People v. Mendoza CA4/2 ( 2023 )

Filed 5/17/23 P. v. Mendoza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075768
v. (Super.Ct.No. FSB03399)
JOSE MENDOZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Dismissed.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant-Appellant Jose Mendoza filed this appeal from the trial court’s denial
of his petition for resentencing under Penal Code section 1172.6,1 which provides relief
for some defendants convicted of murder on a felony murder or natural and probable
consequences theory. Neither he nor his counsel have raised any issues on appeal. We
earlier dismissed this appeal as abandoned, and it has been transferred back to us by our
Supreme Court following People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). With
no briefs filed after a fresh opportunity to raise issues following the transfer, we again
dismiss the case as abandoned.
ANALYSIS
Effective at the beginning of 2019, the Legislature enacted Senate Bill No. 1437,
which reformed our state’s murder law and included section 1172.6 as a means for
defendants who could not be convicted of murder under the current law to petition to
have their conviction vacated. Under section 1172.6, defendants can obtain relief if they
were “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.” (§ 1172.6, subd. (a).) But Senate Bill No. 1437 “does
not eliminate direct aiding and abetting liability for murder because a direct aider and
abettor to murder must possess malice aforethought.” (People v. Gentile (2020) 10
Cal.5th 830, 848.)
1Unlabeled statutory citations refer to the Penal Code. Section 1172.6 formerly
was codified as Section 1170.95 but we will use the current section number here.
2
Mendoza was convicted of first-degree murder by a jury in 1994. In an August
13, 1997 opinion, we upheld the conviction on direct appeal. (People v. Mendoza,
E015601.)
Our opinion laid out facts about the murder, in which a victim was killed while in
a car at a gas station parking lot. Mendoza told the driver of the victim’s car: “Leave. If
not, we are going to shoot at you.” The driver then accidentally put the car in drive,
rather than reverse, and hit Mendoza’s car. Mendoza became angry, and tried to take the
driver’s keys. Then Mendoza angrily asked his cousin if he had a gun, and, upon an
affirmative answer, told his cousin to “[s]moke” the people in the victim’s car. The
cousin fired several shots at the car, killing the victim.
Our opinion explained that Mendoza’s jury was instructed on a theory of directly
aiding and abetting a first-degree murder. We explained that the prosecution did not rely
on a natural and probable consequences theory: “the existence of an uncharged target
offense was not part of the prosecution’s theory and no substantial evidence supported
it.” We explained that the prosecutor argued that Mendoza, with premeditation and
deliberation, aided his cousin in the murder.
Mendoza filed his petition under section 1172.6 in 2019. After taking submissions
from the parties and determining that neither party wished to submit additional evidence,
the trial court denied the petition. The court stated: “the defendant was convicted as a
direct aider and abetter [of] first degree murder. That’s the only interpretation that the
Court can come to based on the record. . . .”
3
On appeal from that denial, Mendoza’s counsel filed a no-issue brief under Anders
v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436. We
offered Mendoza an opportunity to personally file a supplemental brief. He did not do
so. On April 16, 2021, we ordered the case dismissed as abandoned because neither
defendant nor his counsel had raised any issues. We noted that “[o]ur opinion in his
direct appeal held that he was convicted of directly aiding and abetting the shooter, as
that was the only argument made at his trial.”
Following a petition for review, our Supreme Court transferred the case back to us
to reconsider in light of Delgadillo. We then gave the People, Mendoza’s counsel, and
Mendoza personally, the opportunity to file additional briefing. No additional briefs were
filed.
Under Delgadillo, if, in a criminal appeal from a post-judgment ruling, no issues
are raised by counsel and the defendant does not personally file a supplemental brief, “the
Court of Appeal may dismiss the appeal as abandoned [and] does not need to write an
opinion. . . .” (Delgadillo, supra, 14 Cal.5th at p. 232.) However, if the defendant “files
a supplemental brief or letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.” (Id. at p. 232.)
Because defendant raised no issues in this appeal, we dismiss the appeal as
abandoned. We again note that, according to our opinion on direct appeal, defendant was
convicted of murder on a theory of directly aiding and abetting a murder. We issue this
4
disposition with an opinion, rather than an order, to provide an accessible record of a case
transferred from our Supreme Court.
DISPOSITION
We dismiss this appeal as abandoned.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
5