People v. Mora CA2/1

Filed 6/24/21 P. v. Mora CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B308321

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA018211)
v.

WILLIAM ALEXANDER MORA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed and
remanded.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Amanda V. Lopez and Stephanie A. Miyoshi, Deputy Attorneys
General, for Plaintiff and Respondent.
 ____________________________

William Alexander Mora challenges the trial court’s denial
of his petition for resentencing pursuant to Penal Code
section 1170.95.1 The trial court denied the petition after holding
a hearing at which the prosecutor proffered Mora’s testimony at a
parole hearing; Mora presented no new evidence. On appeal,
Mora argues that the superior court misunderstood this court’s
prior opinion in concluding that Mora acted with malice. Mora
also argues that the trial court applied the wrong standard of
proof to determine whether the prosecution established its
burden to show petitioner was not eligible for resentencing.
According to Mora, the trial court “appear[s] to have primarily
relied upon this Court’s prior analysis” rather than acting as an
independent factfinder. We find no prejudicial error, and affirm
the order denying Mora’s petition for resentencing. We remand
the case for the limited purpose of amending the abstract of
judgment to conform to the disposition in this court’s prior
opinion.

BACKGROUND
Two doctors concluded, and it is undisputed, that Daniel
Rios, a member of the 18th Street gang, died as a result of
extensive burns. 2 (People v. Escobar, et al. (June 30, 1998,
B087052) [nonpub opn.] at p. 6 (Escobar).) A jury convicted
Mora, a member of the Playboys gang, of the second degree

1 Undesignated statutory citations are to the Penal Code.
2 Mora was tried with other defendants, including Edgar
Escobar. We summarize only the facts relevant to the current
appeal.

2
murder of Daniel Rios and of aggravated mayhem, also involving
Rios. (Id. at p. 2.) With respect to both offenses, the jury found
true that Mora personally used a deadly and dangerous weapon
within the meaning of section 12022, subdivision (b).3 (Escobar,
at p. 2.) The jury rejected allegations against Mora of first degree
murder, first degree murder by means of torture, and first degree
murder by means of lying in wait. (Ibid.)
After trial, the sentencing court indicated that “defendant
cannot be sentenced on both counts . . . . In my view the
aggravated mayhem was a method by which the infliction of
death was accomplished . . . .” The court stayed the life sentence
on aggravated mayhem pursuant to section 654. In discussing
the aggravating factors, the sentencing court stated: “The victim
was vulnerable, being intoxicated at the time he was
apprehended by the rival gang. The defendant, Mr. Mora, was an
active participant in taking him from his territory to rival
territory where he was then beaten, and he was the first,
Mr. Mora was the first to actually start the infliction of pain on
the victim.” Mora’s trial counsel agreed that Mora “was the one
that initially saw the 18th Streeter, he was the one that initially
struck the 18th Streeter in the alley and he was the one who in
part was responsible for bringing him back to the alley.”

3 The People had alleged Mora had used “a deadly and
dangerous weapon, to wit, fists, feet, bottle, a wooden stake, and
a cigarette lighter.” (Escobar, supra, B087052, at p. 2.) Our
opinion noted that “the word ‘lighter’ was handwritten in the
margin of the information,” a lighter was not on the verdict form,
and “[t]here was no finding by the jury that the cigarette lighter
which [co-defendant] Funes had procured to set Rios afire was a
dangerous or deadly weapon.” (Id. at p. 23.)

3
 Mora appealed from the judgment of conviction.

1. Statement of facts in the appeal from the judgment of
conviction
The prior appellate opinion following the judgment of
conviction (sometimes referred to as the Opinion), is central to
the current case because the parties and the trial court relied on
it. We recite below the facts recounted in our Opinion.
On April 6, 1990, Mora attended a party with other Playboy
gang members. (Escobar, supra, B087052, at p. 3.) The Playboys
and the 18th Street gang were rival gangs. (Ibid.) On his way
home, “Mora heard a man yell ‘18th Street.’ Mora ‘gave him the
finger.’ The man responded by throwing a bottle at Mora’s car.
Mora, a ‘veterano,’ an older member of a gang who has been in a
gang for a long time, went back to the neighborhood to ‘get some
youngsters.’ ” (Escobar, at p. 4.)
“Back at the neighborhood when Mora stated what
happened, . . . [Manuel] Martinez and [Arturo] Sanchez got into
Mora’s car with Mora, then went back to [the location where
Mora saw Rios]. Martinez was angry about the shooting of his
girlfriend on the previous night.” (Escobar, supra, B087052, at
p. 4.) When they located Rios, “Martinez struck him in the face
and started beating him. Mora pulled him off of the man and
they left the scene.” (Ibid.)
“They went back to the [Playboys’] neighborhood. They told
the 15 to 18 people left at the party what had happened. Sanchez
said he had hit the man in the face. Either Martinez or [another
Playboy gang member] suggested that they should return and
bring the man back to the alley.” (Escobar, supra, B087052, at
p. 4.) Martinez drove himself and four other gang members
including Mora to the area where they had seen Rios, and “Mora

4
pointed out” Rios. (Ibid.) Rios “had an 18th Street tattoo on his
shoulder and he appeared to be drunk. There were bruises on his
face; he looked like he had been in a fight.” (Ibid.)
“Mora lured Rios into Martinez’s truck by telling Rios that
he [Mora] was an 18th Streeter and that they would take Rios
home. They drove back to the party area. There were still
approximately 15 to 18 gang people there. Mora identified
himself to Rios as a Playboy and then struck Rios in the face
knocking him to the ground. About 15 gang [members] who were
present began beating and kicking the fallen Rios in his head,
torso, and face. . . . [A Playboy gang member], who had been
hitting, kicking, and jumping on Rios, took a bottle and smashed
it over Rios’s face. He then picked up a pointed wooden stick and
pushed it into Rios’s ear. Rios was bleeding profusely from his
face and ear . . . . The assault lasted 10 to 15 minutes.
“When the beating stopped, some of the Playboys ran away,
leaving Rios in the alley. Mora [and three other 18th Street gang
members], and an unidentified female then dragged Rios down
the alley and put him in or near a dumpster. . . . Someone stuffed
paper between Rios’s legs, then some of the women sprayed Rios
with hairspray; some of the men doused him with gasoline.
[Ulysses] Funes [another Playboy] then procured a cigarette
lighter from Mora’s vehicle; [w]ith three others, Funes went down
the alley to where Rios was lying. A few moments later, there
was smoke. When the men returned, they said they had set Rios
on fire. After the gang members moved away from Rios, one of
them returned; he poured something on Rios that made the fire
flare up and one of the gang member’s shoes caught on fire.”
(Escobar, supra, B087052, at pp. 3–5.)

5
 “The doctors stated that had Rios lived, he may have
suffered permanent deformity in addition to chronditis, a chronic
infection of the cartilage which would recur throughout his
lifetime. Several of Rios’s teeth were broken. The right side of
his scalp and neck suffered second and third degree burns. There
were lacerations to his lower lip, inner mucosa and to the portion
of the tongue where it attached to the mouth. The tongue itself
was ‘markedly swollen.’ He had inhaled toxic or hot gasses which
damaged his lungs and bronchial tubes. He had third degree
burns over 45 percent of his body and second degree burns over
13 percent of his body, located principally on his legs and back
and right arm and face. The severity of the burns was such that
at least one of Rios’s legs would have had to be amputated or
would have had severe reduction in function had he lived. His
kidney function was severely damaged. He was placed on
dialysis to purge the blood of toxins. A CAT scan showed
swelling and bleeding in the wall of his abdominal cavity. Rios
died on April 11, 1990.” (Escobar, supra, B087052, at pp. 5–6.)

2. The Opinion reverses the enhancement
Following Mora’s appeal from the judgment of conviction,
we reversed the personal use of a deadly weapon enhancement,
finding that hands, fists, or feet are not dangerous and deadly
weapons. (Escobar, supra, B087052, at pp. 20–23.) “We hold to
be erroneous the jury finding that any appellant’s use of hands,
fists, or feet in the beating of Rios constituted personal use of a
deadly or dangerous weapon, in violation of section 12022,
subdivision (b).” (Escobar, at pp. 22–23.)

6
3. The Opinion rejects the argument that insufficient
evidence supported aggravated mayhem
On appeal from the judgment of conviction, Mora argued
that he lacked the specific intent to support the aggravated
mayhem conviction.4 (Escobar, supra, B087052, at p. 17.) In the
context of discussing this issue, this court explained that Mora
and a codefendant “were the moving participants in the burning
of the victim.” (Id. at p. 19.) Mora participated in the beating of
Rios. (Id. at p. 20.) “After Rios was on fire, . . . Mora and [a
codefendant] came back smiling and laughing to the location
where the other Playboys were standing.” (Id. at p. 19.) We also
concluded, “[t]he jury was presented with substantial evidence to
support a verdict of aggravated mayhem based upon either the
burning of the victim or the controlled, directed stomping of his
head and face.” (Id. at p. 20.)

4. The Opinion rejects Mora’s argument that the second
degree murder must be reversed
In the appeal from the judgment of conviction, Mora
argued: “The second degree murder conviction must be reversed
because the natural-and-probable-consequences doctrine on
which it rests violates the merger rule of People v. Ireland [(1969)

4 Section 205 provides in pertinent part: “A person is
guilty of aggravated mayhem when he or she unlawfully, under
circumstances manifesting extreme indifference to the physical or
psychological well-being of another person, intentionally causes
permanent disability or disfigurement of another human being or
deprives a human being of a limb, organ, or member of his or her
body.”

7
70 Cal.2d 522 (Ireland)].”5 (Capitalization & boldface omitted.)
Mora further argued: “When a killing arises out of an assault,
the state may not rely on the natural-and-probable-consequence
rule to avoid its obligation to prove malice.” (Boldface omitted.)
Ireland, on which Mora relied, held that the felony murder
based on assault with a deadly weapon as the underlying murder
relieved the prosecution of proving malice aforethought. (Supra,
70 Cal.2d at pp. 538–539.) In Ireland, the jury could have
convicted defendant of second degree murder by finding “only
that the homicide was committed in the perpetration of the crime
of assault with a deadly weapon.” (Id. at p. 539.) “To allow such
use of the felony-murder rule would effectively preclude the jury
from considering the issue of malice aforethought in all cases
wherein homicide has been committed as a result of a felonious
assault—a category which includes the great majority of all
homicides. This kind of bootstrapping finds support neither in
logic nor in law. We therefore hold that a second degree felony-
murder instruction may not properly be given when it is based
upon a felony which is an integral part of the homicide and which
the evidence produced by the prosecution shows to be an offense
included in fact within the offense charged.” (Ibid.)
As noted, Mora argued that Ireland’s rule with respect to
felony murder should be extended to second degree murder based
on the natural and probable consequences doctrine. The Opinion

5 The trial court instructed the jury: “ ‘ One who aids and
abets another in the commission of a crime is not only guilty of
that crime, but is also guilty of any other crime committed by a
principal which is a natural and probable consequence of the
crime originally aided and abetted.’ ” (Escobar, supra, B087052,
at p. 30.)

8
rejected Mora’s arguments. At the outset this court explained:
Mora “is the one who initially crossed paths with Rios; who had
an altercation with him; who felt disrespected by him; who went
to the party location and picked up ‘some youngsters’ and then
returned to the location where Rios was beaten; who again
returned to the party area, changed vehicles, and with four
others went to pick up Rios and bring him back to the
neighborhood; who lured Rios into the truck; who led Rios into
the alley and was the first to punch him; who participated in the
group beating; who helped drag him to the dumpster area where
gasoline and hairspray were poured on Rios and papers stuffed
between his legs; whose car it was from which the cigarette
lighter which set Rios on fire was procured; and, who emerged
from the alley smiling even as Rios was being burned alive after
having been severely beaten.” (Escobar, supra, B087052, at
p. 28.)
Based on these facts (which are not disputed in the current
appeal), the Opinion explained: “Mora comes within the
penumbra of liability as a principal, not as an aider and abettor.”
(Escobar, supra, B087052, at p. 30.) We held that the principles
of Ireland did not apply because Mora “was a perpetrator, not an
aider and abettor. His liability is direct, not derivative. In
addition, Mora has conspiratorial liability.” (Ibid.) “Here,
several gangbangers combined to commit the unlawful act of
removing a person from one locale to another and beating and
then burning him to death.” (Id. at p. 31.)

5. Mora’s trial testimony
Mora testified that he joined the Playboys in 1979 or 1980.
Mora also testified that the Playboys and 18th Street gang were
rivals and that rival gang members shot at each other. The

9
rivalry had lasted at least 10 years and “[p]eople were being
killed and shot at for at least ten years . . . .”
On the night of the murder, Mora saw Rios “throwing 18th
Street gang signs.” Mora “flipped him off” and Rios “threw a
bottle” at Mora’s car. Mora left and later returned with two
confederates who beat up Rios. Mora tricked Rios into entering
his confederate’s truck. Mora knew transporting Rios to Playboy
territory would create danger for Rios. Mora testified that once
Rios was in Playboy territory, Mora was the first to hit him.
After Mora hit him, 10 to 13 other Playboys joined in beating
Rios. Mora saw Rios on fire but testified that he did not light the
fire. Mora did not assist Rios, but he claimed to have called 911.
Mora testified that he did not intend to kill Rios and did
not think Rios would be killed. Mora also denied laughing and
joking after seeing Rios on fire. Mora did not feel “bad” about
Rios but he also did not “feel good about” the fact his fellow gang
member set Rios on fire.

6. Petition for resentencing
On June 30, 2019, Mora filed a petition for resentencing.
Mora alleged that he was convicted of second degree murder
pursuant to the felony-murder rule or the natural and probable
consequences doctrine. Mora also alleged that he could not now
be convicted of murder because of changes made to sections 188
and 189 effective January 1, 2019. The trial court appointed
counsel to represent Mora.
The People opposed the petition, arguing, among other
things, that Mora was a direct participant in the murder and
thus was not eligible for relief under section 1170.95. The People
included as exhibits the record from Mora’s appeal from the

10
judgment of conviction6 and a transcript of Mora’s 2018 parole
hearing, which is summarized below.
Defendant’s counsel argued in reply that the jury could
have convicted defendant based on the natural and probable
consequences doctrine, “that murder is the natural and probable
consequence of an assault.”
The trial court issued an order to show cause and set the
matter for a hearing.

7. Parole hearing
At his June 12, 2018, parole hearing, Mora stated that Rios
threw a bottle at Mora’s car so Mora “went back to the
neighborhood and picked up a few homeboys and went back and
beat this guy up.” Mora “directed [his] homeboys to get out of the
car, and [Mora] . . . pointed him [Rios] out,” and Mora’s fellow
gang members beat up Rios. Mora then “had the bright idea to
bring him [Rios] back to the neighborhood.” Mora believed that
Rios violated a “code of honor” when Rios entered Mora’s
“territory” and Mora wanted to make Rios “pay.”
Mora put Rios in Martinez’s truck. Once Rios exited the
truck, Mora started to punch him. Then 10 to 15 people started
to beat up Rios. They were “ready to follow” Mora’s directions.
Mora “threw the first punch.” The gang members dragged Rios
down an alley and started to hit him with sticks. Mora started to
walk away when someone doused Rios in gasoline kept in Mora’s
car. Mora did not know his fellow gang member would light Rios
on fire. Mora saw that Rios was on fire but he did not start the

6 Finding good cause, we augmented the record in the
current appeal to include that record from the prior appeal.

11
fire. After the “alley burning,” Mora went home and, on the way
home, called 911.
Mora testified, “I didn’t care about his [Rios’s] life or”
Mora’s own life. He believed Rios had to “pay” because Rios
“trespass[ed]” Mora. Mora testified he was “callous” to Rios’s
“well-being.”

8. Section 1170.95, subdivision (d)(3) hearing
At the outset, the trial court ruled that it would consider
the defendant’s statements made under oath at his parole
hearing.7 The People proffered no other new evidence; Mora
proffered none.
The People argued Mora was a direct participant in the
second degree murder. The People further argued that Mora’s
testimony at the parole hearing demonstrated that he was the
person who started the events. The People concluded that Mora
therefore could be found guilty under current law.
Defense counsel emphasized that the jury rejected the first
degree murder count and murder by torture allegation. Defense
counsel reasoned that the jury rejected “him being involved in
lighting the victim on fire” when it found the torture allegation
not true. Counsel further argued that the jury must have
convicted Mora based on a natural and probable consequences
theory.

9. Trial court ruling
The trial court denied Mora’s petition for resentencing.
Relying on the Opinion, the trial court explained that Mora and

7Mora does not challenge admission of these statements
on appeal.

12
[another Playboy] “were the moving participants in the burning
of the victim.” The Opinion stated that Mora “participated in the
beating of the victim, and the victim in this case suffered massive
injuries to his head and face from the beating . . . .” The trial
court relied on the Opinion’s description of Mora as “the one who
initially crossed paths with Rios who was the victim, who had an
altercation with him, who felt disrespected by him, who went to
the party location and picked up . . . ‘some youngsters’ . . . and
then returned to the location where Rios was beaten, who, again
returned to the party area, changed vehicles, and with four
others went to pick up Rios and bring him back to the
neighborhood who lured Rios into the truck, who led Rios into the
alley and was the first to punch him, who participated in the
group beating, who helped drag him to the dumpster area where
gasoline and hair spray were poured on Rios and papers stuffed
between his legs, whose car it was from the cigarette lighter
which set Rios on fire was procured and who emerged from the
alley smiling even as Rios was being burned alive after having
been severely beaten.”
The trial court stated that Mora was a “perpetrator of an
assault.” Relying on the Opinion, the court stated that “Mora
comes within the penumbra of liability as a principal, not an
aider and abettor.” Relying on the Opinion, the trial court stated
that “defendant’s liability relating to Mora is direct, not
derivative.”
The trial concluded that the Opinion “found that this was
not based on the natural and probable consequences theory which
is derivative, but as a direct perpetrator to the crime. So
consequently, [in] this case [the] Court of Appeal found the

13
defendant acted with either express or implied malice, not from
derivative liability.”
The trial court ultimately concluded: “Based upon the
totality of the evidence I have before me, the People have met
their burden by proof beyond a reasonable doubt, and the petition
is denied.”

DISCUSSION

A. Legal Background
“[U]nder the natural and probable consequences doctrine,
an accomplice is guilty not only of the offense he or she directly
aided or abetted (i.e., the target offense), but also of any other
offense committed by the direct perpetrator that was the ‘natural
and probable consequence’ of the crime the accomplice aided and
abetted (i.e., the nontarget offense).” (People v. Gentile (2020)
10 Cal.5th 830, 843 (Gentile).) “ ‘[A]ider and abettor culpability
under the natural and probable consequences doctrine is
vicarious in nature’ and ‘ “is not premised upon the intention of
the aider and abettor to commit the nontarget offense because
the nontarget offense” ’ may not be intended at all.” (Id. at
p. 844.) The natural and probable consequences doctrine
applies to an aider and abettor. (People v. Lombardo (2020)
54 Cal.App.5th 553, 556.) The natural and probable
consequences doctrine imposes vicarious liability on the aider and
abettor for the nontarget offense. (People v. Offley (2020)
48 Cal.App.5th 588, 595 (Offley).)
Recent changes in the law prevent the use of the natural
and probable consequences doctrine to convict a defendant of
murder when the defendant only aided and abetted a
nonhomicide crime that resulted in murder. (Gentile, supra,

14
10 Cal.5th at p. 845; § 188.) Section 1170.95 sets forth a process
for a person convicted of murder under a natural and probable
consequences theory to seek resentencing.8 (Gentile, at p. 853.)
The recent changes to the law on murder do not alter “the
viability of murder convictions based on implied malice, and the
definition of implied malice remains unchanged.” (People v.
Clements (2021) 60 Cal.App.5th 597, 618, review granted
Apr. 28, 2021, S267624 (Clements); People v. Soto (2020)
51 Cal.App.5th 1043, 1057, review granted Sept. 23, 2020,
S263939.) Implied malice has a physical and mental component.
“ ‘ “The physical component is satisfied by the performance of ‘an
act, the natural consequences of which are dangerous to life.’
[Citation.] The mental component is the requirement that the
defendant ‘knows that his conduct endangers the life of another
and . . . acts with conscious disregard for life.’ [Citation.]” ’
[Citation.]” (People v. Soto (2018) 4 Cal.5th 968, 974.)

B. The Trial Court’s Denial of Mora’s Petition for
Resentencing Is Consistent With the Opinion but
Even Assuming Error Arguendo Mora Demonstrates
No Prejudice
Mora argues that the trial court “denied appellant’s Penal
Code section 1170.95 petition based upon a fundamental
misunderstanding of this Court’s prior opinion . . . .” Specifically,
Mora attacks the trial court’s statement that the Opinion “found
that . . . this was not based on the natural and probable
consequences theory which is derivative, but as a direct

8 With the exception for police officers killed in the course
of duty, these recent changes also extend to felony murder (§ 189,
subd. (e)). Felony murder is not at issue in the current case.

15
perpetrator to the crime. So consequently, [in] this case[, the]
Court of Appeal found the defendant acted with either express or
implied malice, not from derivative liability.”
We agree with Mora’s observation that we did not expressly
state in the Opinion that Mora was not convicted for murder
based on the natural and probable consequences theory or that
Mora acted with express or implied malice. That Mora acted
with express or implied malice, however, is the only conclusion
consistent with the Opinion.
As previously explained, the natural and probable
consequences doctrine applies to accomplice liability, not to that
of a direct perpetrator. Here, the Opinion forecloses a conviction
based on the natural and probable consequences doctrine because
we concluded Mora was not an aider and abettor. First, the
Opinion concludes Mora directly participated in the aggravated
mayhem. The same facts underlie both the aggravated mayhem
and the second degree murder, as the sentencing court recognized
when it stayed Mora’s sentence on aggravated mayhem.
Additionally, in rejecting application of Ireland’s merger doctrine,
the Opinion also concludes that Mora was “not an aider and
abettor. His liability is direct, not derivative.” (Escobar, supra,
B087052, at p. 30.) Mora’s direct liability is further
demonstrated by the jury verdict because the jury concluded that
Mora personally used a weapon in committing both the
aggravated mayhem and the second degree murder. Although
this court ultimately reversed the personal use enhancement
because hands, fists and feet are not deadly or dangerous
weapons,9 this basis for our reversal of the enhancement does not

9Section 12022, subdivision (b)(1) provides: “A person who
personally uses a deadly or dangerous weapon in the commission

16
alter the jury’s finding regarding Mora’s personal participation in
the aggravated mayhem and second degree murder. Mora offered
no additional facts at the section 1170.95 subdivision (d)(3)
hearing and, on appeal, offers no theory that would support the
conclusion that he did not directly participate in the acts
constituting the second degree murder, albeit with his fellow
gang members.
The Opinion and the prosecutor’s submission of Mora’s
parole hearing testimony at the section 1170.95,
subdivision (d)(3) hearing are consistent with only one
conclusion—that Mora acted with implied malice. The
undisputed facts demonstrate that Mora engaged in conduct that
endangered the life of Rios and had knowledge that his conduct
endangered Rios’s life and that he acted with conscious disregard
for Rios’s life. (People v. Soto, supra, 4 Cal.5th at p. 974
[describing test for implied malice].) Mora returned to the site
where he saw Rios with additional Playboy gang members, led
the beating of Rios, and dragged Rios to the area where one of
Mora’s fellow gang members lit Rios on fire using gasoline and a
lighter from Mora’s car. At his hearing before the Parole Board,
Mora reiterated that he “didn’t care about . . . [Rios’s] life . . . .”
The evidence supports only the conclusion that Mora was aware
of the risk of death to Rios and acted in conscious disregard of
that risk.
Mora’s own testimony confirms that he acted, at a
minimum, with implied malice. At trial, Mora testified that he

of a felony or attempted felony shall be punished by an additional
and consecutive term of imprisonment in the state prison for one
year, unless use of a deadly or dangerous weapon is an element of
that offense.”

17
knew transporting Rios to Playboy territory would create danger
for Rios. Mora admitted he used a ruse to lure Rios to Playboy
territory. Additionally, Mora knew that rival gang members
frequently shoot at each other and that the Playboys and 18th
Street were rival gangs and had killed each other for 10 years.
Thus, Mora knew he was placing Rios’s life in peril when he lured
Rios to Playboy territory. Even if Mora did not anticipate the
method of death (burning Rios alive), he acted with conscious
disregard when he brought Rios to Playboy territory, and
initiated a massive gang beating, while knowing that rival gang
members routinely kill each other.
Assuming arguendo that the trial court misunderstood the
Opinion, Mora demonstrates no prejudice under either a Watson
or Chapman standard.10 Mora did not testify at the
section 1170.95, subdivision (d)(3) hearing. Mora identifies
no evidence supporting the conclusion that he did not act with
implied malice sufficient to support a conviction under current
law. In short, Mora identifies no theory under which he is
eligible for resentencing.
The authority Mora cites for the proposition that the case
has to be remanded to the trial court is inapposite. In Offley,
supra, 48 Cal.App.5th at pp. 592–594, we held the trial court
misunderstood the record of conviction when it concluded as a
matter of law, and without appointment of counsel, that the
defendant’s petition did not demonstrate defendant came within
the provisions of section 1170.95, and therefore, that defendant
was entitled to appointment counsel as to whether defendant

10 People v. Watson (1956) 46 Cal.2d 818; Chapman v.
California (1967) 386 U.S. 18.

18
had made a prima facie case of entitlement for relief. (Id. at
pp. 596–600.) In contrast to Offley, the trial court here did not
misunderstand our Opinion, did appoint counsel, and held a
hearing on Mora’s petition.
Mora also cites In re Cortez (1971) 6 Cal.3d 78, 86, in which
the court denied a petitioner probation based upon an erroneous
legal basis and the court held that the petitioner was entitled to a
new probation hearing. Cortez does not assist Mora because, in
Cortez, the petitioner was “in fact eligible for probation.” (Ibid.)
Here, Mora identifies no theory supported by the record that he
was in fact eligible for resentencing under section 1170.95.

C. Assuming the Trial Court Applied the Wrong
Standard of Proof in Evaluating the Evidence, Mora
Demonstrates No Prejudice
Mora argues this court must reverse the trial court’s denial
of his petition because the trial court applied the wrong standard
of proof at the section 1170.95, subdivision (d) hearing.
According to Mora, “the superior court erred by not acting as an
independent factfinder and making its own independent
determination as to whether appellant is guilty of second degree
murder under current law based upon the proof beyond a
reasonable doubt standard.” According to Mora, “[b]ecause the
record in this case demonstrates the superior court instead relied
upon an erroneous interpretation of this Court’s prior opinion on
direct appeal, as well as this Court’s prior sufficiency of the
evidence review to support the mayhem charge, the superior
court’s order denying appellant’s petition should be reversed and
this case remanded for a further hearing on the merits of
appellant’s petition under the correct standard.” Mora also
argues that this court should reject its holding in People v. Duke

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(2020) 55 Cal.App.5th 113, review granted January 13, 2021,
S265309 (Duke), and instead adopt the holding in People v.
Rodriguez (2020) 58 Cal.App.5th 227, review granted March 10,
2021, S266652 (Rodriguez).
As Mora points out, there is a split of authority on the
standard of proof a trial court should apply at a section 1170.95,
subdivision (d)(3) hearing. Duke announced that the trial court
must determine “beyond a reasonable doubt that the defendant
could still have been convicted of murder under the new law—in
other words, that a reasonable jury could find the defendant
guilty of murder with the requisite mental state for that degree of
murder.” (Supra, 55 Cal.App.5th at p. 123, review granted.)
Duke further held that this standard “is essentially identical to
the standard of substantial evidence, in which the reviewing
court asks ‘ “whether, on the entire record, a rational trier of
fact could find the defendant guilty beyond a reasonable
doubt. . . . [¶] . . .” [Citation.]’ [Citation.]” (Ibid.)
Other courts have rejected Duke’s holding that at a
section 1170.95, subdivision (d) hearing, the trial court applies a
standard akin to review for substantial evidence. For example,
our colleagues in Division Seven of this court reasoned in
Rodriguez that the trial court acts as an “independent fact finder
and determine[s] whether the evidence establishes a petitioner
would be guilty of murder under amended sections 188 and 189
and is thus ineligible for resentencing under section 1170.95,
subdivision (d)(3).” (Supra, 58 Cal.App.5th at pp. 243–244,
review granted; see also People v. Fortman (2021) 64 Cal.App.5th
217, 221, 226 [following Rodriguez]; People v. Duchine (2021)
60 Cal.App.5th 798, 813 [following Rodriguez]; Clements, supra,
60 Cal.App.5th at p. 615, review granted [“[T]he plain text of the

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statute requires the trial judge to sit as a fact finder, not as a
quasi-appellate court.”]; People v. Lopez (2020) 56 Cal.App.5th
936, 949, review granted Feb. 10, 2021, S265974 [disagreeing
with Duke].)
Even if Mora could demonstrate that the trial court applied
the wrong standard of proof—an issue we need not decide—he
demonstrates no prejudice under any standard from that
assumed error. Mora offers no theory under which a rationale
trier of fact considering all of the evidence presented at the
section 1170.95, subdivision (d)(3) hearing, including the Opinion,
could conclude that Mora was eligible for resentencing.

D. The Abstract of Judgment Must Be Amended
An unauthorized sentence may be corrected at any time.
(People v. Cabrera (2018) 21 Cal.App.5th 470, 477.) On appeal,
Mora demonstrates, and the Attorney General agrees, the
abstract of judgment fails to reflect correctly the Opinion’s
reversal of the section 12022 enhancements. We therefore order
the abstract be so amended.

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 DISPOSITION
The order denying William Alexander Mora’s petition for
resentencing is affirmed. The case is remanded to the trial court
to amend the abstract of judgment to delete any reference to the
Penal Code section 12022 enhancements. The trial court shall
forward a copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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