People v. Mendoza CA6 ( 2022 )

Filed 12/5/22 P. v. Mendoza CA6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047430
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 159891)
v.
ARTURO MENDOZA,
Defendant and Appellant.
Defendant Arturo Mendoza was convicted by a jury in 1993 of first degree murder
(Pen. Code, §§ 187, subd. (a), 189, subd. (a)),1 attempted robbery (§§ 664/211, 212.5,
subd. (a)), and first degree burglary (§§ 459, 460, subd. (a)), and the jury found true the
felony-murder special circumstance allegations that the murder was committed during
an attempted robbery and a burglary (former § 190.2, subd. (a)(17)(i), (vii))2 and the
allegation that defendant personally used a firearm during the commission of the offenses
(§ 12022.5, subd. (a)). It was undisputed that defendant was not the actual killer;
defendant was prosecuted as an aider and abettor to the murder. In finding the felony-
murder special circumstance allegations true, the jury determined that defendant was a
major participant in the underlying felonies who acted with reckless indifference to
1 All further statutory references are to the Penal Code
2 Currently section 190.2, subdivision (a)(17)(A), (G).
human life. The superior court sentenced defendant to life without the possibility of
parole consecutive to four years for the firearm enhancement. This court affirmed the
judgment in 1995.
In 2019, defendant filed a petition for resentencing pursuant to former
section 1170.95 (now § 1172.6). (Stats. 2018, ch. 1015, § 4.) Former section 1170.95,
like section 1172.6, allowed individuals convicted of felony murder or murder under the
natural and probable consequences doctrine to petition the superior court to vacate the
conviction under recent changes to the law that limited the scope of the felony murder
rule to individuals who were major participants in the underlying felony who acted with
reckless indifference to human life, and eliminated the natural and probable consequences
theory of liability for murder. After briefing and argument by the parties, the superior
court denied the petition, determining that the jury’s special circumstance findings barred
entitlement to relief.
Defendant challenged the denial of his petition. He contended that the felony-
murder special circumstance findings (§ 190.2, subd. (a)(17)) that were made by the jury
in 1993, before the California Supreme Court’s decisions in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which
construed the felony-murder special circumstance statute, do not preclude him from
making a prima facie showing of eligibility for relief under former section 1170.95. We
reversed the superior court’s order, and the California Supreme Court granted review and
held this case pending its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong).
After it decided Strong, it remanded this case for reconsideration in light of Strong. We
conclude that Strong requires us to reverse the court’s order and remand with directions
to issue an order to show cause.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background3
On January 3, 1992, defendant, codefendant Jesus Antonio Mandujano, and a man
named “Arellano” forced their way into Sacramento Benitez’s home, where he lived with
several family members, while one or more individuals waited outside. All three
intruders had handguns. Benitez ran into his bedroom, with Mandujano and perhaps
Arellano in pursuit, and attempted to close the door. Mandujano fired one shot through
the bedroom door, killing Benitez. The three intruders fled.
Defendant and three others had planned to commit a robbery at Benitez’s home.
Defendant and his cohorts had gone to the house on an earlier occasion to determine
whether it was the right home and how many people were there. Defendant had asked for
directions and a glass of water.
When they returned to the home, defendant actively helped Mandujano push the
front door open while Benitez’s sister resisted. Defendant then stood inside the door,
inferably using his pistol in an attempt to neutralize Benitez’s sister, while Mandujano
pursued Benitez down the hallway.
Benitez’s sister testified that after defendant entered the home, “he stayed over to
his side by the doorway.” At some point she saw that defend ant had “something white”
that he pointed at her ribcage, “but [she] never knew what it was.” Benitez’s sister
explained that “ever since that other man was there down there with my brother I had all
my attention in that direction and I wasn’t paying attention to this other.” On cross-
examination, she stated that she “couldn’t say if it was a gun or a knife” that defendant
held in his hand.
These facts are based on this court’s opinion affirming the judgment in case
3
No. H012250. The opinion was an exhibit to the district attorney’s opposition to
defendant’s former section 1170.95 petition.
3
Defendant testified that a man named “Jicamo” had given him a gun, and that he
had the gun with him when he entered the home the second time.4
B. Procedural History
1. Trial Proceedings
Defendant was charged with first degree murder with felony-murder special
circumstance allegations that the murder was committed during an attempted robbery and
a burglary. Defendant was also charged with attempted robbery and first degree
burglary, and it was alleged that defendant personally used a firearm during the
commission of the offenses.
Defendant was tried in 1993. As relevant here, the jury was instructed on aider
and abettor liability with CALJIC No. 8.27 for first degree felony murder and with
CALJIC No. 3.02 on the natural and probable consequences doctrine. Regarding the
felony-murder special circumstance allegations, the jury was instructed, “If you find that
a defendant was not the actual killer of a human being, you cannot find the special
circumstance to be true as to that defendant unless you are satisfied beyond a reasonable
doubt that such defendant with reckless indifference to human life and as a major
participant, aided, abetted, or assisted in the commission of the crime of attempted
robbery or burglary which resulted in the death of a human being.” At defendant’s
request, the jury was further instructed, “For you to find that defendant . . . acted with
reckless indifference to human life you must be satisfied beyond a reasonable doubt that
he actually subjectively appreciated the life threatening risk created by his conduct and
acted with conscious disregard for human life.”
The jury found defendant guilty as charged and found the special circumstance
and firearm allegations true. The superior court sentenced defendant to life without the
4 There is no additional information regarding defendant’s testimony in this
court’s opinion in case No. H012250.
4
possibility of parole consecutive to four years for the firearm enhancement, imposing and
staying sentences on the remaining counts.
2. Direct Appeal
This court affirmed the judgment in 1995. Among other issues, this court
determined that the trial court had a sua sponte duty to instruct the jury that “ ‘reckless
indifference to human life,’ ” as used in the felony-murder special circumstance statute,
“ ‘requires that a defendant who is an aider and abettor, and not the actual killer,
knowingly engage in criminal activities known to carry a grave risk of death,’ ” but that
the court’s instruction that “the aider and abettor had to personally appreciate that his
actions constituted a threat to human life but nevertheless acted with conscious disregard
for human life” did not prejudice defendant based on the evidence in the record. (Italics
added.) This court also determined that defendant’s sentence did not constitute cruel
and/or unusual punishment because the record showed that defendant was “ ‘an active
and major participant in the robbery’ ” and that “[i]t is both rational and fair to infer that
[defendant] understood the significance of his role as he played it.”
3. Habeas Proceedings in the Superior Court and this Court
In March 2016, defendant filed a petition for writ of habeas corpus in the superior
court contending that there was insufficient evidence to support the felony-murder
special circumstance findings under Banks. The superior court denied the petition,
distinguishing Banks and determining that “Banks has no effect on [defendant’s] case.”
Implicitly concluding that there was sufficient evidence in the record that defendant was
a major participant in the underlying felonies, the court found that defendant “scoped out
the house, assisted in pushing in the front door with force to gain entry, and held another
person at gunpoint inside the house when the victim was shot and killed down the
hallway.” The court also stated that this court had “concluded [in the direct appeal] that
[defendant] was an active and major participant in the robbery.”
5
The superior court also distinguished this case from Banks “as to the showing of
‘reckless indifference.’ ” The court found that defendant “was at the scene of the
robbery, used force in opening the door while the victims were attempting to bar entry,
entered the home armed with a weapon, and used the weapon against one of the victims.
[Defendant] unlike the [getaway] driver in Banks clearly knew deadly force was being
used.” The superior court also stated that this court had determined in the direct appeal
that the jury could find that defendant “had the requisite subjective awareness and
understood the risk involved.”
In May 2016, defendant filed a petition for writ of habeas corpus in this court
contending that there was insufficient evidence to support the special circumstance
findings under Banks. This court summarily denied the petition on June 3, 2016.
In April 2018, defendant filed a petition for writ of habeas corpus in the superior
court contending that under the California Supreme Court’s decision in People v. Chiu
(2014) 59 Cal.4th 155 (Chiu), his first degree murder conviction under the natural and
probable consequences doctrine was invalid. The superior court issued an order to show
cause “[b]ecause [although] the special circumstances verdicts demonstrate that the jury
made the findings which would bring this case within the felony-murder rule,” rendering
any Chiu error harmless, such a determination “presupposes the validity of those special
circumstances findings” under Banks and Clark. Approximately one month after issuing
the order to show cause, the superior court denied the petition, stating that it had been
unaware of the court’s earlier determination of defendant’s petition under Banks, which it
found precluded its review of the same issue, and determining that any Chiu error was
harmless.
In July 2018, defendant filed a petition for writ of habeas corpus in this court,
raising the same claim under Chiu. This court summarily denied the petition.
6
4. Former Section 1170.95 Proceedings
In 2019, defendant filed a former section 1170.95 petition in the superior court.
The petition consisted of a three-page preprinted form, two pages of which were a
declaration defendant signed under penalty of perjury. Among other boxes, defendant
checked boxes on the form declaring that “[a] complaint, information, or indictment
was filed against [him] that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine”; “[a]t trial,
[he] was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or
the natural and probable consequences doctrine”; and he “could not now be convicted
of 1st or 2nd degree murder because of changes made to . . . § § 188 and 189, effective
January 1, 2019.” In addition, defendant checked boxes declaring that he “was not the
actual killer”; he “did not, with the intent to kill, aid, abet, counsel, command, 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 . . . did not act with reckless
indifference to human life during the course of the crime or felony.” Defendant
requested counsel.
The superior court appointed counsel to represent defendant. The district attorney
filed two oppositions to the petition, consisting of a constitutional challenge to former
section 1170.95 and an opposition to the petition’s merits. On the petition’s merits, the
district attorney conceded that defendant was not Benitez’s actual killer, but argued that
defendant was ineligible for relief because the jury determined that defendant was a
major participant who acted with reckless indifference to human life when it found the
special circumstance allegations true, a finding that was not disturbed on appeal or in
defendant’s habeas cases. The district attorney also asserted that defendant’s “bare bones
declaration,” “with no independent objective corroboration,” was insufficient to establish
a prima facie claim for relief; defendant was estopped from challenging the special
circumstance findings; and defendant could be convicted of murder under current law.
7
Defendant replied to the district attorney’s oppositions. On the petition’s
merits, defendant contended that he had met the prima facie requirements of former
section 1170.95 by filing a declaration stating eligibility for relief under
subdivision (a)(3); he was not estopped from obtaining relief because the issues raised
in his petition were not the same as those previously litigated; and he could not be
convicted of murder under current law.
After another round of briefing by both parties, defendant filed a supplemental
petition for resentencing. Defendant stated that he was convicted of first degree murder
under the theory that he aided and abetted an attempted robbery and burglary and that
the “only instructions for the murder charge as it related to [defendant] was aiding and
abetting under the natural and probable consequence rule.” Defendant asserted that the
evidence did not show that he “committed any murder . . . , intended any murder . . . , or
acted with reckless indifference to human life . . . , as would be required for aiding and
abetting murder and for a conviction” under current law. Defendant stated that the jury
did not find when determining his guilt of murder, as opposed to the special circumstance
allegations, that he was a major participant in the attempted robbery or burglary and acted
with reckless indifference to human life. Defendant asked the superior court to issue an
order to show cause.
The superior court denied the petition, determining that it was not possible for
defendant to show entitlement to relief because a jury found the felony-murder special
circumstance allegations true beyond a reasonable doubt, the judgment was affirmed on
appeal, and a detailed Banks analysis was performed in the habeas case.
II. DISCUSSION
This court originally reversed the trial court’s ruling, and the California Supreme
Court granted review and held this case pending its decision in Strong, supra, 13 Cal.5th
698. After the California Supreme Court issued Strong, it remanded this case for
reconsideration in light of Strong. Defendant filed a supplemental brief arguing that
8
Strong requires reversal of the trial court’s order. The Attorney General did not file a
supplemental response brief. We conclude that the trial court’s order must be reversed.
In Strong, the California Supreme Court held that a felony-murder special
circumstance finding made prior to its decisions in Banks and Clark does not
categorically preclude a defendant from making a prima facie showing of eligibility for
relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 720.) “Section 1172.6
offers resentencing for petitioners who have not been determined beyond a reasonable
doubt to have the degree of culpability now required for a murder, attempted murder, or
manslaughter conviction. Neither the jury’s pre-Banks and Clark findings nor a court’s
later sufficiency of the evidence review amounts to the determination section 1172.6
requires, and neither set of findings supplies a basis to reject an otherwise adequate prima
facie showing and deny issuance of an order to show cause.” (Ibid.)
In this case, the jury’s 1993 felony-murder special circumstance findings occurred
before the California Supreme Court’s rulings in Banks and Clark in 2015 and 2016.
Hence, the 1993 findings did not preclude defendant from making a prima facie showing
in support of a section 1172.6 petition. (Strong, supra, 13 Cal.5th at p. 721.) Nor is
defendant precluded from making a prima facie showing by the rulings on his habeas
petitions. (Id. at p. 720.) Consequently, the trial court erred in denying defendant’s
petition on the basis of the 1993 felony-murder special circumstance findings.
III. DISPOSITION
The trial court’s order is reversed, and the matter is remanded with directions to
issue an order to show cause and conduct further proceedings in accordance with Penal
Code section 1172.6.
9
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
DANNER, J.
WILSON, J.
People v. Mendoza
H047430