People v. Mendez CA2/7 ( 2021 )

Filed 6/29/21 P. v. Mendez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B304811
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA077944)
v.
PEDRO MENDEZ,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Sergio C. Tapia II, Judge. Affirmed.
Alan S. Yockelson, 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, Senior
Assistant Attorney General, Charles S. Lee and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
Pedro Mendez, convicted in 1993 of second degree murder
for shooting and killing his wife, petitioned pursuant to Penal
Code section 1170.951 to have his murder conviction vacated,
alleging he had been found guilty on a theory of felony murder or
under the natural and probable consequences doctrine and could
not now be convicted of first or second degree murder because of
amendments to the Penal Code limiting accomplice liability for
murder. After appointing counsel for Mendez and receiving
briefs from the prosecutor and Mendez’s lawyer, the superior
court denied the petition, finding Mendez had failed to make a
prima facie showing of eligibility for relief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Mendez’s Trial, Conviction and Appeal
Mendez shot and killed his wife in late May 1993 and then
fled to Baja California, where he was apprehended the next day.
Mendez made incriminating statements to local police before
being returned to Los Angeles. At trial Mendez did not deny he
had killed his wife, but contested the People’s version of events.
According to the prosecution’s evidence, Mendez shot his
wife during an argument concerning a jacket. After asking his
wife whether she believed he had the courage to shoot her,
Mendez placed the gun he had been holding against her head and
fired, killing her immediately. Testifying in his own defense,
Mendez insisted the gun had accidentally discharged during a
scuffle with his wife when they were arguing about whether he
would take the gun outside to sell. Mendez’s admission while in
custody in Mexicali that he had intentionally shot his wife was
introduced in the People’s rebuttal case.
1 Statutory references are to this code.
2
The jury convicted Mendez of second degree murder (§ 187,
subd. (a)) with a true finding he had personally used a firearm
when committing the offense (§ 12022.5, subd. (a)), and false
imprisonment by violence or menace of a second victim, Raul
Mendez (§§ 236, 237), a lesser included offense of the charged
crime of kidnapping (§ 209), with a true finding Mendez had been
armed during that offense (§ 12022, subd. (a)). The trial court
sentenced Mendez to an indeterminate state prison term of
20 years to life.
This court affirmed the judgment on appeal, rejecting
Mendez’s argument his statements to the Mexicali police were
inadmissible because they were the product of coercion and
obtained in violation of his right to counsel during a police
interrogation. (People v. Mendez (May 11, 1995, B081983)
[nonpub. opn.].)
2. Mendez’s Section 1170.95 Petition
Mendez, representing himself, filed a petition on
February 19, 2019 to vacate his murder conviction and for
resentencing under section 1170.95. The superior court
appointed counsel to represent Mendez. The People filed an
opposition to the petition, arguing Mendez was ineligible for
relief because he was his wife’s actual killer. The response in
opposition attached a copy of this court’s opinion affirming the
judgment, People v. Mendez, supra, B081983. Mendez’s counsel
filed a reply urging the court to set the matter for an evidentiary
hearing. The reply did not address the People’s argument
Mendez was ineligible for relief as his wife’s actual killer.
On January 22, 2020 the superior court denied the petition,
finding Mendez had failed to make a prima facie showing of his
eligibility for relief, as required by section 1170.95,
3
subdivision (c). The court explained, “The appellate opinion
affirming the petitioner’s conviction and sentence reflects that
the petitioner was the actual killer and was convicted of murder
on a theory of being the direct perpetrator and not on a theory of
felony murder of any degree, or a theory of natural and probable
consequences.”
Mendez filed a timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020)
10 Cal.5th 830, 842-843 (Gentile)) and significantly limited the
felony-murder exception to the malice requirement for murder.
(See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236,
review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1080.) It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, at p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
4
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts: “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 petitioner. The prosecutor
shall file and serve a response . . . and the petitioner may file and
serve a reply . . . . If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to
show cause.”
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction and “can dismiss any petition filed by an individual
who was not actually convicted of first or second degree murder.”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo),
review granted Mar. 18, 2020, S260493.) “The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189 (see § 1170.95, subd. (a)(3))—for example, a petitioner
who admitted being the actual killer as part of a guilty plea or
who was found to have personally and intentionally discharged a
firearm causing great bodily injury or death in a single victim
homicide within the meaning of section 12022.53,
subdivision (d).” (Ibid.)
5
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez, supra, 58 Cal.App.5th at p. 230,
review granted; People v. Lopez (2020) 56 Cal.App.5th 936, 949,
review granted Feb. 10, 2021, S265974; but see People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021,
S265309 [prosecutor must only prove a reasonable jury could find
the defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].) The prosecutor and petitioner may rely on the record
of conviction or offer new or additional evidence to meet their
respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. The Superior Court Properly Denied Mendez’s Petition
for Resentencing
Without actually disputing the superior court’s finding he
was convicted of murder as the actual killer of his wife, not under
the felony-murder rule or the natural and probable consequences
doctrine, Mendez urges us to reverse the order denying his
petition for resentencing on two grounds: (1) It was improper for
the superior court to rely on factual statements in the appellate
opinion affirming his conviction, which Mendez contends are
hearsay and necessarily biased in favor of the People; and (2) in
6
evaluating whether he had made the requisite prima facie
showing, the court was obligated to accept the truth of the factual
allegations in his petition. We have repeatedly rejected both
arguments, starting with Verdugo, supra, 44 Cal.App.5th 320,
review granted, and continuing through our recent opinion in
People v. Harris (2021) 60 Cal.App.5th 939 (Harris), review
granted April 28, 2021, S267802. Mendez advances no
persuasive reason for us to reconsider those prior decisions.
In Verdugo, supra, 44 Cal.App.5th at page 333, review
granted, we explained, “A court of appeal opinion, whether or not
published is part of the appellant’s record of conviction” and held
it was proper for the superior court to consider the information in
an opinion affirming the petitioner’s murder conviction on direct
appeal “in determining whether he had made a prima facie
showing of eligibility for relief under section 1170.95 or whether
he was ineligible for relief as a matter of law.” (Accord, People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1081; People v. Soto (2020)
51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020,
S263939; People v. Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7,
review granted; see People v. Woodell (1998) 17 Cal.4th 448, 455
[appellate court record, including the appellate opinion, properly
considered part of the record of conviction to establish the basis
for an out-of-state felony conviction and determine if it qualified
as a strike under California law].)
We expressly addressed the hearsay objection to use of the
prior opinion on appeal in Harris, supra, 60 Cal.App.5th 939,
review granted. Harris, like Mendez, relied on Gilmore v.
Superior Court (1991) 230 Cal.App.3d 416 to argue factual
statements in an appellate opinion are inadmissible hearsay and
not properly considered in determining eligibility for relief under
7
section 1170.95. Evaluating the evidence before the trial court on
a summary judgment motion, the court of appeal in Gilmore held
only that the description of events in an appellate opinion from a
criminal case is inadmissible hearsay in a civil action for
wrongful death. (Gilmore, at p. 418.) In contrast, we explained,
“In postconviction proceedings, however, statements from prior
appellate opinions are admissible as reliable hearsay even if they
would not be admissible at trial. (See, e.g., People v. Guilford
(2014) 228 Cal.App.4th 651, 660-661 [proper to rely on prior
appellate opinion when ruling on section 1170.126 resentencing
petition]; see also People v. Saelee (2018) 28 Cal.App.5th 744, 756
[reliable hearsay may be considered in deciding Proposition 64
petition to recall felony sentence for a marijuana conviction and
to resentence as a misdemeanor]; People v. Sledge (2017)
7 Cal.App.5th 1089, 1094-1095 [reliable hearsay may be
considered at eligibility hearing under Proposition 47].) The
rules of evidence governing section 1170.95 proceedings ‘should
be no different than those applied at other analogous
postconviction resentencing proceedings.’” (Harris, at pp. 953-
954; accord, People v Clements (2021) 60 Cal.App.5th 597, 612,
review granted Apr. 28, 2021, S267624 [“in posttrial proceedings,
statements from prior appellate opinions are admissible as
reliable hearsay even if they would not be admissible at trial”].)
As the court of appeal explained in People v. Williams
(2020) 57 Cal.App.5th 652, 661, “[A] ‘hearing under section
1170.95 is not a trial de novo on all the original charges.’
[Citation.] Rather, it is a postconviction proceeding ‘due to the
Legislature’s inclusion of section 1170.95 in Senate Bill
No. 1437 . . . , [as] an “act of lenity” [citation], allowing for the
retroactive application of the new law governing accomplice
8
liability for felony murder [citation], for defendants already
serving valid sentences for murder.’ [Citation.] In allowing for
the section 1170.95 postconviction proceeding, the Legislature
gave the superior court unfettered discretion to consider
‘evidence’ without any restriction at the subdivision (d)(3)
hearing to determine the petitioner’s eligibility for resentencing.”
Accordingly, the Williams court concluded, at the evidentiary
hearing to determine whether a petitioner was eligible to be
resentenced, the superior court was entitled to consider hearsay
evidence, including statements from the appellate opinion
affirming the petitioner’s murder conviction, “‘provided there is a
substantial basis for believing the hearsay information is
reliable.’” (Id. at p. 662.)
As for Mendez’s contention the superior court, when
assessing whether a petitioner has made the required prima facie
showing, must accept as true the allegations in the petition
notwithstanding information in the record of conviction directly
refuting those allegations,2 our colleagues in the Sixth Appellate
District succinctly explained the proper procedure: “[W]hen
assessing the prima facie showing, the trial court should assume
all facts stated in the section 1170.95 petition are true.
[Citation.] The trial court should not evaluate the credibility of
2 At the request of the Attorney General, we augmented the
record on appeal with the record from Mendez’s direct appeal,
People v. Mendez, supra, B081983. A review of that material
from Mendez’s trial confirms the jury was instructed regarding
premeditated and unpremeditated malice murder, as well as
voluntary and involuntary manslaughter as lesser included
offenses of the murder charge, and received no instructions
regarding the felony-murder rule or the natural and probable
consequences doctrine.
9
the petition’s assertions, but it need not credit factual assertions
that are untrue as a matter of law—for example, a petitioner’s
assertion that a particular conviction is eligible for relief where
the crime is not listed in subdivision (a) of section 1170.95 as
eligible for resentencing. Just as in habeas corpus, if the record
‘contain[s] facts refuting the allegations made in the petition . . .
the court is justified in making a credibility determination
adverse to the petitioner.’ [Citation.] However, this authority to
make determinations without conducting an evidentiary hearing
pursuant to section 1170.95, subd[ivision] (d) is limited to readily
ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
whether the petitioner showed reckless indifference to human life
in the commission of the crime).” (People v. Drayton, supra,
47 Cal.App.5th at p. 980; see Verdugo, supra, 44 Cal.App.5th at
pp. 329-330, review granted.)
Among the readily ascertainable facts properly considered
by the superior court is the jury’s true finding that Mendez had
personally used a firearm when committing second degree
murder—that is, he was his wife’s actual killer. That irrefutable
fact is confirmed by our opinion affirming his murder conviction,
also properly considered by the superior court, which did not
merely recite the evidence supporting the jury’s guilty verdict but
also summarized Mendez’s testimony in which he admitted he
had shot his wife, although he claimed it had been unintentional.
Accordingly, the superior court properly disregarded the
counterfactual allegations in Mendez’s petition. As the court
ruled, Mendez is ineligible for relief under section 1170.95 as a
matter of law.
10
DISPOSITION
The postjudgment order denying Mendez’s petition under
section 1170.95 is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
11