Filed 8/20/20 P. v. Mejia CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JUVENAL CARDENAS MEJIA,

Defendant and Appellant.

 B302951

 (Los Angeles County

Super. Ct. No. BA329116-04)

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.
2

________________________

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. 
3

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 
4

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 
5

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 gangmurder 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 
6

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 
7

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)?”
8

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. 
9

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 
10

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
11

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.) 
12

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. 
13

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.” 
14

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.)