People v. Mejia CA2/5

Filed 9/5/24 P. v. Mejia CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B330542

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA235662) v.

RICARDO MEJIA,

Defendant and Appellant.

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.

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relief—there was nothing in the instructions that permitted the jury to find Mejia guilty of murder on a theory that is no longer valid.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.