People v. Mendoza CA2/3

Filed 2/15/22 P. v. Mendoza CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B307210
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA082475-01
v.
GUILLERMO RAMONE
MENDOZA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, H. Clay Jacke II, Judge. Affirmed.
Robert D. Bacon, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Amanda Lopez and Colleen M.
Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
Guillermo Ramone Mendoza appeals from the superior
court’s order denying his petition under Penal Code section
1170.95.1 That statute allows certain defendants convicted
of murder under the felony-murder rule or the natural and
probable consequences doctrine to petition the court to vacate
their convictions and for resentencing. Here, the trial court—
without appointing counsel or inviting briefing—found Mendoza
had failed to demonstrate his entitlement to relief. Because
the record of conviction establishes Mendoza is ineligible for
resentencing as a matter of law, any errors the superior court
committed were harmless. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The crimes, convictions, and appeal
In 2006, the People charged Mendoza, along with his
co-defendant Cesar Thomas Banuelos, with the murder of
Jose Lujan. The People alleged the defendants committed the
crime for the benefit of, at the direction of, or in association with
a criminal street gang. The People also alleged that a principal
used and discharged a firearm causing Lujan’s death.
As the facts of Mendoza’s crime are unnecessary for our
analysis, we summarize them only briefly. 2
1 References to statutes are to the Penal Code.
2 On April 2, 2021, we granted Mendoza’s motion to
take judicial notice of the record in his direct appeal, People v.
Mendoza (Aug. 22, 2008, B197580) [nonpub. opn.] (Mendoza I).
Mendoza seems to object, however, to our consideration of this
division’s opinion affirming his conviction. As we need only the
charges, jury instructions, and verdicts to decide this appeal, we
summarize the facts of Mendoza’s crime from our 2008 opinion
only for the basis of his conviction. (See People v. Woodell (1998)
17 Cal.4th 448, 459-460.)
2
Mendoza, his co-defendant Banuelos, and victim Lujan
were all members of the Largo 36 gang. One July night in 2005,
Alicia Ochoa heard three “pops” outside her bedroom window.
Ochoa lived across the street from a garage apartment occupied
by Frances Sandaval. The apartment was a Largo 36 gang
hangout. Shortly after the “pops,” Ochoa heard fighting,
breaking glass, and two more gunshots. She looked out
her window and saw a man walking in the driveway of the
gang hangout. He left in a white Cadillac. (Mendoza I.)
Ochoa then saw Mendoza and another man dragging
a body out of the residence to the curb. Mendoza walked over
to a couch that was on the street in front of the driveway and
put something on it. He opened an iron gate so a car parked
in the driveway could leave. The second man drove off in that
car. Mendoza went back to the couch, retrieved the item he’d
left there, and put it in his waistband. He then headed to a
Lincoln parked on the street and drove off. Ochoa called the
police. (Mendoza I.)
Police found Lujan’s body on the curb, wrapped in a
blanket, at the end of a trail of blood leading from the garage
apartment. Lujan had 13 knife wounds, and he’d been shot
in the head three times and in the abdomen once. Two of the
wounds “would have been rapidly fatal”: a deep stab wound to
the neck that severed the jugular vein, and the gunshot to the
abdomen, which pierced a number of vital organs. (Mendoza I.)
Forensic evidence indicated Lujan was shot in the head
three times, then tried to flee. The killers intercepted him
and prevented his escape. He was then hit on the head with
an 18½ pound porcelain sink; he also was hit at the back of
his knees, causing him to fall to the ground. On the ground,
he was shot in the abdomen. A blanket was put over his head
and he was rapidly and repeatedly stabbed in the neck through
3
the blanket. Either before or after the stabbing, he again was
hit with the sink. “The attack was almost certainly carried out
by two or more persons.” (Mendoza I.)
A pair of Mendoza’s shoes matched bloody footprints
at the scene, and his fingerprint was found on a cup in the
residence. When police arrested Mendoza, his shoes and car
also contained small amounts of blood. (Mendoza I.)
At trial, Mendoza’s counsel conceded in his opening
statement that Mendoza had been there that day and the
bloody footprints were his. Mendoza testified on his own behalf.
Mendoza told the jury that Sandaval and a Largo 36 gang
member named Jessie Morales, who lived with Sandaval,
killed Lujan. Mendoza claimed he’d asked them, “[W]hat
the fuck are ya’ll doing?”, adding, “[L]eave him alone.”
Mendoza said Sandaval’s father pointed a gun at him,
and Sandaval suggested they kill him but Morales said no.
(Mendoza I.)
The People pursued two alternative theories for first
degree murder: (1) the murder was willful, deliberate, and
premeditated; and (2) the murder was committed by lying
in wait. (Mendoza I.) The trial court instructed the jury with,
among many other instructions, CALCRIM Nos. 500 (Homicide:
General Principles), 520 (Murder with Malice Aforethought), and
521 (Murder: Degrees), as modified. In the paragraph on willful,
deliberate, and premeditated murder, the court told the jury,
“The defendant acted willfully if [he] intended to kill.” (Italics
added.) In the paragraph on murder by lying in wait, the court
listed—among other elements—the defendant “intended to and
did make a surprise attack on the person killed.” The court
continued, “The lying in wait does not need to continue for
any particular period of time, but its duration must show a
state of mind equivalent to deliberation and premeditation.”
4
The court also instructed the jury on direct aiding and
abetting, giving CALCRIM Nos. 400 (Aiding and Abetting:
General Principles) and 401 (Aiding and Abetting: Intended
Crimes). The court did not give the jury CALCRIM Nos. 402
or 403 on the natural and probable consequences doctrine.
The People never alleged felony murder and the court did not
instruct the jury on the felony-murder rule. The prosecutor
never mentioned natural and probable consequences in his
closing argument,3 nor did he discuss any intended or target
crime other than murder. The prosecution’s theory was
Mendoza and two other men worked together to kill Lujan.
The jury convicted Mendoza of first degree murder and
found the gang and “principal discharged a firearm causing
death” allegations true.4 The trial court sentenced Mendoza
to a term of 50 years to life. As noted, we affirmed Mendoza’s
conviction. (Mendoza I.)
2. The section 1170.95 petition
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) took effect, in March 2020 Mendoza filed a document
entitled “Petition to Vacate Conviction (under PC 1170.95
3 The prosecutor did quote the language from the discussion
of implied malice in CALCRIM No. 520 that “[t]he natural
consequences of the act were dangerous to human life.” The
concept of “natural consequences” in the instruction on implied
malice has to do with a defendant’s own act. It is not the same
as the natural and probable consequences doctrine abolished by
Senate Bill 1437 which concerns vicarious liability of an aider
and abettor for another person’s act. (People v. Daniel (2020)
57 Cal.App.5th 666, 677, fn. 4 (Daniel).)
4 The jury was unable to reach a unanimous verdict as to
Banuelos. (Mendoza I.)
5
Amended, PC 188 Amended and PC 189 Amended).”5 The
petition stated, “Petitioner was convicted by a jury on 9/26/2006
of first degree murder (PC 187(A)), for the killing of a human
being in 2005 and was sentenced to 50 years to life on January 9,
2007, and is currently in state prison serving that sentence.”
Mendoza “assert[ed] that the prosecution argued a ‘theory’ during
trial that petitioner’s actions caused the death of a human being
in 2005.” Mendoza asked the court to appoint counsel for him.
Mendoza attached a declaration to his petition stating,
“The prosecution [i]n my case argued a felony murder or a
natural and probable consequences theory to the court during
trial that my actions cause[d] the death of a human being.”
Mendoza asserted, “I am eligible for relief because I could not
now be convicted of 1st degree murder due to the retroactive
changes made to Penal Code sections 188 and 189, effective
January 1, 2019.”
The trial court did not appoint counsel for Mendoza.
There is no indication in the record that the prosecution ever
filed a response to the petition. On July 15, 2020, the court
issued a memorandum of decision denying Mendoza’s petition.
The court stated, “The petition is summarily denied because
the petitioner is not entitled to relief as a matter of law, for
the following reasons: 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 . . . or . . . natural and probable consequences.”
5 Although filed in pro per, the petition appears to have been
prepared by counsel.
6
DISCUSSION
1. Senate Bill 1437
Senate Bill 1437 took effect on January 1, 2019. (See
Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder, to ensure a
person’s sentence is commensurate with his or her individual
criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830,
842-843 (Gentile); People v. Lewis (2021) 11 Cal.5th 952, 957, 971
(Lewis).)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e). It provides that a participant
in the perpetration of qualifying felonies is liable for felony
murder only if the person: (1) was the actual killer; (2) was
not the actual killer, but, with the intent to kill, acted as a
direct aider and abettor; or (3) was a major participant in the
underlying felony and acted with reckless indifference to
human life as described in section 190.2, subdivision (d). (See
Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural
and probable consequences doctrine by adding subdivision (a)(3)
to section 188, which states that “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
Senate Bill 1437 also authorized, through new section
1170.95, an individual convicted of felony murder or murder
based on the natural and probable consequences doctrine to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he could not have been
convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, supra, 11 Cal.5th at
pp. 959-960; Gentile, supra, 10 Cal.5th at p. 843.) A defendant
is eligible for relief under section 1170.95 if he meets three
7
conditions: (1) he must have been charged with murder by means
of a charging document that allowed the prosecution to proceed
under a theory of felony murder or under the natural and
probable consequences doctrine,6 (2) he must have been convicted
of first or second degree murder, and (3) he could no longer be
convicted of first or second degree murder due to changes to
sections 188 and 189 effectuated by Senate Bill 1437. (§ 1170.95,
subd. (a).)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that
he was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (b)(3) requires the
court to appoint counsel to represent the petitioner, if requested;
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he is entitled
to relief. (See Lewis, supra, 11 Cal.5th at pp. 959-960.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he falls
within the provisions of section 1170.95 and is entitled to relief,
the superior court properly examines the record of conviction,
“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, supra, 11
Cal.5th at p. 971.) However, “the prima facie inquiry under
6 As discussed below, Senate Bill No. 775 (2021-2022 Reg.
Sess.) (Senate Bill 775), effective January 1, 2022, amended
section 1170.95 in several ways. One of those was to add a third
category of eligibility for individuals convicted of murder on a
“theory under which malice is imputed to a person based solely
on that person’s participation in a crime.” (§ 1170.95, subd. (a),
added by Stats. 2018, ch. 1015, § 4, as amended by Stats. 2021,
ch. 551, § 2.)
8
subdivision (c) is limited. Like the analogous prima facie inquiry
in habeas corpus proceedings, ‘ “the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if
his or her factual allegations were proved. If so, the court must
issue an order to show cause.” ’ . . .[7] ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to
the petitioner.” ’ ” (Ibid.; see Daniel, supra, 57 Cal.App.5th
at p. 675 [any error in denying petition at prima facie stage
without appointing counsel is harmless if the record of conviction
“ ‘conclusively demonstrates’ ” petitioner is ineligible for relief].)
2. The Error in Denying Mendoza’s Petition Without
Appointing Counsel Was Harmless
In People v. Lewis, supra, 11 Cal.5th 952, the Supreme
Court, resolving a disagreement among the courts of appeal
and agreeing with the analysis in People v. Cooper (2020) 54
Cal.App.5th 106, held, once a petitioner files a facially sufficient
petition requesting counsel, the superior court must appoint
counsel before performing any prima facie review under section
1170.95, subdivision (c): “[P]etitioners who file a complying
petition requesting counsel are to receive counsel upon the
filing of a compliant petition.” (Lewis, at pp. 961-963.) Because
Mendoza tracked the statutory language in his petition (more
or less), the superior court erred by denying the petition without
first appointing counsel.
7 The court then holds an evidentiary hearing at which the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subds. (d)(1), (3).)
9
The Lewis Court, however, also held a superior court’s
failure to appoint counsel to represent a petitioner when
assessing whether he has made a prima facie showing of
entitlement to relief under section 1170.95, subdivision (c),
is state law error only, reviewable for prejudice under the
harmless error standard of People v. Watson (1956) 46
Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 973-974.)
Here, Mendoza is ineligible for relief under section 1170.95
as a matter of law. To be eligible for resentencing, Mendoza was
required to show that he “could not be convicted of first or second
degree murder because of changes to Section 188 or 189” made by
Senate Bill 1437. (§ 1170.95, subd. (a)(3).)8 The jury instructions
given at Mendoza’s trial conclusively demonstrate he cannot
make that showing. Where, as here, “no instructions were given
on felony murder or murder under the natural and probable
consequences doctrine,” the defendant is “not ‘[a] person
convicted of felony murder or murder under a natural and
probable consequences theory,’ and he is therefore ineligible
for relief as matter of law.” (Daniel, supra, 57 Cal.App.5th at
p. 677. See also People v. Soto (2020) 51 Cal.App.5th 1043, 1056
[“potential relief under section 1170.95 extends only to those
convicted of murder by operation of the natural and probable
consequences doctrine or felony murder”], abrogated in part
on another ground by Lewis, supra, 11 Cal.5th at pp. 962-963;
People v. Tarkington (2020) 49 Cal.App.5th 892, 899 [jury
8 Senate Bill 775 amended this provision to read, “The
petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a)(3),
added by Stats. 2018, ch. 1015, § 4, as amended by Stats. 2021,
ch. 551, § 2.)
10
instructions did not include any instruction on natural and
probable consequences or felony murder; petitioner was the
actual killer], abrogated in part on another ground by Lewis,
supra, 11 Cal.5th at pp. 962-963; People v. Edwards (2020)
48 Cal.App.5th 666, 674-675 [counsel not appointed, but absence
of jury instructions on felony murder or aider and abettor liability
under natural and probable consequences doctrine justified
summary denial of petition], abrogated in part on another ground
by Lewis, supra, 11 Cal.5th at pp. 962-963.)
Where the record shows, as a matter of law, that the
petitioner was not tried under either of those theories, he
necessarily was convicted on a theory that survives the changes
to sections 188 and 189 enacted by Senate Bill 1437. (See People
v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417 [Senate
Bill 1437 amended the Penal Code to ensure murder liability
is not imposed on a person who was not the actual killer];
People v. Nguyen (2020) 53 Cal.App.5th 1154, 1157, 1167-1168
[petitioner not entitled to relief where he was convicted as
direct aider and abettor].)9
9 As noted, Senate Bill 775 amended section 1170.95
to authorize a resentencing petition by “[a] person convicted
of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation
in a crime . . . .” (§ 1170.95, subd. (a), italics added, added by
Stats. 2018, ch. 1015, § 4, as amended by Stats. 2021, ch. 551,
§ 2.) On January 18, 2022, Mendoza’s counsel submitted a letter
“invit[ing] the Court’s attention” to People v. Langi (Jan. 12,
2022, A160262) ___ Cal.App.5th ___ [2022 WL 110250] (Langi).
Langi was one of four men who beat and robbed a group that
included victim Martinez, who died after someone in Langi’s
group punched him, causing him to fall and hit his head. The
prosecution tried the case on a first degree felony murder theory,
11
Noticeably absent from Mendoza’s briefs is any discussion
of direct aiding and abetting. The parties agree our opinion
affirming Mendoza’s conviction never said he was the actual
killer. But, as the jury was not instructed on any form of
accomplice liability other than direct aiding and abetting, its
return of a first degree murder verdict demonstrates that, at a
minimum, the jury found Mendoza aided and abetted whomever
fired the fatal shot and whomever inflicted the fatal stab wound
with the necessary intent to kill (if neither of those people was
Mendoza). Senate Bill 1437 did not alter the law regarding the
criminal liability of aiders and abettors of murder because those
but the jury convicted Langi of second degree murder. On direct
appeal, the appellate court held the trial court erred in excluding
third party culpability evidence, but the error was harmless
because the jury could have convicted Langi as a direct aider
and abetter. (Id. at **1-2.)
Years later, Langi petitioned for resentencing. (Langi,
supra, 2022 WL 110250 at *2.) The trial court summarily
denied his petition, agreeing with the prosecutor that Langi
was the actual killer. (Ibid.) The court of appeal reversed.
(Id. at *7.) The court observed “the standard aiding-and-abetting
instructions are ill suited to the crime of second degree murder.”
(Id. at *5.) The court concluded an evidentiary hearing was
required because the record of conviction did “not conclusively
negate the possibility that the jury found [Langi] guilty of
second degree murder by imputing to him the implied malice
of the actual killer.” (Id. at *6.)
Here, by contrast, the jury convicted Mendoza of
first degree murder. The court’s instructions on both of the
prosecutor’s theories—willful, deliberate, and premeditated
murder, and murder by lying in wait—told the jury the
prosecution had to prove Mendoza willfully intended to kill
or intended to make a surprise attack on the victim with a
state of mind equivalent to deliberation and premeditation.
12
individuals necessarily “ ‘know and share the murderous intent
of the actual perpetrator.’ ” (People v. Offley (2020) 48
Cal.App.5th 588, 595-596.) “One who directly aids and abets
another who commits murder is thus liable for murder under
the new law just as he or she was liable under the old law.”
(Ibid.)10
Because there is no reasonable probability Mendoza
would have obtained a more favorable result had counsel been
appointed and given the opportunity to file a memorandum
supporting the petition, the court’s error in failing to appoint
10 Mendoza contends there’s “a real possibility” he “was
convicted under an imputed malice theory,” because the trial
court gave an older version of CALCRIM No. 400 that told
the jury an aider and abettor was “equally guilty” whether
he personally committed the crime or aided and abetted the
perpetrator who committed it. On direct appeal (represented
by the same counsel who represents him in this appeal), Mendoza
never challenged that instruction or claimed it subjected him
to liability by “imputing to him the culpable mental state of
a co-perpetrator.” Assuming for argument’s sake that such an
instructional error—not challenged on appeal—can be raised by
a section 1170.95 petition (as opposed, for example, to a petition
for a writ of habeas corpus), Mendoza has not cited any testimony
or other evidence in the seven-volume record of his trial to
support his speculation that the jury imputed to him the
“culpable mental state” of Banuelos (whom the jury did not
convict) or an uncharged, absent co-perpetrator. The trial court
instructed the jury it was required to separately consider the
evidence as it applied to each defendant and decide the charge
as to each defendant separately (CALCRIM No. 203), and it was
not to speculate about other possible perpetrators, but rather
to “decide whether the defendants on trial here committed
the crime charged” (CALCRIM No. 373). As we have said,
by convicting Mendoza of first degree murder, the jury found
he intended to kill the victim.
13
counsel was harmless. (See People v. Watson, supra, 46 Cal.2d
at p. 836 [an error violating only California law is harmless
unless “it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence
of the error”]; Daniel, supra, 57 Cal.App.5th at p. 678; People v.
Farfan (2021) 71 Cal.App.5th 942, 947, 953-956.)
DISPOSITION
We affirm the superior court’s order denying Guillermo
Ramone Mendoza’s petition to vacate his murder conviction
and for resentencing under Penal Code section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
14