P. v. Mireles

Filed 3/24/21 P. v. Mireles CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
OMAR MIRELES,
Defendant and Appellant.
B299600
(Los Angeles County
Super. Ct. No. BA289903)
APPEAL from an order of the Superior Court of Los
Angeles County. Robert J. Perry, Judge. Affirmed.
Gail Harper, 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 Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________

-- 1 of 12 --

2
In 2006, Omar Mireles was convicted of first degree murder
for the gang-related shooting death of Kevin Rosas. He was not
the shooter and was tried and convicted solely on the theory that
he was a direct aider and abettor. He now appeals the trial
court’s denial of his petition for resentencing pursuant to Penal
Code section 1170.95,1
a provision added by Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437).
Mireles’s conviction was not affected by SB 1437, so the trial
court correctly concluded he was not eligible for relief. We affirm.
BACKGROUND
Mireles and a co-defendant were charged with murder and
attempted murder after a gang-related shooting that left Rosas
dead. Mireles assaulted the victim, but was not the shooter.
Mireles and his co-defendant were tried separately. At a first
trial in Mireles’s case, the jury was instructed on the natural and
probable consequences theory of aiding and abetting first degree
murder. The jury deadlocked, and the court declared a mistrial.
On retrial, the prosecution proceeded solely on a theory of
direct aiding and abetting. The jury was only instructed on that
theory and was not instructed on natural and probable
consequences or felony murder. The jury found Mireles guilty of
first degree murder and found gang and firearm enhancements
true.
We affirmed the judgment. (People v. Mireles (B193180,
Mar. 5, 2008) [nonpub. opn.]) We rejected Mireles’s sole
argument that the trial court erred by admitting a video
recording of a commercial program showing Mireles and his co-
defendant discussing gang territory and the use of violence to
1 Undesignated statutory citations refer to the Penal Code.

-- 2 of 12 --

3
safeguard it. We found the video relevant because it was “direct
evidence that appellant possessed the intent necessary to render
him an aider-abetter and principal to the murder.” (People v.
Mireles, supra, B193180.) We also noted the video showed “direct
contact between appellant and [his co-defendant], in the course of
[his co-defendant]’s threatening to do what he did do in the
present instance. This was evidence of appellant’s knowledge of
[his co-defendant]’s unlawful purpose.” (Ibid.)
Mireles filed a petition for resentencing on January 22,
2019, contending he could not be convicted of murder in light of
the changes made by SB 1437. The Los Angeles District
Attorney’s office filed an opposition, which Mireles says was not
served on him. The trial court had trouble locating the file from
Mireles’s case, and ultimately the file was only “partially
reconstructed for the purpose of responding to this petition.”
According to Mireles, the reconstructed file consisted of a
probation officer’s report, a printout of court minutes from trial,
and the opposition to his section 1170.95 petition. The District
Attorney’s office took the facts from our prior appellate opinion
and argued the record of conviction showed Mireles was convicted
solely on a theory of directly aiding and abetting premeditated
murder. It also argued SB 1437 was unconstitutional in various
respects.
The court did not appoint counsel for Mireles and
summarily denied the petition. Taking the facts mostly from our
prior opinion, the court found Mireles “clearly acted with an
intent to kill and was a major participant who acted with reckless
indifference to human life in Rosas’s unprovoked senseless
murder.” The court also agreed with the District Attorney’s office
that SB 1437 was unconstitutional.

-- 3 of 12 --

4
DISCUSSION
Effective January 1, 2019, SB 1437 addressed “certain
aspects of California law regarding felony murder and the
natural and probable consequences doctrine by amending
sections 188 and 189” and by adding “section 1170.95, which
provides a procedure by which those convicted of murder can seek
retroactive relief if the changes in law would affect their
previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)”
(People v. Martinez (2019) 31 Cal.App.5th 719, 722–723
(Martinez).) In short, SB 1437 “was enacted to ‘amend the felony
murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (Martinez, at p. 723.)
This change “did not, however, alter the law regarding the
criminal liability of direct aiders and abettors of murder because
such persons necessarily ‘know and share the murderous intent
of the actual perpetrator.’ [Citations.] One who directly aids and
abets another who commits a murder is thus liable for murder
under the new law just as he or she was liable under the old law.”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev.
granted, Mar. 18, 2020, S260598; see People v. Gentile (2020) 10
Cal.5th 830, 848 (Gentile) [SB 1437 “does not eliminate direct
aiding and abetting liability for murder because a direct aider
and abettor to murder must possess malice aforethought.”].)
Section 1170.95 creates a multi-step procedure for a
defendant to petition for resentencing pursuant to SB 1437.
A defendant may petition for resentencing if he or she was

-- 4 of 12 --

5
“convicted of felony murder or murder under a natural and
probable consequences theory” and the following conditions are
met: “(1) A charging document was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) The petitioner was convicted of first or second
degree murder following trial or an accepted plea; and (3) The
petitioner could ‘not be convicted of first or second degree murder
because of changes to Section[s] 188 or 189’ made by Senate Bill
No. 1436. (§ 1170.95, subd. (a).) [¶] Under section 1170.95,
subdivision (b), the petition must include: a declaration from the
petitioner that he or she is eligible for relief under the statute,
the superior court’s case number and year of conviction, and a
statement as to whether the petitioner requests appointment of
counsel. (§ 1170.95, subd. (b)(1).) If any of the required
information is missing and cannot ‘readily [be] ascertained by the
court, the court may deny the petition without prejudice to the
filing of another petition.’ (§ 1170.95, subd. (b)(2).)” (Lewis,
supra, 43 Cal.App.5th at pp. 1135–1136.)
Section 1170.95, subdivision (c) sets forth the procedure
once the defendant files a complete petition: “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 requested counsel, the court
shall appoint counsel to represent the petition. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. If the petitioner makes a prima

-- 5 of 12 --

6
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.”
Should the court issue an order to show cause, it must hold
a hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d).) If the court vacates the murder conviction,
the court must resentence the defendant on the remaining
counts, or if no target offense was charged, “the petitioner’s
[murder] conviction shall be redesignated as the target offense or
underlying felony for resentencing purposes.” (§ 1170.95, subds.
(d)(3) & (e); see Lewis, supra, 43 Cal.App.5th at pp. 1136–1137.)
Largely ignoring the record of conviction that conclusively
shows neither natural and probable consequences nor felony
murder played any part in his conviction, Mireles advances four
reasons why the trial court erred in denying his petition: (1) the
court erred and violated his constitutional due process rights by
not appointing him counsel, issuing an order to show cause, and
holding a hearing; (2) the court improperly relied on our prior
opinion in his direct appeal to deny relief without reviewing the
full record of conviction; (3) the court violated his equal protection
rights by refusing to apply SB 1437 to his case; and (4) section
1170.95 is unconstitutional. We reject each of his claims.
Any Alleged Procedural Errors Were Harmless Because
Mireles Was Not Entitled to Resentencing
We follow the cases interpreting section 1170.95,
subdivision (c) to permit a trial court to summarily deny a
petition without appointing counsel when the defendant fails to
make a prima facie showing of eligibility for resentencing.
(People v. Falcon (2020) 57 Cal.App.5th 272, 275–276, rev.
granted, Jan. 27, 2021, S266041 [citing cases].) In doing so, the
court may consider the record of conviction, including the jury

-- 6 of 12 --

7
instructions from the petitioner’s trial. (Ibid.; People v. Soto
(2020) 51 Cal.App.5th 1043, 1055 (Soto), rev. granted, Sept. 23,
2020, S263969; People v. Smith (2020) 49 Cal.App.5th 85, 92,
fn. 5, rev. granted, July 22, 2020, S262835 [“For example, if the
jury was not instructed on a natural and probable consequences
or felony murder theory of liability, the petitioner could not
demonstrate eligibility as a matter of law because relief is
restricted to persons convicted under one of those two theories.”].)
We have taken judicial notice of the full record of conviction
in Mireles’s trial, including the jury instructions given at his
retrial. Plus, Mireles conceded in his appellate briefs he was
tried as a direct aider and abettor. These instructions made
absolutely clear he was tried only as a direct aider and abettor.
Natural and probable consequences and felony murder played no
part in his conviction. Because the jury necessarily found he
harbored malice when it convicted him as a direct aider and
abettor, he was not entitled to resentencing as a matter of law.
(Lewis, supra, 43 Cal.App.5th at p. 1137 [“Because one can be
convicted of murder even after the amendments if he or she
directly aided and abetted the perpetrator of the murder,
defendant was required to make a prima facie showing that he
was not such a direct aider and abettor.”]; see Soto, supra, 51
Cal.App.5th at p. 1055 [jury instructions showed as matter of law
defendant could not make prima facie showing under section
1170.95].)
Because Mireles was not entitled to relief, he suffered no
prejudice under any standard from the trial court’s failure to
appoint counsel or hold a hearing, or from the court’s reliance on
our prior opinion without considering other documents in the
record of conviction. (People v. Daniel (2020) 57 Cal.App.5th 666,

-- 7 of 12 --

8
676 (Daniel), rev. granted, Feb. 21, 2021, S226366 [“[A]
defendant . . . whose petition is denied before an order to show
cause issues has the burden of showing ‘it is reasonably probable
that if [he or she] had been afforded assistance of counsel his [or
her] petition would not have been summarily denied without an
evidentiary hearing.’ ”]; see People v. Edwards (2020) 48
Cal.App.5th 666, 675, rev. granted, July 8, 2020, S262481
[finding failure to appoint counsel, obtain briefing, or hold a
hearing on section 1170.95 petition harmless under any
standard].)2 We reject Mireles’s suggestion that these alleged
errors are not susceptible to harmless error analysis. (Daniel,
supra, at p. 675 [“[T]he failure to appoint counsel upon the filing
of a facially sufficient petition under section 1170.95 is
susceptible to review for prejudice. [Citation.] And harmlessness
2 The trial court denied Mireles’s petition because he acted
with the intent to kill and because he “was a major participant
who acted with reckless indifference to human life” in Rosas’s
murder. Mireles devotes almost 20 pages of his lengthy opening
brief to arguing the trial court improperly applied the major
participant/reckless indifference standard by relying on our prior
appellate opinion, which was issued before the decisions in People
v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63
Cal.4th 522. His argument is beside the point. The major
participant/reckless indifference standard applies to felony
murder, which was not part of Mireles’s case. (People v. Lopez
(2019) 38 Cal.App.5th 1087, 1103, fn. 9, rev. granted, Nov. 13,
2019, S258175.) We may affirm on any ground presented in the
record. (People v. Financial Casualty & Surety, Inc. (2017) 10
Cal.App.5th 369, 386.) The trial court properly denied his
petition because the jury found he was a direct aider and abettor
who acted with malice.

-- 8 of 12 --

9
is established if the record ‘conclusively demonstrate[s] that
[the petitioner] was ineligible for relief as a matter of law.’ ”].)3
Mireles’s Equal Protection Claim Fails
Recognizing his conviction as a direct aider and abettor
disqualified him from resentencing, Mireles contends section
1170.95 violated his state and federal equal protection rights
because he was similarly situated to a gang defendant convicted
as an aider and abettor based on the natural and probable
consequences doctrine, who is entitled to resentencing pursuant
to section 1170.95. His theory is this: Natural and probable
consequences gang cases eliminated by SB 1437 are similar to
direct aider and abettor gang cases “where, in the absence of
evidence to support a finding of aiding and abetting, an expert
testifies to gang practices, offers the opinion that the defendant is
a gang member, and concludes that the defendant acted
according to the gang’s rules and with the mental state required
to find the defendant aided and abetted the killer.” In Mireles’s
view, both types of aiders and abettors lack the mental state for
murder but SB 1437 benefits only one class and not the other.
“The concept of equal treatment under the laws means that
persons similarly situated regarding the legitimate purpose of the
law should receive like treatment. [Citation.] ‘ “The first
prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification
3 In his reply brief, Mireles argues the failure to appoint
counsel was prejudicial because counsel would have raised his
equal protection argument in the trial court. As we will explain
in the text, this contention lacks merit, so raising it in the trial
court would not have avoided denial of his petition.

-- 9 of 12 --

10
that affects two or more similarly situated groups in an unequal
manner.” [Citations.] The initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are
similarly situated for purposes of the law challenged.” ’ ” (People
v. Morales (2016) 63 Cal.4th 399, 408.)
As a direct aider and abettor, Mireles was not similarly
situated to a defendant convicted of murder based on the natural
and probable consequences doctrine. The jury in Mireles’s case
found he was a direct aider and abettor who acted with malice
and with premeditation and deliberation or by lying in wait.
(Gentile, supra, 10 Cal.5th at p. 844 [“[W]hen a person directly
aids and abets a murder, the aider and abettor must possess
malice aforethought.”].) Until recently, a jury could convict a
defendant of first degree murder based on natural and probable
consequences without finding the defendant possessed malice
aforethought. (Id. at p. 845 [“[W]hen a person aided and abetted
a nonhomicide crime that then resulted in a murder, the natural
and probable consequences doctrine allowed him or her to be
convicted of murder without personally possessing malice
aforethought. So long as the direct perpetrator possessed malice,
and the killing was the natural and probable consequences of the
crime the defendant aided and abetted, it did not matter whether
the defendant intended to kill or acted with conscious disregard
for human life.”].)
In passing SB 1437, the Legislature “stated a need for
‘statutory changes to more equitably sentence offenders in
accordance with their involvement in homicides.’ (Stats. 2018,
ch. 1015, § 1, subd. (b).) Accordingly, the Legislature found it
‘necessary to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure

-- 10 of 12 --

11
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.’ (Id., § 1, subd. (f).)
Critically, the Legislature said that with the exception of the
felony murder rule, ‘[a] person’s culpability for murder must be
premised upon that person’s own actions and subjective mens
rea.’ (Id., § 1, subd. (g), italics added.) These findings, like the
text of the statute, clearly indicate that the Legislature intended
to restrict culpability for murder outside the felony-murder rule
to persons who personally possess malice aforethought.” (Gentile,
supra, 10 Cal.5th at pp. 846–847.)
The jury’s finding that Mireles possessed malice
aforethought as a direct aider and abettor sets him apart from
defendants who are convicted of murder without a finding of
malice, the class of persons the Legislature sought to benefit
through SB 1437. (Cf. People v. Cervantes (2020) 44 Cal.App.5th
884, 888 [“Normally ‘offenders who commit different crimes are
not similarly situated’ for equal protection purposes.”].) A
defendant like Mireles is not the target of SB 1437, and he is not
similarly situated to those who are. (Cf. People v. Johnson (2020)
57 Cal.App.5th 257, 270–271 (Johnson) [“Johnson is also not
similarly situated to persons convicted of felony murder or
murder under the natural and probable consequences doctrine
because ‘[u]like [these murders], “[a] murder conviction under the
provocative act doctrine . . . requires proof that the defendant
personally harbored the mental state of malice . . . .” ’ ”].)
At base, Mireles’s complaint is that insufficient evidence
supported the jury’s finding as to his intent because, in his view,
the jury inferred his intent solely based on the gang expert’s

-- 11 of 12 --

12
opinion. Whether or not accurate, he should have raised that
sufficiency-of-evidence claim in his direct appeal more than a
decade ago. Section 1170.95 was not intended to allow a direct
aider and abettor to attack a jury’s finding that he possessed
malice aforethought in a long-final murder conviction. (See
§ 1170.95, subd. (a) [creating petitioning procedure for “[a] person
convicted of felony murder or murder under a natural and
probable consequences theory”].) The Legislature did not run
afoul of equal protection by excluding direct aider and abettors
like Mireles from section 1170.95.
We Need Not Address the Constitutionality of Section
1170.95
Having concluded Mireles was not entitled to resentencing,
we need not address the trial court’s alternative finding that
section 1170.95 is unconstitutional. (See Johnson, supra, 57
Cal.App.5th at p. 261 [declining to consider constitutional
arguments because defendant was not entitled to resentencing].)
We do note our agreement with the overwhelming view that
section 1170.95 does not violated Propositions 7 and 115; does not
violate Marcy’s Law; and does not violate the separation of
powers. (See, e.g., People v. Lippert (2020) 53 Cal.App.5th 304,
313–314 [noting cases rejecting constitutionality challenges to SB
1437].)
DISPOSITION
The order is affirmed.
BIGELOW, P. J.
We Concur:
STRATTON, J. WILEY, J.

-- 12 of 12 --