People v. Mendoza CA3

Filed 12/12/22 P. v. Mendoza CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C089455
Plaintiff and Respondent, (Super. Ct. Nos.
STK-CR-FE-2011-0004791,
v. SF115887B)
EMMANUEL MATHEW MENDOZA, OPINION ON TRANSFER
Defendant and Appellant.
Defendant Emmanuel Mathew Mendoza appeals from a postjudgment order
denying his petition for resentencing under Penal Code1 section 1172.6.2
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 as
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
statute. Although defendant filed his petition under former section 1170.95, we will refer
to it as section 1172.6 throughout this opinion.
1
In 2012, a jury found defendant guilty of first degree murder with a special circumstance
that he had been engaged in an attempted robbery, plus enhancements. We affirmed the
judgment on appeal. (People v. Mendoza et al. (June 3, 2014, C071775) [nonpub. opn.].)
Thereafter, defendant sought resentencing pursuant to section 1172.6, and the trial court
denied his petition based on the jury’s finding that defendant was a major participant in
aiding and abetting the attempted robbery who acted with reckless indifference to human
life. Defendant appealed and, in an unpublished opinion, we affirmed, agreeing with the
trial court that the jury’s finding barred him from resentencing as a matter of law.
(People v. Mendoza (Nov. 1, 2021, C089455) [nonpub. opn.].)
Our Supreme Court granted review and ultimately transferred the matter back to
us with directions to vacate our decision and reconsider the cause in light of its recent
decision, People v. Strong (2022) 13 Cal.5th 698 (Strong). We now conclude the trial
court’s denial of the petition is inconsistent with section 1172.6 and Strong. Accordingly,
we reverse and remand for further proceedings.
BACKGROUND
The underlying facts are not relevant to the resolution of this appeal. It suffices to
say that defendant and several other men robbed their friend at gunpoint. The friend
struggled with the perpetrators for the weapon and was shot and killed.
The jury was instructed with CALCRIM No. 703 that to find the special
circumstance allegation true, it had to find that defendant was the actual killer, acted with
intent to kill, or was a major participant who acted with reckless indifference to human
life.3 The jury found defendant guilty of first degree murder with a special circumstance
3 As relevant here, CALCRIM No. 703, as given, provides: “If you decide that a
defendant is guilty of first degree murder but was not the actual killer, then, when you
consider the special circumstances of Murder While Engaged in Attempted Robbery, you
must also decide whether the defendant acted either with intent to kill or with reckless
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that he had been engaged in robbery (§§ 187, subd. (a), 190.2, subd. (a)(17)(A)) and
attempted second degree robbery (§§ 664, 112), and further found true the allegation that
the principal in the offenses was armed with a firearm (§ 12022, subd. (a)(1)), and that
defendant committed both offenses for the benefit of, at the direction of, and in
association with, a criminal street gang. (§ 186.22, subd. (b)(1).) Thereafter, the trial
court sentenced defendant to life without the possibility of parole for murder, plus eight
years, in state prison. On appeal, we affirmed defendant’s convictions, and specifically
found that the jury’s special circumstance finding was legally applicable to defendant and
was supported by substantial evidence.
In March 2019, defendant filed a petition for resentencing under section 1172.6.
The declaration attached to his petition stated that (1) an information was filed against
him that allowed the prosecution to proceed under a theory of first degree felony murder;
(2) he was convicted by jury of first degree murder pursuant to the felony-murder rule
and/or the natural and probable consequences doctrine, with the jury finding the special
circumstance allegation to be true; and (3) he could not now be convicted of murder
because of the changes made to sections 188 and 189, effective January 1, 2019, because
he was not the actual killer, did not, with the intent to kill, aid, abet, counsel, command,
induce, solicit, request, or assist the actual killer in the commission of first degree
murder, and was not a major participant who acted with reckless indifference to human
life during the course of the crime. Defendant did not request appointment of counsel.
indifference to human life. [¶] In order to prove this special circumstance for a
defendant who is not the actual killer but who is guilty of first degree murder as an aider
and abettor or a member of a conspiracy, the People must prove either that the defendant
intended to kill, or the People must prove all of the following: [¶] 1. The defendant’s
participation in the crime began before or during the killing; [¶] 2. The defendant was a
major participant in the crime; [¶] AND [¶] 3. When the defendant participated in the
crime, he acted with reckless indifference to human life.”
3
In his petition, defendant conceded that the jury necessarily found his robbery-
murder special circumstance allegation true. However, his petition argued that the jury’s
special circumstance finding is no longer supported by substantial evidence in light of
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), in which the court construed “major participant” and “reckless indifference
to human life” in a manner that differed from earlier constructions of these phrases.
The trial court, relying on our 2014 Mendoza opinion and the jury instructions
from defendant’s trial, denied the petition. It concluded that because the jury found the
robbery special circumstance true, it necessarily found defendant was a major participant
in the crime who acted with reckless indifference to human life. It further relied on the
language from our opinion that substantial evidence supported the jury’s finding that
defendant acted with reckless indifference to human life.
DISCUSSION
In a supplemental brief following transfer from the Supreme Court, d efendant
argues the trial court erred in denying his petition for resentencing at the prima facie
stage by relying on the special circumstance finding, in view of Strong, supra, 13 Cal.5th
698. The People did not file a response. We agree with defendant.
A. Legal background
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), effective
January 1, 2019, was enacted to amend the felony-murder rule and eliminate the natural
and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015;
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) To that end, Senate
Bill 1437 amended sections 188 and 189 and added section 1172.6.
Section 189, subdivision (e) now limits the circumstances under which a person
may be convicted of felony murder. As relevant here, a participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a), defining first degree murder,
in which a death occurs, is liable for murder if the person was a major participant in the
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underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of section 190.2. (Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also added section 1172.6 to delineate the resentencing petition
process for a “person convicted of felony murder or murder under a natural and probable
consequences doctrine or other theory . . . .” (§ 1172.6, subd. (a).) Once a defendant
submits a petition, and the court performs an initial review for missing information and
appoints counsel for defendant, subdivision (c) of section 1172.6 provides: “After the
parties have had an opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that the petitioner is entitled to relief, the court shall issue
an order to show cause. If the court declines to make an order to show cause, it shall
provide a statement fully setting forth its reasons for doing so.”
B. Eligibility for relief with special circumstances present
Section 190.2, subdivision (d) provides that for the purposes of those special
circumstances based on the enumerated felonies in paragraph (17) of subdivision (a),
which include robbery and burglary, an aider and abettor must have been a “major
participant” and have acted “with reckless indifference to human life.” (§ 190.2, subd.
(d); Banks, supra, 61 Cal.4th at p. 798.) Thus, on its face, a special circumstance finding
satisfies the requirements for accomplice murder liability even after Senate Bill 1437.
(§ 189, subd. (e).)
Since defendant’s conviction, however, the Supreme Court has refined the analysis
for who qualifies as a major participant acting with reckless indifference to human life in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. In Banks, the Supreme
Court identified a series of considerations, none of which are “necessary, nor is any one
of them necessarily sufficient,” for determining whether a defendant was a major
participant: “What role did the defendant have in planning the criminal enterprise that
led to one or more deaths? What role did the defendant have in supplying or using lethal
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weapons? What awareness did the defendant have of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after lethal force was used?”
(Banks, at p. 803, fn. omitted.)
Similarly, in Clark, the Supreme Court found “ ‘reckless indifference’ ” to
“encompass[] a willingness to kill (or to assist another in killing) to achieve a distinct
aim . . . .” (Clark, supra, 63 Cal.4th at p. 617.) It also provided a nonexhaustive list of
factors to consider in making this determination, including use of or awareness of the
presence of a weapon or weapons, physical presence at the scene and opportunity to
restrain confederates or aid victims, the duration of the crime, knowledge of any threat
the confederates might represent, and efforts to minimize risks. (Id. at pp. 618-623.)
In Strong, the Supreme Court addressed the impact of Banks and Clark on section
1172.6 petitions for defendants with special circumstance findings. The Supreme Court
found “Banks and Clark both substantially clarified the law governing findings under []
section 190.2, subdivision (d)” such that they “represent the sort of significant change
that has traditionally been thought to warrant reexamination of an earlier-litigated issue.”
(Strong, supra, 13 Cal.5th at pp. 706, 717.) Consequently, prior circumstance findings
made before Banks and Clark “do not preclude a defendant from making out a prima
facie case for relief under Senate Bill 1437. This is true even if the trial evidence would
have been sufficient to support the findings under Banks and Clark.” (Strong, at p. 710.)
Thus, a defendant with a special circumstance finding applying for relief through a
section 1172.6 petition may still be ineligible for relief, but it must be determined beyond
a reasonable doubt the defendant was a major participant who acted with reckless
indifference to human life under the Banks/Clark analyses. (Strong, at p. 720.) And
though a special circumstance finding can be challenged through a habeas corpus
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petition, “nothing in section 1172.6 says that a defendant must always do so before
seeking resentencing.” (Strong, at p. 713.)
C. Analysis
Here, defendant filed a facially sufficient petition. However, the trial court relied
on defendant’s prior special circumstance finding to conclude he failed to make a prima
facie case for eligibility under section 1176.2, subdivision (c). Specifically, it concluded
that (1) the jury found defendant was a major participant in the crime who acted with
reckless indifference to human life; and (2) the jury’s special circumstance finding was
supported by substantial evidence, and thus defendant was ineligible for relief.
Following Strong, these reasons are not valid. Although the requirements for the felony-
murder special circumstance did not change as a part of Senate Bill 1437, defendant is
not barred from making a prima facie case for relief based on the pre-Banks/Clark special
circumstance finding. (Strong, supra, 13 Cal.5th at pp. 710, 713.) Moreover, although
the trial court could have determined defendant was a major participant who acted with
reckless indifference to human life under the Banks/Clark standards, it was required to
make this finding under the beyond-a-reasonable-doubt standard following an evidentiary
hearing under section 1172.6, subdivision (d). (Strong, at p. 720.) And, the trial court
provided no additional reasons for denying defendant’s petition at this stage.
Accordingly, we must conclude that defendant has made a prima facie showing. We
therefore direct the trial court to issue an order to show cause and hold an evidentiary
hearing under section 1172.6, subdivision (d).
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DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is reversed and
the matter is remanded for the trial court to conduct further proceedings consistent with
section 1172.6, subdivision (d).
KRAUSE , J.
We concur:
MAURO , Acting P. J.
BOULWARE EURIE , J.
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