By David M. Greenwald
Los Angeles, CA – An appellate court has reversed a trial court decision in the case of Ernesto Mejorado, convicted of first-degree murder and serving three terms of life.
In finding true the special circumstance allegation that Mejorado committed the murder while engaged in robbery, the jury could not determine whether Mejorado or a co-defendant was the actual killer, but they did find Mejorado either acted with intent to kill or acted with reckless indifference to human life and was a major participant in the robbery.
While Mejorado was involved in three murders, this ruling only impacts the 2005 killing of Flores (2009 conviction).
In seeking resentencing under PC section 1170.95, the trial court denied the petition, without appointing counsel. They held, like other courts have, that the jury’s special circumstance finding barred relief.
However, in a case decided after the denial of Mejorado’s petition, it was established that the trial court’s failure to appoint counsel under these circumstances was state law error. The error was prejudicial.
“(W)e reverse the trial court’s order denying defendant’s petition and remand with directions to appoint counsel, issue an order to show cause, and hold the hearing described in section 1170.95, subdivision (d),” the court writes.
Mejorado was a member of a gang, the Krazy Ass Mexicans, along with other participants in the incident that resulted in the death of Raymundo Flores.
On April 12, 2005, Flores was shot in the back of the head with a 380-caliber round and later died and was found in an alley.
“Flores drove a green Impala with special chrome rims and electronic equipment, and there was evidence suggesting he had recently come into possession of $18,000 and that this was known to Ramirez and Mejorado,” the court noted.
“The next day, Ramirez and Mejorado took the rims off the car, replaced the tires with spare tires, and took televisions and other electronic equipment from the car and put them in the house,” the court added.
In July 2020, Mejorado filed a resentencing petition, stating he was convicted of the first-degree felony murder of Flores and could not now be so convicted because of changes to the law.
He stated he was not the actual killer; he “did not, with the intent to kill, aid, abet, counsel, commend, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree”; and he “was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime or felony.”
The trial court denied that petition without appointing counsel.
The court’s minute order states that, although the jury was instructed before the Banks and Clark cases were decided, “the felony murder special circumstance instructions utilized did require the jury to find the petitioner was either the actual killer, an aider and abettor who had the intent to kill, or an aider and abettor who was a major participant in the underlying felony who acted with reckless indifference to human life.”
The trial court added that “the jury was properly instructed as to aider and abettor liability for felony murder. In such instance, the petitioner could still be convicted of murder under newly enacted Penal Code section 189(e). As such, petitioner is not eligible for relief as a matter of law and the petition may be summarily denied.”
The court writes that “we cannot say that the facts recited in our 2011 opinion establish, as a matter of law, that defendant acted with reckless indifference to human life during the course of the Flores robbery and murder…”
The prosecutor, in this case, believes that the court can infer from the evidence in that 2011 opinion that the defendant and Ramirez “together planned the robbery and murder of Flores.” The prosecutor adds the court can infer, from the evidence they stripped Flores’s car, “that they had the tools and materials necessary to strip the car because they had planned and prepared to kill Flores and strip his car prior to the robbery” and that from the fact Flores was shot in the back of the head, the defendant “knew that a firearm would be used in the robbery of Flores and [defendant] was aware of the dangers posed by the nature of that robbery.”
The court writes: “We are not persuaded these inferences are sufficient to establish as a matter of law that defendant intended to murder Flores or acted with reckless indifference to his life.”
They note, “We do not know whether defendant ‘use[d] or [knew] that a gun would be used during the felony.’”
In short, the court concludes that “it may be that the record of conviction contains other evidence bearing on the issue, but our opinion reveals little about defendant’s mental state during the course of the robbery.”
The court here notes that “an appellate opinion might not supply all answers,” and, therefore, “we are not prepared to conclude the facts described in our opinion conclusively refute defendant’s allegations as a matter of law.”
As such, “the trial court must issue an order to show cause and hold a hearing, in accordance with the provisions of section 1170.95, subdivision (d) then in effect.”