Filed 9/5/24 P. v. Mejia CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO MEJIA,

Defendant and Appellant.

 B330542

 (Los Angeles County

 Super. Ct. No. BA235662)

APPEAL from an order of the Superior Court of Los 

Angeles County, Eleanor J. Hunter, Judge. Affirmed.

Susan Morrow Maxwell, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy 

Attorneys General for Plaintiff and Respondent.
2

In 2002, the jury found Ricardo Mejia guilty of second

degree murder (Pen. Code1, § 187, subd. (a) count 1) and assault 

with a semi-automatic weapon (§ 245, subd. (b), count 2). The 

jury found true firearm use allegations as to both counts. 

(§ 12022.53, subds. (c) & (d) in count 1, § 12022.5, subds. (a) & (d)

in count 2.) Mejia was sentenced to 50 years to life in prison.

In 2022, Mejia filed a petition for vacatur of his murder 

conviction and resentencing pursuant to former section 1170.95 

(now § 1172.6). The trial court denied the petition because the 

record demonstrated that Mejia was prima facie ineligible for 

relief—there was nothing in the instructions that permitted the 

jury to find Mejia guilty of murder on a theory that is no longer 

valid.

On appeal, Mejia contends that the trial court instructed 

the jury on second degree felony murder under CALJIC No. 8.10, 

which is no longer a valid theory of liability. The trial court 

found that the instruction Mejia challenges was a draft 

instruction that was not actually given to the jury, despite its 

inclusion in the packet of jury instructions.

We agree with the trial court’s reading of the record and 

affirm the trial court’s order.

PROCEDURAL HISTORY

In 2022, Mejia filed a petition for resentencing under 

section 1172.6. 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

The People opposed the petition, attaching the prior 

appellate opinion and arguing that Mejia could still be convicted 

as the actual killer or as a major participant who acted with 

reckless indifference to human life.2

Appointed counsel filed a reply arguing that the prosecutor 

misapprehended the process at the prima facie showing stage of 

proceedings. At this first stage, Mejia had the burden to show 

that he was prosecuted under a now-invalid theory of murder. 

Mejia’s petition could only be denied if he was ineligible for relief 

as a matter of law. Whether the prosecution could prove that 

Mejia could still be convicted under a valid theory of law beyond a 

reasonable doubt could only be decided at an evidentiary hearing

in the next stage of proceedings. 

Mejia filed a supplemental reply after obtaining a copy of

the jury instructions given at trial. As relevant here, Mejia

argued that the jury was instructed on second degree felony 

murder, which is no longer a valid theory of murder liability, 

under CALJIC No. 8.10. 

At the prima facie hearing, the trial court advised the 

parties that it would only consider the jury instructions and 

verdicts and would not engage in fact-finding. The court denied 

Mejia’s petition because the jury was not instructed on second 

degree felony murder. The court determined that the version of 

CALJIC No. 8.10 that Mejia challenged had not been given to the 

jury, based on the fact that there were two sets of instructions in 

the packet that both included CALJIC No. 8.10—one was edited 

and appeared to be part of a complete set of instructions and the 

other was unedited, differently formatted, and accompanied by a 

2 Mejia was not tried under a theory of first degree felony 

murder.
4

much smaller and incomplete set of instructions. The version 

that would have permitted the jury to find Mejia guilty of second 

degree felony murder was in the unedited set of instructions, 

which the court believed to have been accidentally included in the 

packet behind the “instructions given” cover sheet.

DISCUSSION

A. Section 1172.6

Effective January 1. 2019, Senate Bill No. 1437 (2017–2018 

Reg. Sess.) amended sections 188 and 189, and added former 

section 1170.95 to the Penal Code. (Stats. 2018, ch. 1015, §§ 2–4.) 

Senate Bill No. 1437 limited application of the felony murder rule 

and eliminated murder based on the natural and probable 

consequences doctrine. Through former section 1170.95, Senate 

Bill No. 1437 also created a procedure by which a defendant 

previously convicted of murder under either of those theories 

could file a petition for resentencing. 

Effective January 1, 2022, Senate Bill No. 775 (2021–2022 

Reg. Sess.) amended former section 1170.95 to include persons 

convicted under a “theory under which malice is imputed to a 

person based solely on that person’s participation in a crime.”

(former § 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.) Former 

section 1170.95 was subsequently renumbered section 1172.6, 

with no change in text. (Stats. 2022, ch. 58, § 10.)

Pursuant to section 1172.6, subdivision (a)(1) to (3), a 

petitioner must file a petition in the sentencing court averring 

that: “(1) A complaint, information, or indictment was filed 

against the petitioner that allowed the prosecution to proceed 
5

under a theory of felony murder, murder 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 . . . [;] [¶] (2) The petitioner was convicted 

of murder . . . following a trial . . . [;] [¶] [and] (3) The petitioner 

could not presently be convicted of murder . . . because of changes 

to [s]ection 188 or 189 made effective January 1, 2019.” (See id., 

subd. (b)(1)(A).)

Upon receipt of a petition meeting these requirements, the 

trial court will appoint counsel, if requested. (§ 1172.6, subd. 

(b)(3).) The prosecutor must file a response within 60 days of the 

service of the petition, and the petitioner may file a reply within 

30 days of the response. (§ 1172.6, subd. (c).) When briefing has 

been completed, “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 

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

(Ibid.) Within 60 days of issuance of the order to show cause, the 

trial court shall hold a hearing “to determine whether the 

petitioner is entitled to relief[.]” (§ 1172.6, subds. (d)(1) & (3).) 

At the prima facie stage a trial court is only permitted to 

deny the petition if the record of conviction “foreclose[s] [the] 

possibility [that the petitioner was convicted under an invalid 

theory] as a matter of law.” (People v. Curiel (2023) 15 Cal.5th 

433, 470.) We independently review a trial court’s determination 

of whether a petitioner has made a prima facie showing. (People 

v. Harden (2022) 81 Cal.App.5th 45, 52.)
6

B. Analysis

On appeal, Mejia contends that the jury may have been 

given the version of CALJIC No. 8.10 that would permit the jury 

to convict him of second degree felony murder, and asks that this 

court remand the matter for an evidentiary hearing. The People 

disagree, arguing that, in addition to the differences in content 

and formatting, which strongly suggest the version of CALJIC 

No. 8.10 that Mejia challenges was not given to the jury, the 

reporter’s transcripts of the trial demonstrate that the prosecutor 

did not argue that Mejia was guilty of murder under a second 

degree felony murder theory and the trial court did not orally 

instruct the jury on the theory, foreclosing the possibility that the 

challenged version of CALJIC No. 8.10 was given. We agree with 

the People.

Viewing the instructions in isolation, it is clear that the 

instructions given to the jury did not contain the version of 

CALJIC No. 8.10 that would have permitted it to convict Mejia 

under a second degree felony murder theory. The instruction 

packet in the record includes a cover sheet that indicates the 

instructions given to the jury immediately follow. Following the 

cover sheet are nine instructions that are not tailored to reflect 

the circumstances of Mejia’s case—the instructions retain all of 

the bracketed language from the pattern instruction and contain

numerous blank lines intended to be filled in with case-specific 

details. The version of CALJIC No. 8.10 with which Mejia is 

concerned is among those instructions. The instruction has a 

grid at the top where the court may check off boxes to indicate 

which party requested the instruction, whether it was modified, 
7

and whether it was given. All of the check boxes are blank. That 

version of CALJIC No. 8.10 states:

“[Defendant is accused [in Count(s) ___________] of having 

committed the crime of murder, a violation of Penal Code section 

187.]

“Every person who unlawfully kills a [human being] [or] 

[fetus] [with malice aforethought] [or] [during the commission or 

attempted commission of __ (statutory felony) __] [a felony 

inherently dangerous to human life], is guilty of the crime of 

murder in violation of section 187 of the Penal Code.

“[In the crime of murder, a human fetus is defined as an 

unborn offspring in the postembryonic period, after major 

structures have been outlined. The period occurs in humans 

seven or eight weeks after fertilization.]

“[A killing is unlawful, if it [is] [was] [neither] [not] 

[justifiable] [nor] [excusable]].

“In order to prove this crime, each of the following elements 

must be proved:

“1. A human being was killed;

“[1.a. A human fetus was killed;]

“2. The killing was unlawful; and

“3. The killing [was done with malice aforethought] [or] 

[occurred during the commission of ___ (statutory felony) ___] [a 

felony inherently dangerous to human life. _______________ is a 

felony inherently dangerous to human life.].” 

The untailored instructions are immediately followed by a 

complete set of contiguous instructions that are formatted 

differently than the previous instructions and are tailored to 

Mejia’s case. Specifically, each page of the contiguous 

instructions includes a header with the case name (People v. 
8

Ricardo Mejia) and trial court case number (BA235662). The 

instructions are page numbered consecutively from page 1 

through page 22. The instructions contain margin references to 

the instruction number relating to each instruction. These 

instructions also include a version of CALJIC No. 8.10 that has 

been completed and contains none of the bracketed language that 

appears in the draft, as follows: 

“Defendant is accused in Count One of having committed 

the crime of murder, a violation of Penal Code section 187.

“Every person who unlawfully kills a human being with 

malice aforethought, is guilty of the crime of murder in violation 

of section 187 of the Penal Code.

“A killing is unlawful, if it was neither justifiable or 

excusable.

“In order to prove this crime, each of the following elements 

must be proved:

“1. A human being was killed; 

“2. The killing was unlawful; and

“3. The killing was done with malice aforethought.”

We agree with the trial court that, looking solely at the 

instructions, it is clear that only the second, tailored set of 

instructions was given to the jury, and that the first set was 

inadvertently included in the packet. 

Our conclusion is further solidified by the remainder of the 

record, which demonstrates that (1) the prosecutor did not argue 

that Mejia was guilty on a second degree felony murder theory; 

(2) the trial court did not orally instruct the jury using the 

untailored instructions, but rather read the instructions

contained in the contiguous, page numbered set only, and (3) the 

jury had no questions pertaining to CALJIC No. 8.10, which it 
9

surely would have if it had been given instructions containing 

empty blanks and bracketed language that did not make sense 

when included in the instruction in total. (i.e., “[A killing is 

unlawful, if it [is] [was] [neither] [not] [justifiable] [nor] 

[excusable]]”) Further, as the court was reading the instructions 

to the jury, it noted places where the instructions needed some 

interlineation to make a correction: the interlineations appear in 

handwritten notes on the contiguous set only. 

The jury was not instructed on an invalid theory of liability, 

and therefore did not convict Mejia under an invalid theory. 

Accordingly, Mejia is prima facie ineligible for relief.

DISPOSITION

We affirm the trial court’s order denying Mejia’s petition 

for resentencing pursuant to Penal Code section 1172.6.

NOT TO BE PUBLISHED.

MOOR, J.

We concur:

BAKER, Acting, P. J. LEE, J.

 Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.