People v. Mendez CA5 ( 2022 )

Filed 12/7/22 P. v. Mendez CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081193
Plaintiff and Respondent,
(Super. Ct. No. CF93485197)
v.
SCOTT ALLEN MITCHELL MENDEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric M.
Christoffersen, Lewis A. Martinez, Jennifer Oleska and Amanda D. Cary, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Smith, J. and Snauffer, J.
INTRODUCTION
Appellant Scott Allen Mitchell-Mendez appeals the trial court’s denial of his
petition for resentencing filed under former Penal Code section 1170.95.1 We previously
affirmed the court’s order in an unpublished opinion (People v. Mitchell-Mendez
(November 15, 2021, F081193 [nonpub. opn.]), concluding that Mitchell-Mendez was
ineligible for relief as a matter of law based upon the jury’s finding that the murder
occurred during the commission of a robbery, and that Mitchell-Mendez had acted as a
major participant in the robbery with reckless indifference to human life. (Pen. Code,2
§ 190.2, subd. (a)(17).)
Our Supreme Court granted review of Mitchell-Mendez’s case and transferred the
matter back to this court with directions to vacate our decision and to reconsider the
cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). In Strong, our
Supreme Court held that a pre-Banks/Clark3 felony-murder special circumstance finding
does not render a former section 1170.95 petitioner ineligible for relief as a matter of law.
(Strong, at p. 703.)
We invited the parties to submit supplemental briefing concerning the effect of
Strong on Mitchel-Mendez’s case. Mitchell-Mendez argued that Strong compels reversal
of the trial court’s order. The Attorney General agrees.
In conformity with our Supreme Court’s directive, we order our prior decision
vacated and for the reasons stated herein, we reverse the trial court’s order denying
Mitchell-Mendez’s petition for resentencing. On remand, the trial court is directed to
1 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
change in text (Stats. 2022, ch. 58, § 10). Mitchell-Mendez filed his petition prior to this
renumbering, and he therefore referred to the statute as section 1170.95 in his petition.
2 All undefined statutory citations are to the Penal Code unless otherwise indicated.
3 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th
522 (Clark).
2.
issue an order to show cause and to hold an evidentiary hearing on the petition (§ 1172.6,
subds. (c)-(d)).
PROCEDURAL HISTORY
On May 5, 1993, the Fresno County District Attorney filed an information
charging Mitchell-Mendez, Demetrius Dixon, Valunt Montgomery with first degree
murder (§ 187) and second degree robbery (§§ 211, former 212.5, subd. (b).) It was
further alleged that the murder was committed during the course of a robbery (§ 190.2,
subd. (a)(17)(A)), and that Mitchell-Mendez personally used a knife in the commission of
the murder and the robbery.
On October 14, 1993, a jury found Mitchell-Mendez guilty on counts. The jury
also found true the special circumstance (§ 190.2, subd. (a)(17)(A)), but found not true
the enhancement alleging Mitchell-Mendez had personally used a knife in the
commission of the offenses.
On November 19, 1993, Mitchell-Mendez was sentenced to an indeterminate term
of life without the possibility of parole.
On April 10, 1996, this court affirmed Mitchell-Mendez’s judgment of conviction
following his direct appeal in People v. Mendez et. al. (Apr. 10, 1996, F020673 [unpub.
opn.]).
On January 1, 2019, Senate Bill No. 1437 became effective. (Stats. 2018, ch.
1015.) That measure amended sections 188 and 189 eliminating the felony murder rule
and the natural and probable consequences doctrine as these theories of vicarious liability
relate to murder. (Stats. 2018, ch. 1015, §§ 2, 3.)
On January 25, 2019, Mitchell-Mendez filed a petition for resentencing under
former section 1170.95. His petition was denied for failing to include a signed
declaration.
On May 29, 2019, Mitchell-Mendez filed a renewed petition for resentencing.
3.
On March 17, 2020, the superior court issued a written order denying Mitchell-
Mendez’s petition. The superior court’s order observed that Mitchell-Mendez was
convicted of a special circumstance based on the fact that the murder occurred during the
commission of a robbery (§ 190.2, subd. (a)(17)). The jury’s true finding on the special
circumstance necessarily required the jury to find Mitchell-Mendez was a major
participant in the robbery and that he had acted with reckless indifference to human life.
On appeal, this court affirmed the special circumstance, finding substantial evidence in
support of the jury’s finding. (People v. Mendez et. al., supra, F020673, pp. 84-85.) The
superior court concluded the special circumstance finding excluded Mitchell-Mendez
from relief under former section 1170.95 as a matter of law.
On November 15, 2021, this court affirmed the trial court’s order denying
Mitchell-Mendez’s petition for resentencing. (People v. Mitchell-Mendez, supra,
F081193.)
On October 26, 2022, following a petition for review filed by Mitchell-Mendez,
our Supreme Court granted review of Mitchell-Mendez’s case and transferred the matter
back to this court with directions to vacate our prior decision and to reconsider the matter
in light of Strong.
FACTS
The following statement of facts are derived from this court’s unpublished opinion
in People v. Mendez et. al., supra, F020673. This factual summary is recited for the
limited purpose of providing context to Mitchell-Mendez’s criminal conviction:
On November 15, 1992, at approximately 2:37 a.m., Fresno Police Officer
Robinson responded to a report of a deceased person at an apartment complex on North
Hughes in Fresno. Jaime Irizarry was found lying face down, dead in the parking stall of
the apartment complex. His throat had been slit and he had a small puncture wound in
his back. Both of Irizarry’s wounds were consistent with having been inflicted from
behind by a left-handed person. Irizarry’s keys and his vehicle were missing.
4.
On November 23, 1992, Irizarry’s vehicle was found behind the residence of
Donna Lane, a woman with whom Mitchell-Mendez was acquainted. The vehicle had
been stripped, and the vehicle identification number had been destroyed.
On November 24, 1992, Irizarry’s chrome rims were found on Mitchell-Mendez’s
vehicle and Irizarry’s keys were found in Mitchell-Mendez’s bedroom. Mitchell-Mendez
was arrested. In a voluntary statement he made to police, he told Fresno Police Detective
Wells that he, Eric Beeks, Montgomery, and Dixon were driving around looking for a set
of car wheels to steal. Mitchell-Mendez began following Irizarry’s vehicle which he
thought had a nice set of wheels on it.
The group followed Irizarry back to his apartment complex, where they discussed
stealing Irizarry’s vehicle. According to Mitchell-Mendez, he and Beeks waited in the
car while Montgomery and Dixon walked toward the parking lot where Irizarry had
driven. The group planned to reconvene at Lane’s backyard, where they would strip
Irizarry’s vehicle.
Between 3:00 and 4:00 a.m., Mitchell-Mendez and Beeks arrived at the
prearranged location and found Irizarry’s car in the backyard, but Montgomery and
Dixon were not there. Mitchell-Mendez and Beeks drove to a house where Montgomery
and Dixon had been staying. They found Montgomery and Dixon there.
Mitchell-Mendez, Dixon, and Montgomery walked back to Lane’s house and
began stripping Irizarry’s vehicle. It was at this time that Mitchell-Mendez claimed he
learned someone had been killed. Mitchell-Mendez admitted he had previously claimed
responsibility for Irizarry’s murder, but denied killing him and denied having any
knowledge that someone would be killed.
On November 27th, Montgomery voluntarily came into the police department to
give a statement. Montgomery admitted that he and Dixon assisted Mitchell-Mendez in
taking some rims from a vehicle after the vehicle’s owner was killed. In a subsequent
5.
interview, Montgomery told Detective Wells he had witnessed the murder, and that
Mitchell-Mendez was responsible for it.
Montgomery claimed the group had planned to steal some rims, tie up the owner,
and drop the victim off somewhere in the country to “ ‘let him walk home.’ ” However,
after the group followed Irizarry’s car to the apartment complex, Beeks gave Mitchell-
Mendez a knife. When Montgomery caught up with Mitchell-Mendez, he saw Mitchell-
Mendez grab Irizarry from behind and place the knife to Irizarry’s neck. Montgomery
heard Irizarry say, “ ‘ “Don’t kill me, don’t kill me.” ’ ” Mitchell-Mendez forced Irizarry
to lie face down on the ground. Montgomery thought Mitchell-Mendez was going to tie
Irizzary up with a rope.
Mitchell-Mendez grabbed a handful of Irizarry’s hair, pulled his head back, and
then sliced Irizarry’s throat with his knife. He took a few steps before returning to
Irizarry and sticking his knife into Irizarry’s back “ ‘really hard.’ ”
When Detective Wells told Montgomery he did not think Montgomery was being
truthful, Montgomery claimed his story was true, except that it was Dixon who
committed the murder, not Mitchell-Melendez. Montgomery claimed that he and Dixon,
who had also come into the police department that day to give a statement, had arranged
to tell the same story because Mitchell-Mendez stated he would “ ‘ “take the wrap.” ’ ”
On December 8th, when Dixon gave a statement to police detectives in which he
claimed that Mitchell-Mendez had committed the murder. Dixon said that Mitchell-
Mendez ordered Irizarry out of the car at gunpoint, and as Irizarry was lying facedown on
the ground, Mitchell-Mendez lifted Irizarry’s head and used the knife to cut Irizarry’s
throat.
As all Mitchell-Mendez, Montgomery, and Dixon were individually interviewed
by Detective Wells, he noticed that Mitchell-Mendez and Montgomery were right-handed
and Dixon was left-handed.
6.
ANALYSIS
Mitchell-Mendez contends the trial court erroneously denied his petition for
resentencing under former section 1170.95 based upon the fact that the robbery-murder
special circumstance was found true more than 20 years prior to our Supreme Court’s
decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. The
Attorney General agrees, as do we.
In Strong, our Supreme Court held that where a petitioner’s case “was tried before
both Banks and Clark, the special circumstance findings do not preclude him from
making out a prima facie case for resentencing under section 1172.6.” (Strong, supra, 13
Cal.5th at p. 721.) Our Supreme Court reasoned that section 1172.6 requires the
petitioner to make a prima facie showing that he could not be convicted of murder under
the amended versions of sections 188 and 189, and “[a] pre-Banks and Clark special
circumstance finding does not negate that showing because the finding alone does not
establish that the petitioner is in a class of defendants who would still be viewed as liable
for murder under the current understanding of the major participant and reckless
indifference requirements.” (Strong, at pp. 717-718.) “This is true even if the trial
evidence would have been sufficient to support the findings under Banks and Clark.”
(Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001, 1008 [trial court
may not deny § 1172.6 petition at prima facie stage based on its own determination
defendant was major participant in felony and acted with reckless disregard for human
life].) Thus, “[n]either 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.” (Strong, at p. 720.)
Here, the jury’s true finding on the robbery-murder special circumstance occurred
in 1993, more than two decades before our Supreme Court’s decisions in Banks and
Clark. Strong makes clear that the jury’s finding on the special circumstance does not
7.
preclude Mitchell-Mendez from stating a prima facie case for relief. (Strong, supra, 13
Cal.5th at p. 721.)
Following Strong, we conclude that Mitchell-Mendez’s petition alleged the facts
necessary for relief under former section 1170.95, and the superior court erred by
summarily denying his petition based on the jury’s findings on the special circumstance
allegation. Accordingly, we will reverse the trial court’s order and remand the matter to
the court with directions to issue an order to show cause and to hold an evidentiary
hearing. (§ 1172.6, subds. (c), (d); Strong, supra, 13 Cal.5th at pp. 708-709; People v.
Duchine (2021) 60 Cal.App.5th 798, 816.)
DISPOSITION
This court’s opinion filed on November 15, 2021 is vacated. The trial court’s
order denying Mitchell-Mendez’s petition for resentencing under former section 1170.95
is reversed. The matter is remanded to the superior court with directions to issue an order
to show cause and to hold an evidentiary hearing. (§ 1172.6, subds. (c)-(d).)
8.