People v. Mendez CA4/2

Filed 6/23/23 P. v. Mendez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080256
v. (Super.Ct.No. FWV17000794)
AURELIANO MENDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed.
Aureliano Mendez, in pro. per.; Allen G. Weinberg, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Aureliano Mendez appeals the order of the San
Bernardino County Superior Court denying his petition for resentencing made pursuant to
section 1172.6.1
BACKGROUND
In April 2018, a jury found defendant and his codefendant, David Ernesto Avina,
guilty of first degree murder (§ 187, subd. (a)) and participation in a criminal street gang
with a gang enhancement (§ 186.22, subds. (a) & (b)(1)(C)). It also found true an
enhancement for the personal and intentional discharge of a firearm by a principal that
caused death of a person other than an accomplice. (§ 12022.53, subds. (d) & (e)(1).)
The court sentenced each of them to a state prison term of 50 years to life. Defendant
and Avina appealed from the judgment. (People v. Avina, et al. (June 15, 2020,
E070428) [nonpub. opn.].) We modified the sentence to strike a 10-year stayed term for
the gang enhancement and affirmed. (Ibid.)
In October 2022, defendant filed a petition for resentencing pursuant to section
1172.6. At the eligibility hearing, the trial court found defendant did not meet the criteria
for relief because the court’s records established (i) he was convicted under a theory of
direct aiding and abetting with the intent to commit murder, and (ii) the jury had not been
given instructions on the felony-murder rule or the natural and probable consequences
doctrine. Defendant timely noticed this appeal.
1 Section 1170.95 was renumbered as section 1172.6 without change in the text,
effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to
the provision by its new numbering. All further statutory references are to the Penal
Code.
2
Defendant’s appointed appellate counsel filed an opening brief that sets forth
statements of the case and facts but does not present any issues for adjudication. Counsel
requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216 to
conduct an independent review of the record. The brief lists the following issues
considered by counsel: (i) whether the petition established a prima facie showing of
eligibility for section 1172.6 relief such that the court should have issued an order to
show cause; (ii) whether the trial court engaged in impermissible factfinding; (iii)
whether the court relied on its recollection of the facts adduced at trial; and, (iv) whether
subdivision (c) of section 1172.6 required the court fully set forth in writing its reasons
for denying the petition.
Upon receipt of the opening brief, we notified defendant of his counsel’s inability
to find an arguable issue, advised him we are not required to conduct an independent
review of the record, and invited him to file any arguments he deemed necessary.
DISCUSSION
In his handwritten letter submitted in response to our invitation, defendant makes
several claims in support of his request that we remand his case for a new hearing on the
issue whether his petition states a prima facie case for resentencing relief pursuant to
section 1172.6. We are not persuaded.
First, defendant asserts the court lied when it said defendant was in state prison at
the time it set defendant’s petition for a determination of his eligibility for section 1172.6
relief. It appears defendant was not in prison but rather was housed in a county detention
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center awaiting trial on another matter at the time his petition was filed and heard. There
is no indication in the record, and we discern no reason to conclude, that the court
intentionally misrepresented defendant’s whereabouts. Moreover, his counsel was aware
of his location and defendant does not claim—and we do not find—that he was
prejudiced by the statement.
Second, defendant complains the court waived his presence when it set the
eligibility hearing, and did so without his knowledge or consent or his counsel’s
approval. The record does not contain a formal waiver by defendant or his counsel. It
does reflect, however, that his counsel was provided with a copy of the minutes and
petition. Counsel neither requested an order to have defendant transported nor objected
to the court going forward with the eligibility determination in his absence.
We need not address here whether the court was required to obtain a specific
waiver of defendant’s presence on the record or whether he had a constitutional right to
attend absent a waiver because any error in the conduct of the hearing without his
presence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18; People v. Basler (2022) 80 Cal.App.5th 46, 51, 57-58.) There is nothing
defendant could have contributed to the hearing that would have changed the result in
view of the jury instructions given at his trial or the jury’s verdict finding him guilty of
first degree murder because of his participation as a direct aider and abettor.
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Third, defendant claims he was not provided effective assistance of counsel at the
hearing. He argues his counsel and counsel for the People did not know anything about
the case because they were not the attorneys who tried the case, and complains counsel
did not submit briefing, request additional time to properly prepare for the hearing, or
argue his petition should be granted. There is nothing in the record to suggest counsel
was not familiar with the defendant’s case. Briefing is not required if, as here, the court
appointed counsel and afforded the opportunity for briefing, and the record refutes the
petition’s allegations. (See People v. Lewis (2021) 11 Cal.5th 952, 970-971.) And,
because the record establishes defendant was convicted on the theory that he directly
aided and abetted with the intent to commit murder, his counsel’s submission of the
matter was entirely appropriate.
Fourth, defendant states he did not ask for appointment of appellate counsel.
Defendant overlooks the fact his notice of appeal includes a request for counsel and, in all
events, he does not claim he suffered any prejudice from the appointment.
Fifth and last, defendant argues the trial court’s failure to order briefing and
conduct an evidentiary hearing foreclosed his ability to present his claim that the only
evidence he participated in the crime was an illegally obtained recording of his
conversation with a jailhouse informant and, therefore, he is entitled to resentencing.
As we have explained ante, the jury found defendant directly aided and abetted
Avina with the intent to commit murder, that is, malice was not imputed to him. We note
as well that, in defendant’s appeal from the judgment, we considered and rejected the
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argument that the recording of defendant violated the confrontation clause and held it was
properly admitted into evidence. (Avina, supra, E070428.)
DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
SLOUGH
J.
MENETREZ
J.
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