People v. Mendez CA2/7

Filed 2/11/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B299684

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, Steven D. Blades, Judge. Reversed and
remanded with directions.
Robert E. Boyce, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Lindsay Boyd, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________
 In 1990 Gabriel 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 Penal Code section 1170.951 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.
The superior court summarily denied Mendez’s petition without
first appointing counsel, finding the facts at trial showed Mendez
had been convicted as a direct aider and abettor with the intent
to kill and therefore he was ineligible for relief.
On appeal Mendez contends he made a prima facie showing
of entitlement to relief based on his averments he did not have
the intent to kill, was not aware the shooter had a gun, and was
prosecuted under the natural and probable consequences
doctrine. It is undisputed Mendez was not the actual killer, and
nothing in his record of conviction establishes as a matter of law
he had the intent to kill. We reverse the superior court’s
postjudgment order and remand with directions for the superior
court to appoint counsel for Mendez, to issue an order to show
cause, and to hold a hearing to determine whether to vacate
Mendez’s murder conviction.

1 All statutory references are to the Penal Code.

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 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)
(Valles):2
“Sometime after midnight on May 12, 1990, two carloads of
youths pulled into the parking lot of Discount Liquor in Pomona.
The youths shouted slurs and 12th Street gang slogans and made
gang signs with their hands. The victim, Jessie Jimenez, and a
female companion had just completed a purchase inside the store.
[Jimenez] left the store but immediately ran back inside when
the youths threw beer cans at him and started chasing him.
“Appellant Mendez and co-defendants Ramon Magana and
Richard Ortega belonged to the 12th Street gang. Appellant
[Ricardo] Valles and co-defendants Alberto Valles and Victor
Caudillo belonged to the Pomona Sur gang. [Jimenez’s] family
members were associated with the Pomona Michoacan Rifa, a
rival gang to both the 12th Street and Pomona Sur gangs.
“The youths, including appellant Mendez, followed
[Jimenez] inside the store and started beating and kicking him.[3]

2 Mendez was only present for a portion of the trial
testimony because he entered a plea to second degree murder on
the fourth day of trial. Therefore, at most only a portion of the
trial testimony is part of Mendez’s record of conviction. However,
we discuss the facts adduced at trial because Mendez relies on
those facts instead of citing to the preliminary hearing testimony.
3 Although we concluded in Valles that Mendez was part of
the group beating and kicking Jimenez, Mendez in his opening
brief cites to trial testimony in which a witness to the shooting

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[Jimenez] sought refuge behind the cashier’s counter. The youths
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. One of the youths yelled ‘Twelve’ in
Spanish and another made a gang sign.” (Valles, supra,
B058344.)
“Appellant Valles pulled out a gun, leaned over the counter
and prepared to fire the gun at [Jimenez].” (Valles, supra,
B058344.) However, the gun jammed, and Magana came from
behind the counter, pushed Ricardo Valles (Valles), and said,
“Let’s get out of here now.” Valles resisted, responding “[g]et out
of here” and “[g]et away.” Valles then unjammed the gun and
fired it 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
Valles, 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 the 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

said only two men were kicking and beating Jimenez and the
prosecutor’s argument that the two men were Alberto Valles and
Caudillo.

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in association with a criminal street gang within the meaning of
Penal Code section 186.22, subdivision (b)(2). (Valles, supra,
B058344.)
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.”
The trial court sentenced Mendez pursuant to the
negotiated plea to 15 years to life for second degree murder and
imposed and stayed a one-year term for the firearm

5
enhancement.4 The court dismissed the remaining allegations.
Mendez did not attend the remainder of the trial.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 2d degree murder in lieu of going to trial because
[he] believed [he] could have been convicted of 1st or 2d degree
murder at trial pursuant to the felony murder rule or the natural

4 The abstract of judgment reflects that the one-year term on
the firearm enhancement was imposed. However, at sentencing
the trial court stayed the firearm enhancement as part of the
negotiated plea. On remand, if Mendez’s conviction is not
vacated, the superior court should modify the abstract of
judgment to correctly reflect the sentence imposed.
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. (Valles, supra, B058344.) On
appeal, we affirmed Valles’s judgment of conviction, but we
concluded as to Mendez the trial court had violated his plea
agreement because it discussed with Mendez at the time of his
plea that his parole term would be limited to five years although
the Board of Prison Terms had authority to place Mendez on
parole for up to life. (Ibid.) 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.

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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 to second degree
murder based on the natural and probable consequences doctrine,
he had no intent to kill, he was 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.”
Further, Mendez asserts the videotape shows that Valles told his
confederates during the incident, “Get out of here.”
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 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. In their
response the People pointed to Mendez’s statement at his 2015
parole hearing: “I realize that I was just as culpable because I
was actively involved in the crime and I set in motion the events
that caused Jessie Jimenez’s death.” The People also quoted the
letter the trial court read at sentencing in which Mendez wrote to

7
a friend he was comfortable with his sentence as long as he knew
“Vato” was dead.
Mendez, representing himself, submitted a reply to the
People’s response (marked received by the court), arguing he had
a right to counsel and an evidentiary hearing. He asserted that
before the shooting Magana pushed Valles and said, “Let’s get
out of here now,” and in response Valles told his confederates to
“[g]et out of here.” Mendez also argued based on the trial
transcript that before Valles shot Jimenez, the two people who
had been fighting Jimenez (arguably including Mendez) had
already left. The cited transcript reads:
“Q: When the person shot the pistol, the two people that
were fighting with this man, had they already left?
“A: Yes.”
Mendez argued the target offense was an assault and
Mendez did not have the intent to kill. Mendez also objected to
the court considering the letter from Mendez and the parole
hearing transcripts.
On May 24, 2019 the superior court summarily denied
Mendez’s petition for resentencing.6 The court stated it had
considered Mendez’s petition and the People’s response, but it
was “unnecessary for Petitioner to file a Reply because the record
is clear that he does not qualify for resentencing.” The court did
not appoint counsel for Mendez. In denying Mendez’s petition,
the court explained, citing to the People’s response, “Petitioner
was convicted of second degree murder based upon his plea of no
contest in 1990 during the middle of his criminal trial. He was

6 Judge Steven D. Blades ruled on the petition. Judge
Gregory C. O’Brien presided over the trial but retired in 2005.

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sentenced to 15 years to life in state prison. Co-defendant Valles
was convicted by a jury of first degree murder and conspiracy to
commit murder. The underlying facts make it clear that the
murder was intentional and the motive was for the benefit of his
gang and to obtain vengeance against rival gang members. . . .
Petitioner admitted that he ‘was just as culpable because I was
actively involved in the crime and I set in motion the events that
caused [the victim’s] death.’. . . Petitioner was not convicted
under the theories of [f]elony [m]urder or [n]atural and [p]robable
[c]onsequences.” On July 15, 2019 Mendez submitted a reply
brief, which the court marked received. On August 12, 2019 the
superior court issued an order nunc pro tunc indicating it had
reviewed Mendez’s reply brief. The court did not otherwise
modify its ruling.
Mendez timely appealed.

DISCUSSION

A. Senate Bill 1437
On September 30, 2018 Senate Bill 1437 was signed into
law, effective January 1, 2019. Senate Bill 1437 was enacted to
“amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Sen. Bill 1437 (2017-2018 Reg.
Sess.) § 1; see People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 325
(Verdugo), review granted Mar. 18, 2020, S260493.)

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 To accomplish this purpose, the Legislature added section
188, subdivision (a)(3), and section 189, subdivision (e). (Gentile,
supra, 10 Cal.5th at pp. 842-843.) New section 188, subdivision
(a)(3), effectively “eliminates natural and probable consequences
liability for murder regardless of degree.” (Gentile, at pp. 847-
848.) New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” New section 189, subdivision (e), in
turn, limits the exception to the malice requirement under the
felony-murder rule to circumstances where the People prove the
defendant “was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”7
Senate Bill 1437 also provides a procedure in new section
1170.95 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

7 New section 189, subdivision (e), provides, “A participant in
the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.”

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of murder under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4; see Gentile,
supra, 10 Cal.5th at p. 847.) “If the petition contains all required
information, section 1170.95, subdivision (c), prescribes a two-
step process for the court to determine if an order to show cause
should issue: ‘The court shall review the petition and determine
if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. The prosecutor shall file and serve a
response . . . and the petitioner may file and serve a reply . . . . If
the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.’”
(Verdugo, supra, 44 Cal.App.5th at p. 327, review granted;
accord, People v. Perez (2020) 54 Cal.App.5th 896, 903 (Perez),
review granted Dec. 9, 2020, S265254; People v. Nguyen (2020)
53 Cal.App.5th 1154, 1165 (Nguyen); People v. Tarkington (2020)
49 Cal.App.5th 892, 900-901 (Tarkington), review granted
Aug. 12, 2020, S263219; but see People v. Cooper (2020)
54 Cal.App.5th 106, 123, review granted Nov. 10, 2020, S264684
[once the trial court determines the petition contains the required
information, the court performs a single prima facie review, and
if the defendant makes a prima facie showing of entitlement to
relief, the court issues an order to show cause].)
“In determining whether the petitioner has made a prima
facie showing that he or she is entitled to relief under section
1170.95, subdivision (c), ‘[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is

11
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record “contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.” [Citation.]
However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
subd. (d) is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of
discretion . . . .’” (Perez, supra, 54 Cal.App.5th at pp. 903-904,
review granted [trial court properly considered preliminary
hearing transcript in determining defendant pleaded no contest
to second degree murder based on a theory he was the actual
killer], quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980
(Drayton) [superior court erred in denying petition without
evidentiary hearing where preliminary hearing transcript
showed petitioner was not the actual shooter and there was no
finding he was a major participant in the underlying robbery or
acted with reckless indifference to human life]; accord, Nguyen,
supra, 53 Cal.App.5th at p. 1166 [preliminary and plea hearing
transcripts demonstrated petitioner pleaded guilty as a direct
aider and abettor of second degree murder where he stipulated
the factual basis for his guilty plea was the preliminary hearing
and there was no testimony at the preliminary hearing about an
underlying felony or mention of felony murder or the natural and
probable consequences doctrine].)
After issuing an order to show cause, the trial court must
hold a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the

12
petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) If
a hearing is held, “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
Tarkington, supra, 49 Cal.App.5th at pp. 898-899, review
granted; People v. Lewis (2020) 43 Cal.App.5th 1128, review
granted Mar. 18, 2020, S260598.)8 The prosecution has the
burden of proving beyond a reasonable doubt the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).)

B. The Superior Court Erred in Finding Mendez Is Ineligible
for Relief as a Matter of Law
Mendez contends the superior court should have accepted
as true his averments that he did not share Valles’s intent to kill
and instead was convicted under the natural and probable
consequences doctrine. The People argue Mendez’s record of
conviction shows Mendez was prosecuted for murder based on a
theory of actual malice, noting Mendez was charged in the
information with commission of first degree murder “with malice
aforethought” and conspiracy to commit murder. Further, the
People argue the preliminary hearing transcript shows the
People’s theory was that Jimenez was targeted in retaliation for

8 The Supreme Court in People v. Lewis limited briefing and
argument to the following issues: “(1) May superior courts
consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]” (Supreme Ct. Minutes, Mar. 18, 2020, p. 364;
People v. Lewis, supra, 43 Cal.App.5th 1128, review granted.)

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actions taken by Jimenez’s family who were rival gang members.
We agree with Mendez the superior court erred in failing to
appoint counsel for him and failing to issue an order to show
cause.
Mendez made a prima facie showing he was entitled to
relief under section 1170.95. He stated in his declaration he
pleaded no contest to second degree murder because he believed
he could have been convicted of murder at trial under the natural
and probable consequences doctrine; he could not now be
convicted of second degree murder because of changes made to
the law; and he was “unaware that the actual killer had a
firearm” (thus negating any intent to kill). The superior court
was required to “accept the assertions in the petition as true
unless facts in the record conclusively refute them as a matter of
law.” (Drayton, supra, 47 Cal.App.5th at p. 968.) The record of
conviction does not conclusively show as a matter of law Mendez
harbored an intent to kill. Contrary to the People’s argument,
the fact Mendez was initially charged with first degree murder
committed with malice aforethought does not mean his conviction
of second degree murder was based on malice aforethought, and
the charge he conspired to commit murder was dismissed.
Further, unlike Perez, supra, 54 Cal.App.5th at pages 906 to 907,
review granted, in which the defendant was not charged with an
underlying crime that could have supported a conviction under a
felony murder or natural and probable consequences theory,
Mendez was charged with conspiracy to commit assault with a
deadly weapon. The People’s argument this charge “was likely
presented as a lesser included offense of conspiracy to commit
murder” is pure speculation.

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 Moreover, the testimony at trial was consistent with a
theory Mendez intended to assault Jimenez (not kill him) to
retaliate against Jimenez’s family’s members, who were in a rival
gang. Mendez threw beer cans at Jimenez and possibly kicked
and beat him (which is disputed) as Jimenez hid behind the
counter, but there was no evidence Mendez had a gun or in any
way urged Valles to shoot Jimenez. Further, Mendez’s fellow
gang member Magana pushed Valles after Valles’s gun jammed,
and Magana urged Valles to leave, saying, “Let’s get out of here
now.” And, as Mendez stated in his declaration, he did not know
before the shooting that Valles brought a gun. There is no
evidence to the contrary. Indeed, Valles and Mendez were from
different gangs and arrived in separate cars.9
The Court of Appeal’s decision in Drayton, supra,
47 Cal.App.5th 965 is directly on point. There, four men,
including petitioner John Drayton, entered a house to commit a
robbery while three family members were asleep. During the
robbery, Drayton held down the wife and hit her in the head with
his gun; a confederate shot and killed her husband. (Id. at

9 The People also rely on Mendez’s statement in a letter to
“Ralph” that the trial court considered at sentencing, which
stated Mendez did not “sweat” his sentence as long as he knew he
was “alive and that Vato is dead.” But this statement was
hearsay considered only by the trial court in the context of
sentencing. Further, any statement that Mendez was happy
Jimenez was dead did not mean on the day of the shooting
Mendez had the intent to kill him. The People’s reliance on
statements made by Mendez during his 2015 parole hearing is
similarly misplaced. Those statements are not part of Mendez’s
record of conviction, and the court erred in considering them as
part of its prima facie review.

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pp. 968-969.) Drayton later entered a negotiated plea to felony
murder. (Id. at p. 969.) In his petition for resentencing, Drayton
declared he was eligible for resentencing because he was not a
major participant in the felony and did not act with reckless
indifference to human life. (Id. at p. 970.) The superior court
denied the petition on the ground the preliminary hearing
testimony showed Drayton was a major participant in the
burglary and robbery and acted with reckless indifference to
human life. (Id. at p. 982.) The Court of Appeal reversed,
concluding the superior court erred by not accepting Drayton’s
asserted facts as true and instead weighing the evidence before
issuing an order to show cause. (Ibid.) The trial court here
similarly erred in rejecting Mendez’s statements in his
declaration and instead concluding based on its own review of the
facts at trial that “the murder was intentional” and Mendez was
not convicted under the natural and probable consequences
doctrine.
Therefore, Mendez made a prima facie showing he fell
within the provisions of section 1170.95, and the superior court
was required to appoint counsel for him.10 (Perez, supra,
54 Cal.App.5th at p. 903, review granted; Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) Further, Mendez
made a prima facie showing he was entitled to relief based on the
same averments that show he did not intend to kill Jimenez.
Accordingly, the court should have issued an order to show cause.

10 The superior court also should have also allowed Mendez—
assisted by counsel—to file a reply brief. Because we conclude
the superior court must issue an order to show cause, Mendez’s
attorney will have another opportunity for briefing.

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(Perez, at p. 903, review granted; Verdugo, at p. 327, review
granted.)

DISPOSITION

The order denying Mendez’s petition for resentencing under
section 1170.95 is reversed. We remand for the superior court (1)
to appoint counsel for Mendez, (2) to issue an order to show
cause, and (3) to hold a hearing to determine whether to vacate
Mendez’s conviction.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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