People v. Mendez CA2/7

Filed 3/20/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B318512
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA004460)
v.
GABRIEL MENDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rob B. Villeza, Judge. Affirmed with directions.
Boyce & Schaefer and Robert E. Boyce, 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, Blythe J. Leszkay and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________
Gabriel Mendez appeals from a postjudgment order
denying his petition for resentencing under former Penal Code
section 1170.951 (now section 1172.6) as to his conviction of
second degree murder. In 1990 Mendez pleaded no contest to
second degree murder pursuant to a negotiated plea agreement
and was sentenced to an indeterminate state prison term of
15 years to life. In 2019 Mendez petitioned to vacate his murder
conviction under former section 1170.95 on the basis he was
convicted under the natural and probable consequences doctrine
and could not now be found guilty of murder in light of changes in
the law. In People v. Mendez (Feb. 21, 2021, B299684) (nonpub.
opn.) (Mendez), we reversed the trial court’s summary denial of
Mendez’s petition and remanded for the court to appoint counsel
for Mendez, to issue an order to show cause, and to hold an
evidentiary hearing to determine whether to vacate Mendez’s
murder conviction.
After an evidentiary hearing, the trial court concluded
Mendez was not eligible for resentencing because he was a direct
aider and abettor in the implied malice murder of Jessie Jimenez.
Mendez contends the court erred in admitting statements made
by Mendez during a 2015 parole eligibility hearing, and
substantial evidence does not support the court’s findings. We
affirm.
1 All undesignated statutory references are to the Penal
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing
We described the facts presented at trial in our
nonpublished opinion in People v. Valles (Aug. 24, 1993, B058344)
(nonpub.) (Valles). The following facts are undisputed.2
Sometime after midnight on May 12, 1990 two carloads of
young men pulled into the parking lot of a liquor store in
Pomona. The men belonged to gangs that were rivals of the
Pomona Michoacan Rifa (PMR) gang. Mendez, Ramon Magana,
and Richard Ortega belonged to the 12th Street gang. Ricardo
Valles, Alberto Valles (Alberto), and Victor Caudillo belonged to
the Pomona Sur gang. Jimenez’s family members were
associated with the PMR gang. Jimenez and a female companion
had just completed a purchase inside the store. Jimenez left the
store but ran back inside when he saw the men approach the
store.
Mendez and the other men followed Jimenez inside the
store and threw beer cans at him. Jimenez sought refuge behind
the cashier’s counter. The men grabbed merchandise off the
shelves and threw beer cans, six packs of beer, and other items at
Jimenez as he lay on the floor curled in a fetal position. Two or
2 Because Mendez entered a negotiated plea on the fourth
day of the trial (which continued as to Ricardo Valles), only a
portion of the trial testimony is part of Mendez’s record of
conviction. We include in our summary the undisputed facts
adduced at trial, including facts elicited after the fourth day that
were considered by the superior court without objection and cited
by Mendez on appeal.
3
more of the men started beating and kicking Jimenez.3 One of
the men yelled “12” in Spanish and another made a gang sign.
Valles pulled out a gun, leaned over the counter, and
prepared to fire the gun at Jimenez. However, Valles struggled
with the gun, and it did not fire. Valles ordered the other men to
“hold the son of a bitch,” and he fired the gun into the temple of
Jimenez’s head. Jimenez died a few days later.
B. The Information, Plea, and Sentencing
The amended information charged Valles, Mendez, Alberto,
Ortega, Caudillo, and Magana with first degree murder (§ 187,
subd. (a); count 1); conspiracy to commit murder (§§ 182, former
subd. (1), 187, subd. (a); count 2); and conspiracy to commit
assault with a deadly weapon (§§ 182, former subd. (1), 245,
subd. (a)(1); count 3). The information alleged 11 overt acts as to
each of the conspiracy charges. The information specially alleged
Valles personally used a firearm (§ 12022.5) and, as to Mendez
and his codefendants, a principal was armed with a firearm
during the commission of the offense (§ 12022, subd. (a)(1)). The
information also alleged the offenses were committed in
association with a criminal street gang within the meaning of
section 186.22, subdivision (b)(1). (Valles, supra, B058344.)
3 We concluded in Valles that Mendez was part of the group
that was beating and kicking Jimenez. However, whether
Mendez was one of the men who beat and kicked Jimenez was a
disputed fact at the evidentiary hearing. On appeal, Mendez
argues a witness to the shooting said only two men were kicking
and beating Jimenez, and the prosecutor argued the two men
were Alberto and Caudillo.
4
The trial commenced as to all defendants on October 2,
1990. On the fourth day of trial (October 5), Mendez and the
other defendants except for Valles entered into negotiated pleas
of guilty or no contest. Mendez pleaded no contest to second
degree murder and admitted the allegation a principal was
armed with a firearm. As part of the plea, Mendez and his
attorney each stipulated that the probation report and the
preliminary hearing transcript provided a factual basis for the
plea. The trial court found Mendez made a knowing, voluntary,
and intelligent waiver of his constitutional rights, and based on
the first three days of testimony, there was a factual basis for the
plea. Before sentencing Mendez, the trial court read into the
record a letter Mendez admitted writing to “Ralph” stating, “As
you probably know by now, that I got 15 to life but I don’t sweat
it as long as I know I am alive and that Vato is dead.”4
The trial court sentenced Mendez pursuant to the
negotiated plea to 15 years to life for second degree murder, and
it imposed and stayed a one-year term for the firearm
enhancement. The court dismissed the remaining allegations.
Mendez did not attend the remainder of the trial.5
4 Although the record does not reflect whether “Vato”
specifically referred to Jimenez, Mendez does not dispute that it
did.
5 The jury found Valles guilty of first degree murder and
conspiracy to commit murder but not guilty of conspiracy to
commit assault with a deadly weapon. The jury found true the
firearm-use and gang allegations. On appeal, we affirmed
Valles’s judgment of conviction, but we concluded as to Mendez
the trial court violated his plea agreement because it discussed
with Mendez at the time of his plea that his parole term would be
5
C. Mendez’s Petition for Resentencing
On February 7, 2019 Mendez, representing himself, filed a
form petition for resentencing and supporting declaration seeking to
vacate his murder conviction and to be resentenced in accordance
with recent statutory changes relating to accomplice liability for
murder. In his petition, Mendez declared he “pled guilty or no
contest to 1st or 2nd degree murder in lieu of going to trial
because [he] believed [he] could have been convicted of 1st or 2nd
degree murder at trial 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 Penal Code §§ 188 and 189, effective January 1, 2019.”
Mendez requested the court appoint counsel for him. Mendez
argued in his supporting memorandum that he pleaded no
contest to second degree murder based on the natural and
probable consequences doctrine; he had no intent to kill; he was
limited to five years, but in fact the Board of Prison Terms had
authority to place Mendez on parole for up to life. (Valles, supra,
B058344.) We reversed the judgment as to Mendez and
remanded to allow him the option to withdraw his plea and have
the charges reinstated. (Ibid.) On remand Mendez elected not to
withdraw his plea, and the judgment was reinstated. We note
that although the trial court had stayed the one-year firearm
enhancement as part of the negotiated plea, the March 24, 1994
abstract of judgment reflects that the enhancement was imposed,
not stayed. Therefore, the abstract of judgment must be
corrected to reflect the sentence imposed. (See People v.
Jones (2012) 54 Cal.4th 1, 89 [“When an abstract of judgment
does not reflect the actual sentence imposed in the trial judge’s
verbal pronouncement, this court has the inherent power
to correct such clerical error on appeal, whether on our own
motion or upon application of the parties.”].)
6
not a major participant; and he did not act with reckless
indifference to human life. Mendez also submitted a declaration
in which he stated “[t]hat during the offense [he] was unaware
that the actual killer had a firearm.”
On May 22, 2019 the People filed a 25-page response to
Mendez’s petition in which they argued Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437) was unconstitutional,
and in any event, Mendez was ineligible for relief under former
section 1170.95 because the testimony showed Mendez and
Magana beat Jimenez in the liquor store and threw cans and
packages of beer at him, leading to Valles shooting Jimenez.
Further, Mendez had a motive to harm Jimenez as a rival gang
member. Thus, they argued, Mendez was a direct aider and
abettor of the murder with the intent to kill. The People attached
over 1,000 pages of exhibits to their petition, including significant
portions of the preliminary hearing and trial transcripts, as well
as the transcripts of Mendez’s 2002 and 2015 parole hearings.
The People also quoted the letter the trial court read at
sentencing in which Mendez wrote to a friend he was comfortable
with his sentence as long as he knew that Vato was dead.
On May 24, 2019 the trial court summarily denied
Mendez’s petition for resentencing.6 The court did not appoint
counsel for Mendez. Mendez appealed.
D. Mendez I
In Mendez I we concluded Mendez made a prima facie
showing he was entitled to relief under former section 1170.95
6 Judge Steven D. Blades ruled on the petition. Judge
Gregory C. O’Brien presided over the trial but retired in 2005.
7
and the record of conviction did not conclusively show as a matter
of law Mendez harbored an intent to kill. We noted the trial
court erred in considering statements made by Mendez during his
2015 parole hearing as part of its prima facie review, because
those statements were not part of Mendez’s record of conviction.
We reversed and remanded for the trial court to appoint
counsel for Mendez, issue an order to show cause, and hold a
hearing to determine whether to vacate Mendez’s murder
conviction. (Mendez I, B299684.)
E. The Evidentiary Hearing and Ruling
At the February 16, 2022 evidentiary hearing, the
prosecution introduced into evidence a surveillance video of the
May 12, 1990 incident as well as transcripts of the preliminary
hearing, the first four days of trial (from October 2 through 5,
1991), Mendez’s plea hearing, Mendez’s sentencing, and portions
of Mendez’s 2015 parole hearing. Without objection by Mendez,
the trial court took judicial notice of our decision in Valles, supra,
B058344. Mendez did not present any new or additional
evidence.
1. The preliminary hearing testimony
Eunsup Yoon, the owner of the liquor store, testified at the
preliminary hearing. Around midnight on May 12, 1990 Yoon
was at the liquor store in his office, which was located next to the
cash register and behind the counter. Yoon saw the incident
through a window in his office wall behind the counter. He saw
Jimenez leave the store, then run back inside. About six young
men followed Jimenez into the store, and Jimenez ran behind the
cash register. The men began to throw beer cans and candy bars.
8
Two of the men followed Jimenez behind the counter and began
to hit and kick him. Jimenez was hunched over as they beat him,
and he appeared to become unconscious. Then another man shot
Jimenez in the head.
During the testimony of Pomona Police Investigator Dexter
Cole, the prosecution played the surveillance video of the
incident. Cole identified each of the codefendants as the video
played.
2. The trial testimony
At trial, Yoon provided testimony consistent with his
preliminary hearing testimony about the events he witnessed in
the liquor store. According to Yoon, Jimenez was “all curled up
on the ground” in a fetal position behind the counter while the
two men were beating him. Yoon testified only two men were
hitting and kicking Jimenez behind the cash register. At the
time the man fired the gun, the two men who were beating
Jimenez had already left from behind the cash register. The
shooter leaned over the counter to shoot Jimenez, who was on the
ground.
Mendez’s attorney stipulated that Mendez’s fingerprints
were found on an empty can of beer recovered from the liquor
store. Pomona Police Detective Frank Terrio testified the can
was recovered in a pool of liquid and appeared to have burst and
spilled. The location and condition of the can were consistent
with the can having been thrown across the store. Detective
Terrio recovered a single 0.25-caliber casing from the liquor store.
9
3. The surveillance video
At the evidentiary hearing, the prosecutor played the
surveillance video for the court. In the video, Jimenez is seen
inside the liquor store with a female companion. He makes a
purchase and then exits the store. Jimenez then runs back into
the store and disappears off camera in the lower right corner of
the frame. Mendez enters the store (dressed in black with a
black cap) and throws merchandise in the direction Jimenez ran.
Mendez is followed by Magana, Valles, Caudillo, and then
Alberto. While Mendez crosses his arms in front of his chest to
form an “X,” Valles runs around the other men and disappears off
camera at the bottom of the frame. Mendez pauses briefly,
gesturing with his hand toward the door as Caudillo and
Magana move into the store, toward the bottom of the frame.
Magana, Caudillo, then Mendez throw merchandise toward the
lower left corner of the frame.
At this point Mendez disappears from view on the right
side of the frame, passing by Valles just as Valles reemerges at
the lower right corner of the frame (wearing a white shirt and
black cap). Valles’s back is partially turned toward the camera,
and he is looking down at a gun in his hands. Caudillo again
throws merchandise toward the bottom of the frame, then
disappears off camera at the bottom of the frame. As Valles
struggles with the gun, Alberto lifts what appears to be a six-
pack of beer over his head and heaves it in the same direction as
the others. Alberto then briefly disappears then reemerges and
walks toward the door. While Alberto walks toward the door,
Valles briefly kneels, bangs the guns on the ground, and then
raises it above his head as he attempts to manipulate the slide on
the firearm.
10
Valles continues to struggle with the gun as Magana
reemerges from the bottom right corner of the frame. Magana
pushes Valles a short distance back toward the door, then walks
past Valles toward the door while Valles continues to manipulate
the gun in his hands. Alberto moves from the door toward the
bottom of the frame, then disappears again in the bottom right
corner of the frame. Valles moves closer to the bottom of the
frame (where the merchandise had been thrown), then he
disappears off camera. Caudillo emerges from the bottom of the
frame and stops in the middle of the liquor store. About two
seconds later, a gunshot is heard. More than 20 seconds elapses
between when Valles is first seen fidgeting with the gun and
when the gunshot is heard. After the gunshot, Magana exits the
store, followed quickly by Caudillo. Then Alberto, followed by
Mendez, reemerge from the lower right corner of the frame and
run through the store and out the door. They are followed about
two seconds later by Valles, who runs in a similar path from the
bottom of the frame and out the door.
4. Cole’s testimony at the evidentiary hearing
As the surveillance video played, Cole identified Mendez as
“the first one that entered the liquor store” and the second to last
one to leave, exiting immediately before Valles. Cole noted that
although Mendez disappeared off camera after throwing the
merchandise, it appeared that “he followed the path of travel of
the victim.”
5. Mendez’s 2015 parole hearing
During his 2015 parole hearing, Mendez admitted he
chased Jimenez into the store, threw a beer can at him, and
11
“kicked him and hit him with [his] fist.” Mendez explained he
“was motivated by a desire for respect and a perverted duty” to
the 12th Street gang. Mendez had believed Jimenez identified
the homes of 12th Street gang members to Jimenez’s family
members, who were rival gang members that “would return and
shoot at the homes.”
6. Arguments of counsel
After the presentation of testimony, the prosecutor argued
Mendez was guilty as a direct aider and abettor of first degree
murder, who acted with the express intent to kill Jimenez, or of
second degree murder, acting with implied malice as he assisted
Valles in carrying out the shooting. The prosecutor asserted that
“anybody who’s involved in this melee [and] sees Mr. Valles pull
out the weapon, struggle with the weapon, clear the jam, go to
the counter, lean forward over the counter, and then execute Mr.
Jimenez with a shot to the head was on notice of what was about
to happen . . . .” Mendez kept Jimenez “isolated and vulnerable,
surrounded by . . . gang members,” which allowed Valles time to
clear the jammed gun and kill Jimenez. Mendez waited until
Jimenez had been shot to exit the liquor store, making him one of
the last gang members to leave, followed only by Valles. Mendez
was motivated by his belief members of Jimenez’s family were
rival PMR gang members and Jimenez had identified the homes
of 12th Street gang members to his relatives.
Defense counsel argued there was not proof beyond a
reasonable doubt to support any of the prosecution’s theories.
Mendez intended only to “put a beat down” on Jimenez. There
was no evidence Mendez acted with the intent to kill as required
to prove first degree murder. And there was no evidence Mendez
12
knew Valles had a firearm. Defense counsel asserted Mendez
could only have been convicted of murder under the abrogated
natural and probable consequences doctrine. Although Mendez
threw merchandise at Jimenez just after entering the store, he
then turned to gesture toward his compatriots to indicate it was
time to leave, which showed Mendez did not intend to kill
Jimenez. There was no evidence showing Mendez was behind the
counter “beating up Jimenez,” noting that at trial the prosecutor
had argued it was Alberto and Caudillo behind the counter, not
Mendez. Further, the facial expressions and behavior of those
visible in the video while Valles struggled with the gun, including
Magana—who pushed Valles toward the door—suggested they
were surprised by Valles’s escalation of the encounter. Defense
counsel argued the evidence likewise did not establish Mendez
was a direct aider and abettor who acted with implied malice,
asserting, “This was a beat down that took a wrong turn. And it’s
a classic example of natural and probable consequences.”
In his rebuttal, the prosecutor argued defense counsel’s
position Mendez was surprised by the killing was belied by
Mendez’s statement in his letter to Ralph that he did not “‘sweat’”
his sentence because he was alive and Vato was dead, which
showed Mendez’s sense of satisfaction and accomplishment about
the killing.
7. The trial court’s ruling
The trial court7 found the People met their burden to prove
beyond a reasonable doubt Mendez was guilty of second degree
7 Judge Rob B. Villeza presided over the evidentiary hearing
and ruled on Mendez’s petition.
13
implied malice murder “by engaging in conduct that endangered
the life of another and acting with a conscious disregard for life,”
and therefore Mendez was ineligible for resentencing.8 The court
noted Mendez was a member of the 12th Street gang, Jimenez’s
relatives were members of the rival PMR gang, and Mendez
believed Jimenez had identified to his relatives the homes of
Mendez’s fellow gang members for targeted shootings by PMR.
Mendez and others “threw beer cans and other items at Jimenez
as he tried to hide.” Mendez was present when Valles’s gun
jammed, and Mendez “continued to beat Jimenez while Valles
tried to clear the jam, to the point Jimenez was described as
unconscious and in a fetal position when Valles told others to
hold Jimenez.” Mendez “did not flee when Valles pointed the gun
and shot Jimenez,” instead waiting until after Valles shot
Jimenez to run out of the store.
The court found Mendez’s conduct showed a conscious
disregard for life, reasoning, “If [Mendez] was concerned that his
actions might endanger Jimenez’s life, he would have run out
when he threw items at Jimenez, or at the very least when he
saw Valles with the gun and saw the gun misfire. Instead, he
continued to assault Jimenez on the floor. While it took Valles,
based upon a review of the video, it appeared to be almost
28 seconds to clear the gun and fire.” The court reasoned the
totality of the circumstances, including the “proximity of
8 The trial court observed that “the evidence also suggests
the defendant shared with Valles an expressed intent to kill at
the time Jimenez was attacked,” which would support a first
degree murder conviction, but the People had not presented
sufficient evidence to prove this theory beyond a reasonable
doubt.
14
[Mendez] to Valles as he cleared the gun, . . . [Mendez] leaving
the store with Valles, and [Mendez’s] statement that he was
content with the sentence as long as Jimenez was dead,” was
sufficient to prove Mendez “knew Valles had a gun at some point
during the altercation and that he intended to use the gun on
Jimenez.”
Mendez timely appealed.
DISCUSSION
A. Senate Bill 1437 and Section 1172.6 (Former
Section 1170.95)
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder and significantly limited the scope of the felony-murder
rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v.
Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020)
10 Cal.5th 830, 842-843, 847-848 (Gentile).) Section 188,
subdivision (a)(3), now prohibits imputing malice based solely on
an individual’s participation in a crime and requires proof of
malice to convict a principal of murder except under the revised
felony-murder rule as set forth in section 189, subdivision (e).
That section requires the People to prove specific facts relating to
the defendant’s individual culpability: The defendant was the
actual killer (§ 189, subd. (e)(1)); although not the actual killer,
the defendant, with the intent to kill, assisted in the commission
of the murder (§ 189, subd. (e)(2)); or the defendant was a major
participant in an underlying felony listed in section 189,
subdivision (a), and acted with reckless indifference to human life
“‘as described in subdivision (d) of . . . Section 190.2,’” the felony-
15
murder special-circumstance provision (§ 189, subd. (e)(3)).
(See Strong, at p. 708.)
Senate Bill 1437 also provided a procedure (now codified in
section 1172.6) for 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 under Senate Bill 1437’s changes to
sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; Gentile,
supra, 10 Cal.5th at p. 847.) The ameliorative changes to the law
now apply to attempted murder and voluntary manslaughter.
(§ 1172.6, subd. (a).)
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the court must appoint counsel to represent the
petitioner upon his or her request pursuant to section 1172.6,
subdivision (b)(3). Further, upon the filing of a facially sufficient
petition, the court must direct the prosecutor to file a response to
the petition and permit the petitioner to file a reply, and the
court must determine whether the petitioner has made a prima
facie showing that he or she is entitled to relief. (See § 1172.6,
subd. (c).) Where a petitioner makes the requisite prima facie
showing he or she falls within the provisions of section 1172.6
and is entitled to relief, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1172.6, subds. (c) & (d)(1).)
Section 1172.6, subdivision (d)(3), provides that at the
evidentiary hearing, “the burden of proof shall be on the
16
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” “Thus, ‘it is the [trial] court’s
responsibility to act as independent fact finder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189 and is thus
ineligible for resentencing . . . .’” (People v. Ramirez (2021)
71 Cal.App.5th 970, 984; accord, People v. Henley (2022)
85 Cal.App.5th 1003, 1016; People v. Vargas (2022)
84 Cal.App.5th 943, 951 (Vargas).) “The admission of evidence in
the hearing shall be governed by the Evidence Code, except that
the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed. The court may also consider the procedural history of
the case recited in any prior appellate opinion. . . . The
prosecutor and the petitioner may also offer new or additional
evidence to meet their respective burdens.” (§ 1172.6,
subd. (d)(3); see Henley, at p. 1013; Vargas, at p. 952.)
On appeal from an order denying a section 1172.6 petition,
we review the trial court’s factual findings for substantial
evidence. (People v. Henley, supra, 85 Cal.App.5th at p. 1017;
People v. Ramirez, supra, 71 Cal.App.5th at p. 985.) “‘We “must
review ‘the whole record in the light most favorable to the
judgment’ and decide ‘whether it discloses substantial evidence
. . . such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’”’” (Ramirez, at p. 985
[reviewing for substantial evidence trial court’s factual finding
that petitioner was not eligible relief under former § 1170.95
17
because he was a major participant and acted with reckless
indifference to human life]; accord, Henley, at p. 1017; see People
v. Ghobrial (2018) 5 Cal.5th 250, 277.) “[W]e look to whether the
prosecution has introduced sufficient evidence of ‘“‘reasonable,
credible, and of solid value’”’ to ‘support a finding beyond a
reasonable doubt’ that [petitioner] had the requisite mental
state.” (People v. Clark (2016) 63 Cal.4th 522, 618; accord,
Henley, at p. 1017; Ramirez, at p. 985.)
B. The Trial Court Did Not Err in Admitting Mendez’s
Statements Made During His 2015 Parole Eligibility
Hearing
Mendez contends the court prejudicially erred in admitting
into evidence the statements made by Mendez during his 2015
parole hearing based on the use immunity rule articulated in
People v. Coleman (1975) 13 Cal.3d 867 (Coleman) and its
progeny. We decline to extend Coleman to section 1172.6
evidentiary hearings.
In Coleman, the Supreme Court held a defendant’s
statement at a probation revocation proceeding was not
admissible against him at trial to prove guilt on the related
charges. (Coleman, supra, 13 Cal.3d at p. 889.) The court
reasoned that a defendant should not be forced to choose between
the privilege against self-incrimination at trial and the right to be
heard at a probation revocation hearing. (Id. at p. 878.) To
alleviate the tension between these competing rights, the court
fashioned a “judicial rule of evidence” that a probationer’s
revocation hearing testimony is inadmissible during the
prosecution’s case-in-chief “to encourage the fullest possible
truthful disclosure of relevant facts and circumstances at the
18
revocation hearing by allowing a probationer who does testify at
his revocation hearing nonetheless to enjoy unimpaired the full
protection of the privilege against self-incrimination at his
subsequent trial.” (Id. at pp. 879, 892.)
The Courts of Appeal have uniformly rejected the argument
made by Mendez that Coleman should be extended to bar use of a
defendant’s statements from a parole eligibility hearing in an
evidentiary hearing under section 1172.6. In People v.
Myles (2021) 69 Cal.App.5th 688, 705 (Myles), Division One of the
First Appellate District concluded Coleman did not require
exclusion from the evidentiary hearing of the defendant’s
statements made during a parole eligibility hearing, explaining
that “the Fifth Amendment privilege against self-incrimination
protects persons from being compelled by ‘“governmental
coercion”’ to serve as witnesses against themselves in
“‘“any criminal case,”’” citing People v. Tom (2014) 59 Cal.4th
1210, 1222-1223. By contrast, “a sentence modification
under [former] section 1170.95 is an act of lenity and not a
criminal trial.” (Myles, at pp 705-706.) The court reasoned the
Fifth Amendment’s purpose to protect the defendant from
government coercion was not implicated because the defendant
“was not compelled to file a [resentencing] petition, nor to testify
at her parole hearing . . . .” (Myles, at p. 706.) Rather, where the
defendant had chosen to “testify truthfully at the parole hearing,
it is not fundamentally unfair to admit that information during a
resentencing proceeding voluntarily initiated by defendant
bearing on some of the same issues.” (Ibid.) Other appellate
courts have reached the same conclusion. (See People v.
Duran (2022) 84 Cal.App.5th 920, 930-932 [Second District,
Division 2]; People v. Mitchell (2022) 81 Cal.App.5th 575, 586-590
19
(Mitchell) [Second District, Division 8]; People v. Anderson (2022)
78 Cal.App.5th 81, 93 (Anderson) [First District, Division 4]; but
see Mitchell, at pp. 602-605 (dis. opn. of Stratton, P.J.).)
“The proper interpretation of a statute is a question of law
we review de novo. [Citations.] ‘“‘“As in any case involving
statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s
purpose. [Citation.] We begin by examining the statute’s words,
giving them a plain and commonsense meaning.”’”’ [Citation.]
‘“[W]e look to ‘the entire substance of the statute . . . in order to
determine the scope and purpose of the provision . . . . [Citation.]’
[Citation.] That is, we construe the words in question ‘“in
context, keeping in mind the nature and obvious purpose of the
statute . . . .” [Citation.]’ [Citation.] We must harmonize ‘the
various parts of a statutory enactment . . . by considering the
particular clause or section in the context of the statutory
framework as a whole.’”’” (Lewis, supra, 11 Cal.5th at p. 961;
accord, California Building Industry Assn. v. State Water
Resources Control Bd. (2018) 4 Cal.5th 1032, 1041.)
Mendez urges us to adopt the reasoning in Presiding
Justice Stratton’s dissent in Mitchell that the Legislature
granted section 1172.6 petitioners “the right against self-
incrimination, for it goes hand-in-hand with imposing the burden
of proof on the prosecution.” (Mitchell, supra, 81 Cal.App.5th at
pp. 603-604 (dis. opn. of Stratton, P.J.).) We find the reasoning of
Myles and the other courts that have found no Fifth Amendment
right against self-incrimination in section 1172.6 proceedings
persuasive because the defendant at the time of the evidentiary
hearing stands convicted of murder (or other covered offense), in
contrast to a defendant facing a criminal trial. The Legislature
20
expressly provided in section 1172.6, subdivision (d)(3), that the
prosecution bears the burden to prove beyond a reasonable doubt
the petitioner is guilty of murder under California law as
amended by the changes to sections 188 or 189 made effective
January 1, 2019. Further, subdivision (d)(3) specifies “[t]he
admission of evidence in the hearing shall be governed by the
Evidence Code.” And the Legislature has provided in section
1172.6, subdivision (b)(3), that upon the filing of a facially
sufficient petition, upon request, the court must appoint counsel
for the petitioner. We therefore agree with Justice Stratton’s
observation in her dissent in Mitchell that the Legislature has
extended substantial procedural protections to a section 1172.6
petitioner. (Mitchell, supra, 81 Cal.App.5th at pp. 603-604 (dis.
opn. of Stratton, P.J.).) But it does not follow that the
Legislature intended to afford petitioners who have been validly
convicted of murder a Fifth Amendment right against self-
incrimination in a section 1172.6 proceeding for relief from their
convictions. We do not reach whether there should be a judicially
created right against self-incrimination in an evidentiary hearing
because absent the government coercion at issue under the Fifth
Amendment, there is no justification for extending Coleman to a
section 1172.6 evidentiary hearing.
We also do not agree with the Mitchell dissent that the
Legislature’s assignment of the burden of proof to the prosecution
in an evidentiary hearing means a petitioner must have a right
against self-incrimination. The Mitchell dissent relies for this
proposition on the statement in Coleman, supra, 13 Cal.3d at
page 876 that “‘[t]he heavy burden . . . placed upon the
prosecution in a criminal trial to prove through its own
investigation the guilt of the defendant may be substantially
21
lightened if the prosecution is allowed to take advantage of the
defendant’s testimony at a prior probation revocation hearing.’”
(See Mitchell, supra, 81 Cal.App.5th at p. 604 (dis. opn. of
Stratton, P.J.).) But the Coleman court based its judicially-
created rule on the potential for the People to take advantage of
the probation revocation process to reduce their burden at trial,
explaining “Whenever a probationer is charged with a criminal
offense the People may, by the simple device of moving to revoke
probation prior to trial, seek to force the probationer into a self-
incriminatory statement at the revocation hearing.” (Coleman, at
p. 876.) Further, because the prosecution’s object is “to secure
the probationer’s incarceration, whether by revocation of
probation or by conviction and sentencing for the new
offense,” initiation of a pretrial probation revocation hearing
would put the prosecution in a “‘tails we win, heads you lose’
position vis-a-vis the probationer.” (Ibid.) By contrast, because
Mendez was validly convicted of second degree murder at the
time of his negotiated plea, with only his eligibility for relief from
his conviction in light of the amendments to sections 188 and 189
at issue at the evidentiary hearing, the coercive gamesmanship
that Coleman sought to remedy is not present.
Mendez acknowledges his argument depends on whether
the Legislature granted convicted defendants who file facially
sufficient petitions under section 1172.6 a right against self-
incrimination at the evidentiary hearing to determine their
eligibility for resentencing. But contrary to Mendez’s contention
that the section 1172.6 evidentiary hearing “is analogous . . . to a
bench retrial,” we agree with those Courts of Appeal that have
observed “‘a sentence modification under [section 1172.6] is an
act of lenity and not a criminal trial.’” (Anderson, supra,
22
78 Cal.App.5th at p. 90.) A petitioner under section 1172.6 does
not possess many of the constitutional rights afforded to a
criminal defendant at trial. (See Lewis, supra, 11 Cal.5th at
p. 973 [a petitioner under former section 1170.95 is not
constitutionally entitled to counsel in the proceeding, but rather,
possesses “a purely statutory right to counsel that attaches before
the issuance of an order to show cause”]; People v. James (2021)
63 Cal.App.5th 604, 610 [“a convicted person litigating a [former]
section 1170.95 petition does not enjoy the rights that the Sixth
Amendment guarantees to criminal defendants who have not yet
suffered a final conviction,” including the right to a trial by jury];
People v. Hernandez (2021) 60 Cal.App.5th 94, 111 [“The
retroactive relief provided by section 1170.95 is a legislative ‘act
of lenity’ intended to give defendants serving otherwise final
sentences the benefit of ameliorative changes to applicable
criminal laws and does not result in a new trial or increased
punishment that could implicate the double jeopardy clause.”];
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“the
retroactive relief [defendants] are afforded by Senate Bill 1437 is
not subject to Sixth Amendment analysis”].)
Because Coleman’s exclusionary rule is centered on the
need to protect a defendant’s constitutional privilege against self-
incrimination, and Mendez did not possess that right at the
section 1172.6 evidentiary hearing, his argument to extend
Coleman to bar admission of his statements made at the parole
eligibility hearing fails. (Anderson, supra, 78 Cal.App.5th at
pp. 90, 93 [“Where the privilege against self-incrimination is not
implicated, the rationale for immunities at issue in Coleman . . .
disappears.”].)
23
C. Substantial Evidence Supports the Trial Court’s Finding
Mendez Is Guilty of Second Degree Implied Malice Murder
as a Direct Aider and Abettor
Mendez argues substantial evidence does not support the
trial court’s finding Mendez is guilty of aiding and abetting
implied malice murder because there is no evidence he aided or
encouraged Valles in shooting Jimenez or knew Jimenez was
armed. Mendez asserts further there is no evidence he was
beating Jimenez when Valles shot him, relying on Yoon’s
testimony the two men beating Jimenez behind the counter had
stopped their attack before Valles shot Jimenez in the head and
the prosecutor’s argument at trial that it was Alberto and
Caudillo who were beating Jimenez. Substantial evidence
supports the trial court’s finding.
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) Malice may be express or
implied. (§ 188, subd. (a).) “The primary difference between
express malice and implied malice is that the former requires an
intent to kill but the latter does not.” (People v. Soto (2018)
4 Cal.5th 968, 976; accord, People v. Gonzalez (2012) 54 Cal.4th
643, 653.) “Malice is implied when a person willfully does an act,
the natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious
disregard for the danger to life that the act poses.” (Gonzalez, at
p. 653; accord, Vargas, supra, 84 Cal.App.5th at p. 953.) “A
person who kills unlawfully with implied malice is guilty of
second degree murder.” (Gonzalez, at p. 653.) Section 188,
subdivision (a)(3), “permits a second degree murder conviction
only if the prosecution can prove the defendant acted with the
accompanying mental state of mind of malice aforethought. The
24
prosecution cannot ‘impute[] [malice] to a person based solely on
his or her participation in a crime.’” (Gentile, supra, 10 Cal.5th
at p. 846, quoting § 188, subd. (a)(3); accord, Vargas, at p. 950.)
Thus, “an aider and abettor who does not expressly intend to aid
a killing can still be convicted of second degree murder if the
person knows that his or her conduct endangers the life of
another and acts with conscious disregard for life.” (Gentile, at
p. 850; accord, Vargas, at p. 954 [“The aider and abettor ‘need
only intend the commission of the perpetrator’s act, the natural
and probable consequences of which are dangerous to human life,
intentionally aid in the commission of that act and do so with
conscious disregard for human life.’”].)
Although the jury convicted Valles of first degree murder in
the killing of Jimenez, Mendez may still be validly convicted of
second degree murder as an aider and abettor. (See People v.
McCoy (2001) 25 Cal.4th 1111, 1118 [“‘[O]nce it is proved that
“the principal has caused an actus reus, the liability of each of the
secondary parties should be assessed according to his own mens
rea.”’”]; People v. Nero (2010) 181 Cal.App.4th 504, 514 [an aider
and abettor may harbor a less culpable mental state than the
direct perpetrator].)
Substantial evidence supports the trial court’s finding
Mendez acted with implied malice to directly aid and abet the
murder.9 The evidence is sufficient to prove Mendez acted with
9 In their brief, the People focus on the felony-murder
doctrine, arguing substantial evidence supports a finding Mendez
was a major participant in the attack on Jimenez and acted with
reckless indifference to human life. However, at the evidentiary
hearing the prosecutor did not argue Mendez was guilty of felony
25
conscious disregard for Jimenez’s life in aiding Valles in the life-
endangering conduct of shooting Jimenez, even if Mendez
intended to seriously harm, but not kill Jimenez. The video
shows Mendez was the first of the large group of gang members
to enter the liquor store and the first to throw merchandise at
Jimenez. Mendez, along with Magana, Caudillo, and Alberto,
approached the counter behind which Jimenez was hiding and
threw beer cans and other merchandise at him. Before Mendez
disappears from the camera frame, he can be seen passing
directly in front of Valles while Valles was struggling with both
hands to clear the gun (which had apparently misfired), raising a
strong inference Mendez was aware Valles had a firearm.
Although it is true the video does not show Mendez beating
Jimenez, Mendez admitted at his 2015 parole hearing that he
kicked Jimenez and hit him with his fist. As the trial court
reasoned, Mendez’s beating of Jimenez could have occurred
during the portion of the video while Mendez is off-screen.
Indeed, the beating of Jimenez is not captured in the video.
Thus, the evidence supports the trial court’s finding Mendez
aided Valles’s shooting of Jimenez by isolating and incapacitating
Jimenez behind the counter while Valles prepared to shoot him. 10
murder, and the trial court did not rely on the doctrine in its
ruling.
10 Although the prosecutor at trial argued as to Valles that
Alberto and Caudillo were beating up Jimenez, in the video,
Alberto can be seen walking toward the door while Valles is
attempting to manipulate the slide on the firearm. Although
Alberto then moves to the bottom of the frame, seven seconds
later the gunshot is heard. By contrast, Mendez and Caudillo
cannot be seen once they disappear from view at the bottom of
26
Mendez relies on Yoon’s trial testimony that suggested the
two men were no longer beating Jimenez when Valles pulled the
trigger. But Yoon testified Jimenez appeared to become
unconscious before Valles fired. Thus, the evidence supports the
trial court’s finding Mendez successfully incapacitated Jimenez
by punching and kicking him behind the counter to the point of
unconsciousness, allowing Valles time to unjam the gun and
shoot Jimenez.11 That Mendez did not leave the store until after
Valles shot Jimenez (and was the last one to leave the store
before Valles) further supports the court’s finding Mendez beat
Jimenez to aid Valles in the shooting. The court’s finding
Mendez acted with conscious disregard for Jimenez’s life is also
supported by the letter Mendez wrote to Ralph, stating Mendez
did not “sweat” his sentence because of the fact he is “alive and
that Vato is dead.” And Mendez admitted he was motivated by
the frame until Caudillo reemerges two seconds before the
gunshot is heard (and Mendez reappears only after the gunshot).
11 We recognize the superior court relied on the testimony
adduced at Valles’s trial that Valles ordered the other gang
members to “‘hold the son of a bitch’” (referring to Jimenez) while
Valles cleared the gun. Although this testimony was given after
Mendez pleaded no contest to the charges, Mendez did not object
to the trial court’s consideration of the testimony at the
evidentiary hearing, and he has not argued in his appellate
briefing that the court improperly considered the evidence. He
has therefore forfeited any challenge to consideration of the
evidence. (Lopez v. Ledesma (2022) 12 Cal.5th 848, 866 [“‘[A]
reviewing court ordinarily will not consider a challenge to a
ruling if an objection could have been but was not made in the
trial court.’”]; (People v. Seumanu (2015) 61 Cal.4th 1293, 1318
[failure to raise argument in trial court results in forfeiture on
appeal].)
27
his belief Jimenez had reported the location of homes of 12th
Street gang members (Mendez’s gang) to Jimenez’s relatives, who
were members of the rival PMR gang.
In short, even if Mendez did not enter the liquor store
intending to kill Jimenez, the evidence supports the trial court’s
finding Mendez acted with conscious disregard for Jimenez’s life
in aiding Valles in shooting Jimenez (an act the natural and
probable consequences of which are dangerous to human life) by
attacking Jimenez behind the liquor store counter until he was
rendered unconscious, knowing Valles was clearing his gun to
shoot Jimenez. (See Vargas, supra, 84 Cal.App.5th at p. 954
[substantial evidence supported trial court’s finding at
section 1172.6 hearing that defendant was guilty of implied
malice murder as an aider and abettor where defendant and
shooter associated with the same criminal street gang; the
murder occurred in gang territory; defendant initiated and
escalated physical altercation with victim’s brother by throwing
beer at his head then punching and kicking him; and defendant
encouraged confederate to “‘[s]hoot the motherfucker’” before
shooter fired]; People v. Vizcarra (2022) 84 Cal.App.5th 377, 392
[substantial evidence supported finding defendant was guilty of
implied malice murder as an aider and abettor where defendant
angrily stated he would “‘take care of’” the victim; sought
assistance from his brother-in-law who arrived with additional
confederates; grabbed the victim by the neck and placed him in a
chokehold; dragged him into a bedroom with his confederates;
wrapped victim in a rug and stomped on him; placed a bag over
victim’s head after victim was stabbed; and poured gasoline all
28
over the home where murder occurred to start a fire to hide the
evidence].)12
DISPOSITION
The order denying Mendez’s section 1172.6 petition for
resentencing is affirmed. The trial court is directed to modify the
abstract of judgment to correctly reflect that the one-year term on
the firearm enhancement was stayed, and to forward a copy of
the corrected abstract of judgment to the Department of
Corrections and Rehabilitation.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
12 We do not reach Mendez’s contention, raised for the first
time in his reply, that the trial court erred by failing to consider
his youth at the time of the offense. (Champir, LLC v. Fairbanks
Ranch Assn. (2021) 66 Cal.App.5th 583, 591, fn. 3 [“We do not
consider arguments raised for the first time in the reply brief
without a showing of good cause . . . .”]; Altavion, Inc. v. Konica
Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 63,
fn. 27 [argument made for the first time in reply brief is
forfeited].)
29