People v. Mijares

Filed 5/5/26
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION EIGHT

 THE PEOPLE,                         B338531

         Plaintiff and Respondent,   Los Angeles County
                                     Super. Ct. No. BA482493
         v.

 MARK ANTHONY MIJARES,

         Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard S. Kemalyan, Judge. Conviction
affirmed and remanded with instructions.
      Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
                     ____________________
      Mark Mijares’s methamphetamine addiction led to
delusions and to his fatal attack on an infirm stranger named
Juan Cordova. Cordova lingered in the hospital before dying.
The jury convicted Mijares of murder. Mijares’s main argument
on appeal is that the trial court erred by failing to instruct on
attempted murder. Mijares’s claim is that he did not kill the
victim because Cordova already was in such bad shape that, in
the hospital, he actually died from his preexisting heart and liver
disease. We affirm because Mijares’s attack caused Cordova’s
death. We also reject Mijares’s other claims, except we correct
his sentencing credits as the parties recommend.
                                   I
      Mijares’s long-term addiction had deepened into psychosis.
His diagnosis was “substance-induced psychotic disorder.” By his
mid-forties, Mijares had trouble distinguishing reality from his
hallucinations. Before killing Cordova, Mijares took
methamphetamine for a week straight and, for that week, he did
not sleep. In a delusional state, Mijares went to a health clinic
parking lot on October 26, 2019. There, for some reason he
fixated on Cordova, who was elderly, homeless, and in poor
health. A witness said Cordova was “helpless.”
      Mijares began by shouting at Cordova, “I’m going to take
you out.” Then Mijares pummeled Cordova with a brick, punched
him, and kicked him. Next Mijares covered Cordova’s head with
a plastic bag. Cordova made choking sounds. Finally Mijares
stabbed Cordova in the neck. The attack broke Cordova’s face
bones.
      Mijares’s attorney described the video of the attack to the
jury. “There are times in that video where it almost looks as
awful as it is to watch. There are times when it looks like




                                2
[Mijares is] believing he is at a baseball game. There’s a portion
in the video before he throws the rock where he is looking around.
He puts the rock behind his back, and he is almost taking, like, a
pitcher’s wind up and throws it.”
       Cordova did not fight back.
       In the hospital, Cordova expired after about a month, on
November 28, 2019. He never regained consciousness.
       Cordova had grave liver and heart issues. The coroner
testified as follows:
       “Q: Assuming Mr. Cordova did not sustain the blunt force
trauma or what you’ve described as the knife wounds, do you
believe you have the background, training, and experience to
offer an opinion as to what his life expectancy would have been
with the liver and heart issues?”
       …
       “A: My opinion is, your honor, that he – his condition was
very, very bad. He would die very soon.
       “Q: Can you quantify?
       “A: Less than three or four years he would be dead due to
the extent of both diseases.
       “Q: And the basis for your opinion?
       “A: The basis of the examination of the body and the extent
of both diseases.
       “Q: So is it fair for us to take from what you just said that
absent these wounds he had a medical likelihood of surviving at
least another three or four years?
       “A: Yes, sir.”
       The coroner testified the cause of Cordova’s death was
blunt force trauma as well as “the injury by knife to his neck.” It
was “the accumulation of those injuries.”




                                 3
       The court instructed jurors that, to find Mijares guilty of
first degree murder, they had to find (with our emphasis) that he
“committed an act that caused the death of another person. . . .
There may be more than one cause of death. An act causes death
only if it is a substantial factor in causing the death. A
substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that causes the
death.”
       The jury convicted Mijares of first degree murder.
                                    II
       Mijares has four arguments on appeal. Three lack merit,
but we agree with the prosecution that Mijares’s point about
presentence custody credits is valid.
                                    A
       Mijares’s primary argument is that the trial court had a
duty on its own motion to instruct the jury on attempted murder.
This duty would arise if an element of the murder charge were
missing and substantial evidence supported the lesser included
offense of attempted murder. (See People v. Landry (2016) 2
Cal.5th 52, 96.) We independently review questions of
instructional error. The trial court has a duty to instruct on all
theories of a lesser included offense that find substantial support
in the evidence. (People v. Breverman (1998) 19 Cal.4th 142,
162.)
       Mijares contends a reasonable juror could have “found room
for reasonable doubt that [Mijares] was the proximate cause of
Cordova’s death.” The italics are ours. Mijares’s logic is that, if
the jury concluded he did not kill Cordova, then the appropriate
lesser included offense would have been attempted murder.
Mijares thus argues that, by failing to instruct on attempted




                                4
murder, the court erred. Mijares does not challenge the wording
of instructions the court did give.
       Given Mijares’s invocation of proximate cause, we
summarize pertinent law to pinpoint his precise challenge.
       Principles of causation apply to crimes as well as torts.
Causation is an essential element of murder. Causation has two
components. One is cause in fact, which is also called actual,
direct, or but-for causation. The second component focuses on
public policy considerations and imposes an additional limitation
related to the degree of connection between the conduct and the
injury. (People v. Carney (2023) 14 Cal.5th 1130, 1137–1138
(Carney).)
       We treat these two components of causation in turn.
       First, “but-for causation” is fundamental but sweeping. But
for Adam and Eve, there would be no crime at all. (Cf. Prosser,
Palsgraf Revisited (1953) 52 Mich. L. Rev. 1, 24 (Prosser) [“in a
very real sense the consequences of an act go forward to eternity,
and back to the beginning of the world”].)
       When there is evidence of concurrent causes, the
defendant’s act must have been a substantial factor contributing
to the result and not simply an insignificant or merely theoretical
factor. (Carney, supra, 14 Cal.5th at p. 1138.) A jury need not
determine which of the concurrent causes was the principal or
primary cause of death so long as it finds the death would not
have occurred when it did without the criminal act. (Id. at p.
1139.)
       Second, “proximate cause” employs public policy
considerations to draw the outer boundary of liability for a tort or
crime. This limitation is a judge-made boundary administered on
a case-by-case basis.




                                 5
       The classic illustration of the proximate cause limitation
was in a tort case: the Cardozo opinion in Palsgraf v. Long
Island Railroad Co. (1928) 248 N.Y. 339, 162 N.E. 99 (Palsgraf).
Helen Palsgraf was on a train platform when a man carrying an
innocuous-looking package rushed to get on a moving train.
Railroad guards helped him board, but their efforts dislodged his
package. Surprisingly, the package contained fireworks, which
exploded on the track. “The shock of the explosion threw down
some scales at the other end of the platform, many feet away.
The scales struck the plaintiff, causing injuries for which she
sues.” (Id. at p. 341.) Justice Cardozo authored the landmark
opinion holding the actions of the railroad workers were not the
proximate cause of Palsgraf’s injuries. (Id. at p. 346.)
       The Palsgraf holding is best explained, Dean Prosser
submitted, by the fact that “what did happen to [Helen Palsgraf]
is too preposterous. Her connection with the defendant’s guards
and the package is too tenuous; in the old language, she is too
remote. The combination of events and circumstances necessary
to injure her is too improbable, too fantastic . . . . [L]iability must
stop somewhere short of the freakish and the fantastic.” (Prosser,
supra, at p. 27.)
       The same principle applies in criminal law. Our Supreme
Court held that a defendant’s act of shooting a member of
another gang did not proximately cause that member’s fellow
gang members to kill a member of the defendant’s gang. (People
v. Cervantes (2001) 26 Cal.4th 860, 872–874.) This intervening
independent cause was unforeseeable because it was “an
extraordinary and abnormal occurrence.” (Id. at p. 871.) In so
ruling, the high court reached its result as “a matter of law.” (Id.
at p. 874.)




                                  6
       Our high court reached the opposite result in People v.
Lewis (1899) 124 Cal. 551, 554, where the defendant shot the
victim in the intestines, dooming him to a painful and inevitable
death that, “within a very few minutes,” the victim hastened by
suicide. The court upheld Lewis’s conviction because the shooting
was the proximate cause of the victim’s death. (Id. at pp. 554–
559.) There was nothing fantastic about death from a gunshot to
the abdomen.
       Similarly, if an assailant beats a man and leaves him
unconscious in a road at night where a car accidentally hits and
kills him, the assailant is the proximate cause of death. (People
v. Fowler (1918) 178 Cal. 657, 668–670 (Fowler), disapproved on
another ground in People v. Thomas (1945) 25 Cal.2d 880, 901.)
Leaving your prone victim in a traffic lane invites more disaster.
       We now apply this law to the case at hand. We begin by
recounting Mijares’s argument.
       Mijares contends there was substantial evidence he
committed only attempted murder: a jury reasonably could have
concluded he attempted to murder Cordova, but failed because
his attack was not the proximate cause of Cordova’s death.
Mijares claims the jury reasonably could have found he did not
actually kill Cordova. Rather, heart and liver disease could have
been the sole causes of the fatality. Mijares concedes there was
substantial evidence he caused Cordova’s death. His claim is,
however, that there also was competing substantial evidence he
did not cause the death, and that substantial evidence is enough
to have required an instruction on attempted murder.
       In this quest, Mijares highlights six facts from the coroner’s
testimony:




                                 7
       1. On account of heart disease and cirrhosis of the liver,
          Cordova’s condition was “very, very bad.”
       2. Cordova “would die very soon” from his heart condition
          and his liver disease.
       3. Hospital doctors repaired the cut artery on Cordova’s
          neck.
       4. For a time, Cordova was in stable but critical condition.
       5. Cordova lasted slightly over a month after Mijares’s
          attack.
       6. Cordova “would have [had] a better chance of survival”
          had he been a healthy person.
       Mijares suggests his attack was neither a but-for cause nor
a proximate cause of Cordova’s death.
       Both suggestions fail.
       As a factual matter, no evidence negated Mijares’s attack
as a substantial factor in Cordova’s death. Cordova was seriously
ill before Mijares’s assault, but nothing proved or implied
Cordova’s preexisting afflictions would cause death in a month.
The coroner testified the cause of Cordova’s death was the
wounds from Mijares. The evidence of but-for causation
uniformly pointed to Mijares as the author of death.
       As a matter of law, Mijares also was the proximate cause of
Cordova’s death. Many in the population are physically infirm.
Their skulls may be as thin as an eggshell. Even so, attackers
take their victims as they find them. (People v. Garcia (2022) 82
Cal.App.5th 956, 964 [unless preexisting physical infirmities
were the only substantial cause of death, these infirmities do not
destroy a defendant’s criminal responsibility].)
       In sum, no evidence or consideration of public policy
mandated an instruction on attempted murder, because there




                                 8
was no question about what killed Cordova. Mijares’s attack was
the but for cause of Cordova’s death. As for public policy
considerations behind the proximate cause doctrine, Cordova’s
demise was hardly freakish or fantastic. Mijares shouted “I’m
going to take you out.” Then he did.
                                  B
       Mijares’s second argument concerns the prosecutor’s
closing argument, which Mijares contends misstated the law.
The “apt” description of this type of argument is that the
prosecutor committed “prosecutorial error.” (People v. Hill (1998)
17 Cal.4th 800, 823, fn. 1.)
       Mijares emphasizes the following language in this portion
of the prosecutor’s closing:
       “The big difference here is whether or not he intended to
kill someone. So the real difference in murder – first-degree
murder and second-degree murder is that intention to kill.
       “Think of a situation where an individual has a gun. He is
going after a specific person because that person wronged him,
and he goes and ends up killing that particular person. He has a
reason to. He makes that decision to kill the person, and you can
show that he planned it out in some way, or based on his actions,
he made that decision that he was intending to kill that
person.
       “Now you have a situation of second-degree where you
could have a person who has a gun, not trying to kill a particular
person, but there’s a group of people – 30 people. He shoots into
the crowd. He’s not trying to kill that one person, but he is doing
an act that’s inherently dangerous to human life. So it wouldn’t
fit first-degree murder because he is not trying to kill one
particular person. He is just doing something in which all of




                                 9
these people are put in incredible danger, and that’s the major
distinction we have between first-degree murder and second-
degree murder.”
       Mijares contends this argument was error because the
difference between first and second degree murder is
premeditation and deliberation, not the intent to kill.
       This closing argument was not prosecutorial error. “Intent
to kill” is a common but ambiguous phrase because there are four
levels of intent: purpose, knowledge, recklessness, and
negligence. (See People v. Canales (2024) 106 Cal.App.5th 1230,
1255–1256, 1261–1262.) Phrases like “criminal intent,” “state of
mind,” “mens rea,” and “mental state” are imprecise
generalizations. They cover many levels of culpability. The exact
degree of blameworthiness requires a more particular
description, which is what the prosecutor proceeded to offer.
       The prosecutor properly explained the concept of a
purposive killing in common-sense terms. He gave his example of
an individual with a gun “going after a specific person because
that person wronged him, and he goes and ends up killing that
particular person. He has a reason to. He makes that decision to
kill the person, and you can show that he planned it out . . . .”
       That indeed would be first-degree murder, because the
killer had the premeditated purpose of killing. (See People v.
Pearson (2013) 56 Cal.4th 393, 443–444; CALCRIM No. 521.)
       The prosecutor also correctly explained second-degree
murder with his example of shooting into a crowd of 30 people,
“not trying to kill a particular person.” Such a shooting indeed
would be “inherently dangerous to human life.”
       A murder under these circumstances would be a textbook
example of reckless murder, which is murder in the second




                               10
degree. (E.g., People v. Clark (2016) 63 Cal.4th 522, 617 & fn. 73;
People v. Knoller (2007) 41 Cal.4th 139, 152, 158.)
       Mijares takes no issue with the court’s instructions on first
and second degree murder, which were CALCRIM Nos. 520 and
521.
       The prosecutor’s own remarks alerted jurors to the
imprecision in the term “intent to kill.” The prosecutor reiterated
CALCRIM Nos. 520 and 521 in his closing argument. He added,
“if you have any questions, you can always look at the
instructions.” In his opening attack on the prosecutor’s closing
argument, Mijares omits mention of these points.
       There was no prosecutorial error.
                                   C
       The prosecution did not oppose Mijares’s request that we
examine for an abuse of discretion the trial court’s in-camera
review of police records under Pitchess v. Superior Court (1974)
11 Cal.3d 531. We have done so and see no abuse of discretion.
                                   D
       All agree Mijares is entitled to 1,669 days of pretrial credit
rather than the 1,637 days the trial court awarded. The original
figure was the result of a simple miscalculation by counsel.
                          DISPOSITION
       We affirm the conviction and remand for the limited
purpose of correcting Mijares’s pretrial credits to 1,669 days.



                                            WILEY, Acting P.J.
We concur:

             VIRAMONTES, J.                 SCHERB, J.




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