of 

the target crime but also of the resulting murder”—regardless of 

whether he acted with malice aforethought. (In re R.G. (2019) 35 

Cal.App.5th 141, 144.)

Now, however, a person may be convicted of murder only if: 

(1) he was the actual killer; or (2) with the intent to kill, he aided 

and abetted the actual killer’s commission of murder; or (3) he 

acted as a “major participant” in a felony listed in section 189 and

acted with “reckless indifference to human life.” (§ 189, subd. (e), 
5

as amended by Stats. 2018, ch. 1015, § 3; § 188, subd. (a)(3), as 

amended by Stats. 2018, ch. 1015, § 2.)

Second, S.B. 1437 abolished second degree felony murder. 

(Stats. 2018, ch. 1015, § 2, amending § 188, subd. (e)(3).) Thus, 

the felony murder doctrine now applies only to those felonies 

listed in section 189, subdivision (a), and to accomplices who meet 

the requirements in section 189, subdivision (e).

In addition to changing the law of murder prospectively, 

S.B. 1437 gave people who had been convicted under one of the 

now-invalid theories the opportunity to petition for resentencing 

under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.) 

Section 1170.95, subdivision (a), describes who may 

petition for resentencing under the statute. Subdivision (b) 

explains what information the petition must contain, where the 

petitioner must file it, who the petitioner must serve, and what 

the court should do if it’s incomplete. Subdivision (c) describes the 

process the court uses to determine whether the petitioner is 

entitled to an evidentiary hearing. Finally, subdivisions (d)–(g) 

describe the procedures for holding an evidentiary hearing, the 

type of evidence that may be admitted, the burden of proof, and 

the requirements for resentencing an eligible petitioner.

Here, the issue is whether Mora made a prima facie 

showing under subdivision (c).

2. Any error was harmless because other court records 

establish Mora was convicted as the actual killer.

From the record before us, it appears Mora is correct that 

the trial court’s ruling was based on the facts recited in the 

opinion in Mora’s direct appeal. He argues that because the facts 

in that opinion were recounted in the light most favorable to the 

judgment whereas at the prima facie review stage, the court must
6

view the facts in the light most favorable to the petitioner, the 

court must rely on the trial records themselves, not an appellate 

court’s interpretation of those records. (See, e.g., People v. 

Franklin (2016) 63 Cal.4th 261, 280 [“ ‘ “A court may take judicial 

notice of the existence of each document in a court file, but can 

only take judicial notice of the truth of facts asserted in 

documents such as orders, findings of fact and conclusions of law, 

and judgments.” ’ [Citations.]”]; Gilmore v. Superior Court (1991) 

230 Cal.App.3d 416, 418–419 [court may not take judicial notice 

of facts in an appellate opinion to prove the circumstances of a 

crime]; but see People v. Verdugo (2020) 44 Cal.App.5th 320, 333, 

review granted Mar. 18, 2020, S260493 [appellate opinion is part 

of the record of conviction that court may consider].)

We need not resolve that issue, however, because any error 

in this case was harmless under any standard of prejudice. (See 

People v. Watson (1956) 46 Cal.2d 818; Chapman v. California

(1967) 386 U.S. 18.) Mora’s trial jury was not instructed on either 

felony murder or the natural-and-probable consequences 

doctrine; it was instructed only on malice aforethought.5 To 

convict Mora of first degree murder, the jury had to find that he 

personally killed another human being with premeditation and 

deliberation. Because Mora was convicted under a valid theory of 

murder that survived the changes to sections 188 and 189, he is 

ineligible for relief under section 1170.95, and any error is 

harmless.

5 On September 30, 2020, this court granted the People’s unopposed 

motion to augment the record with, among other things, the jury 

instructions and verdict form. As relevant here, the jury was 

instructed with CALJIC Nos. 8.00, 8.10, 8.11, 8.20, 8.30, 8.70, and 

8.71.
7

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA, J.