State v. Mendoza

NOT DESIGNATED FOR PUBLICATION

No. 122,476

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ELI MENDOZA,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed November 5,
2021. Affirmed.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., POWELL and CLINE, JJ.

PER CURIAM: Eli Mendoza appeals following his convictions of attempted first-
degree murder, aggravated robbery, criminal possession of a weapon by a convicted
felon, aggravated domestic battery, and criminal threat. Mendoza claims: (1) The district
court erred when it refused to instruct the jury on the lesser included offense of attempted
voluntary manslaughter; (2) the district court erred when it calculated his criminal history
score; and (3) the use of judicial findings of prior convictions to increase his sentence
violated section 5 of the Kansas Constitution Bill of Rights. Finding no reversible error,
we affirm the district court's judgment.

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 FACTUAL AND PROCEDURAL BACKGROUND

This case arises from two incidents involving Mendoza and his former girlfriend,
S.G. Mendoza and S.G. dated for a couple of months and S.G. sometimes spent the night
at Mendoza's home. In the early morning hours of August 4, 2018, S.G. received a phone
call from a friend asking if she was all right because of her recent homelessness. S.G. told
the friend she was with Mendoza. Mendoza suspected S.G. was cheating on him and
confronted her about those suspicions. S.G. later testified that Mendoza put his hands
around her neck so that she could not breathe. She also told dispatch that Mendoza hit her
several times with a closed fist and refused to let her leave the room. S.G. eventually
freed herself and Mendoza chased her as she ran from the house to her car. While S.G.
started her SUV, Mendoza slashed one of the tires. S.G. drove on the flat tire to a gas
station to call her friend and 911. Because it was a busy night for local police, S.G. had to
call 911 a second time to request emergency medical services for her pain.

EMS took S.G. to the hospital where a nurse photographed her injuries. Her
injuries included: (1) bruising in and around her eyes, behind an ear, and to her face; and
(2) petechial hemorrhages behind an ear and in multiple locations inside her mouth.
Sexual Assault Nurse Examiner Cara Brunswig considered S.G.'s injuries consistent with
her report of having been strangled and sustaining blunt force trauma to her face.

After this incident, Mendoza threatened to self-harm and sent S.G. a picture of
himself with a gun to his head. Sometime between August 4 and August 9, Mendoza and
S.G. met at a park to exchange a work shirt of S.G.'s, but she left when she thought
Mendoza was acting "suspicious."

On August 9, 2018, Mendoza asked S.G. for a ride to work. S.G. testified she had
given Mendoza many rides to work. On the way to work, Mendoza and S.G. disagreed on
the best route to take to get to Mendoza's job. A brief time later, Mendoza took S.G.'s cell

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phone off the car charger and put it in his bag. S.G. told Mendoza to return her cell phone
and stopped the SUV in the middle of the street waiting for Mendoza to return the phone.
S.G. testified that at that point, Mendoza told her he would shoot her, that he had bullets,
and to "fucking drive." She also testified Mendoza said, "'Drive or I'm going to shoot
you.'" When S.G. asked him why he would want to shoot her, Mendoza pulled a revolver
from his bag. He pointed the gun at her face and said he would kill her.

S.G. tried to knock the gun away when Mendoza fired the gun, hitting S.G. in the
chest. S.G. tried to leave the car but struggled with the seatbelt. After she reached into the
backseat for her purse and pulled it forward up to her face, Mendoza fired the gun again,
this time hitting S.G. in the right arm. She escaped the car by sliding to the ground then
ran down the street toward an approaching pickup truck. When she glanced back to the
SUV, she saw Mendoza get into the driver's seat and drive away. The driver of the pickup
truck helped S.G. and called 911. Mendoza later abandoned the SUV in an alley. Police
arrested Mendoza several days later in New Mexico.

The State charged Mendoza with one count each of attempted first-degree murder,
aggravated robbery, criminal possession of a weapon by a convicted felon, aggravated
domestic battery, criminal damage to property, and criminal threat. Mendoza pled not
guilty and requested a jury trial.

S.G. testified at the trial. The State also called several witnesses who lived or
worked near the shooting incident on August 9, 2018, and these witnesses described what
they saw and heard. The State also called as witnesses several law enforcement officers
who investigated the crimes. Dr. Jordan Groskurth testified the bullet that entered S.G.'s
right arm fragmented and left her with nerve damage. He testified S.G.'s other gunshot
wound appeared to resemble a through and through wound because the breast exhibited
two wounds and an x-ray of S.G.'s chest revealed her chest was free of bullet fragments.
Brunswig also testified for the State about S.G.'s injuries on August 4.

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 Mendoza did not testify at trial. Through his counsel's closing argument, Mendoza
admitted he argued with S.G. on August 4 but argued that her injuries were not consistent
with someone who had been beaten and choked. As for the August 9 incident, Mendoza
admitted pulling a gun on S.G. but argued the evidence showed the gun fired accidently
both when S.G. tried to knock it away and when S.G. pulled her purse from the backseat.
Mendoza's defense was that the State failed to prove premeditation and an intent to kill.

The district court instructed the jury on the lesser included offense of attempted
second-degree murder. Mendoza requested an instruction on the lesser included offense
of attempted voluntary manslaughter. The district court denied Mendoza's request,
finding the instruction not factually appropriate. The jury acquitted Mendoza of criminal
damage to property but convicted him of attempted first-degree murder and the remaining
charges. The jury found the crimes of attempted first-degree murder, aggravated robbery,
and criminal threat were acts of domestic violence.

Before sentencing, Mendoza objected to his criminal history in his presentence
investigation (PSI) report. Mendoza objected to two New Mexico convictions of
aggravated assault against a household member from being scored as person felonies. He
also objected to his Kansas criminal threat conviction, which the State conceded was for
reckless criminal threat, from being included in his criminal history based on State v.
Boettger, 310 Kan. 800, 823, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1959 (2020).

At sentencing, the district court overruled Mendoza's objections to his criminal
history and sentenced him based on his criminal history score of A. The district court
overruled the objection to scoring the reckless criminal threat conviction because the
Kansas Supreme Court had not issued the mandate for the Boettger decision. The district
sentenced Mendoza to a controlling term of 666 months' imprisonment with 36 months'
postrelease supervision. Mendoza timely appealed the district court's judgment.

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DID THE DISTRICT COURT ERR IN DENYING MENDOZA'S REQUEST TO INSTRUCT THE JURY
ON ATTEMPTED VOLUNTARY MANSLAUGHTER?

Mendoza first claims the district court erred when it refused to instruct the jury on
the lesser included offense of attempted voluntary manslaughter. More specifically,
Mendoza argues the evidence shows that the shooting incident occurred upon a sudden
quarrel or in the heat of passion. The State responds that an instruction on attempted
voluntary manslaughter was not factually appropriate. Alternatively, the State argues that
any error in not instructing on attempted voluntary manslaughter was harmless.

"When analyzing jury instruction issues, we follow a three-step process:
'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

At the second step, appellate courts consider whether the instruction was legally
and factually appropriate. 307 Kan. at 318. Appellate courts use unlimited review to
determine whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924,
931, 376 P.3d 70 (2016). When evaluating whether a lesser included instruction is
factually appropriate in the individual case, courts use the following test: "Is there some
evidence when viewed in the light most favorable to the defendant that would allow a
rational factfinder to find the defendant guilty of the lesser included offense?" McLinn,
307 Kan. at 324-25; see K.S.A. 2018 Supp. 22-3414(3).

The district court must instruct the jury on lesser included offenses even if the
evidence is weak or inconclusive. State v. Maestas, 298 Kan. 765, 779, 316 P.3d 724
(2014). If the defendant requested the instruction, the district court's failure to give it is
grounds for reversal unless the State shows that there is no reasonable probability the

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absence of error would have changed the jury's verdict. State v. Gentry, 310 Kan. 715,
720-21, 449 P.3d 429 (2019).

Generally, an appellant must preserve an issue for appeal in the district court by
requesting an instruction or objecting to the district court's denial of his or her request.
See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Mendoza preserved the jury
instruction claim by both requesting the attempted voluntary manslaughter instruction
and objecting on the record to the district court's denial of his request.

Voluntary manslaughter is "knowingly killing a human being committed: (1)
Upon a sudden quarrel or in the heat of passion; or (2) upon an unreasonable but honest
belief that circumstances existed that justified use of deadly force." K.S.A. 2018 Supp.
21-5404(a). The core elements of voluntary manslaughter are an intentional killing and
legally sufficient provocation. State v. Campbell, 308 Kan. 763, 775, 423 P.3d 539
(2018). Our Supreme Court has determined voluntary manslaughter to be a lesser
included offense of premeditated first-degree murder. 308 Kan. at 775. Thus, an
attempted voluntary manslaughter jury instruction would have been legally appropriate.

Mendoza's entire argument in his brief that an instruction on attempted voluntary
manslaughter would have been factually appropriate is as follows:

"The evidence showed [S.G.] and Mr. Mendoza argued before the shooting. They
had another loud, physical altercation days before the shooting when Mr. Mendoza
suspected [S.G.] of cheating. A reasonable jury could infer that this fight in the car took
the same tenor as the earlier altercation, and that Mr. Mendoza acted impulsively, without
reflection and in the heat of passion."

To determine whether the instruction was factually appropriate, this court must
consider what constitutes "sudden quarrel" or "'heat of passion.'" See State v. Hayes, 299
Kan. 861, 865-66, 322 P.3d 414 (2014). To claim someone killed in the "'heat of
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passion,'" there must be adequate provocation under the law. 299 Kan. at 864. When
reviewing whether provocation was legally sufficient, an objective standard is used. 299
Kan. at 864. "Heat of passion" is "'any intense or vehement emotional excitement of the
kind prompting violent and aggressive action, such as rage, anger, hatred, furious
resentment, fright, or terror,' based 'on impulse without reflection.'" 299 Kan. at 864.

Caselaw is clear that the provocation must be severe—it must be calculated to
deprive a reasonable person of self-control and to cause that person to act out of passion
rather than reason. And it must consist of more than mere words or gestures to be legally
sufficient. State v. Robertson, 279 Kan. 291, 306, 109 P.3d 1174 (2005). Similarly, mere
evidence of an altercation does not alone support a finding of sufficient provocation.
State v. Mitchell, 269 Kan. 349, 353, 7 P.3d 1135 (2000).

A person does not kill in the "heat of passion" if sufficient time has elapsed
between the alleged provocation and the killing or attempted killing for an ordinary
person to regain reason. See State v. Follin, 263 Kan. 28, 38, 947 P.2d 8 (1997). The
defendant's emotional state of mind must have existed at the time of the act. State v.
Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). And when it is not unusual for the
victim and the defendant to argue, the Kansas Supreme Court considers the recurring
nature of an argument as tending to "negate the 'sudden' aspect of sudden quarrel; the
argument did not happen 'without warning' and was foreseeable." State v. Bernhardt, 304
Kan. 460, 477, 372 P.3d 1161 (2016).

In State v. Northcutt, 290 Kan. 224, 224 P.3d 564 (2010), our Supreme Court
addressed whether the evidence presented during a first-degree murder trial supported the
defendant's request for a jury instruction on sudden quarrel voluntary manslaughter. In
that case, the defendant and his brother were suspected of killing David Mason. At trial,
the defendant testified that Mason owed him money and that Mason had borrowed some
camera equipment from him which he never returned. Mason lived in an apartment with

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the defendant's brother. The defendant told his brother that he wanted to confront Mason
and asked his brother to call him when Mason arrived at the apartment. The defendant's
brother called a short time later, and the defendant rode his bicycle to the apartment.

When the defendant arrived at the apartment, he brought with him a climber's
"impelling rope" that he routinely used to secure his bicycle. The defendant testified that
he came up behind Mason as he sat at his computer and "'kind of kicked him in the butt'"
and asked if he had his camera. 290 Kan. at 229. Mason jumped up, bringing some
computer cords with him. According to the defendant, the two men got "'tangled up'" in
the computer cords and the impelling rope. 290 Kan. at 229. The arguing continued and
the defendant eventually followed Mason into his bedroom. According to the defendant,
Mason fell backwards as the two men struggled, hitting his head on the bed railing. The
defendant testified that he and his brother left the apartment. When they returned the next
day, they found Mason dead. The jury convicted the defendant of premeditated first-
degree murder and conspiracy to commit first-degree murder.

On appeal, the defendant argued that the district court erred in refusing to instruct
the jury on voluntary manslaughter as a lesser included offense of premeditated first-
degree murder. The defendant argued that the jury could have believed that Mason
provoked a sudden quarrel when he stood up from the computer and entangled the
defendant in the computer cords, causing a fight to ensue.

Our Supreme Court acknowledged that the defendant was entitled to a voluntary
manslaughter instruction provided there was some evidence which would reasonably
justify a conviction of the lesser included crime. 290 Kan. at 233. But the court found that
the defendant's argument "ignores Kansas precedent that requires severe provocation to
justify giving a voluntary manslaughter instruction." (Emphasis added.) 290 Kan. at 233;
see, e.g., State v. Vasquez, 287 Kan. 40, 55-56, 194 P.3d 563 (2008); State v. Gallegos,

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286 Kan. 869, 874, 190 P.3d 226 (2008); State v. Drennan, 278 Kan. 704, 713, 101 P.3d
1218 (2004); State v. Horn, 278 Kan. 24, 40-41, 91 P.3d 517 (2004).

The Northcutt court also stated that "[u]nder our precedent, mere evidence of an
altercation between parties does not alone support finding sufficient provocation" to
justify instructing the jury on voluntary manslaughter as a lesser included offense. 290
Kan. at 234; see, e.g., Gallegos, 286 Kan. at 874-75; Mitchell, 269 Kan. at 353. The
Northcutt court noted that the test of the sufficiency of the provocation is objective, not
subjective. 290 Kan. at 234. The court also stated that the provocation, whether it be a
sudden quarrel or some other form of provocation, must be enough to cause an ordinary
person to lose control of his or her actions and reason. 290 Kan. at 234.

Returning to our facts, we first observe that any argument between Mendoza and
S.G. on August 4, 2018, was too remote in time to be considered part of the provocation
for the August 9 shooting. As for the incident in the SUV on August 9, there was
evidence at trial that Mendoza and S.G. disagreed about whether S.G. was taking the best
route to get to Mendoza's job. A brief time later, Mendoza took S.G.'s cell phone off the
car charger and put it in his bag. S.G. told Mendoza to return her phone and stopped the
SUV in the middle of the street waiting for Mendoza to return the phone.

Caselaw is clear that provocation must be severe to justify giving a voluntary
manslaughter instruction. Robertson, 279 Kan. at 306. We acknowledge that we must
view the evidence in the light most favorable to Mendoza in deciding whether the
requested instruction on attempted voluntary manslaughter would have been factually
appropriate. But we simply do not have enough evidence here of a severe provocation to
support an instruction on attempted voluntary manslaughter based on sudden quarrel or
heat of passion. We conclude the district court did not err in failing to give the requested
instruction, and we need not reach the State's argument that any error was harmless.

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DID THE DISTRICT COURT ERR IN CALCULATING MENDOZA'S CRIMINAL HISTORY SCORE?

Mendoza next claims the district court erred when it calculated his criminal history
score. More specifically, Mendoza argues that the district court erred when it included his
now unconstitutional reckless criminal threat conviction in determining his criminal
history score. The State asserts that Mendoza's objection to scoring his reckless criminal
threat conviction, while correct, is moot because his criminal history score of A will not
change even when the criminal threat conviction is not scored.

In district court, Mendoza also objected to the PSI report scoring his two New
Mexico convictions as person felonies. But Mendoza does not renew this challenge on
appeal, so the issue is considered waived and abandoned. State v. Arnett, 307 Kan. 648,
650, 413 P.3d 787 (2018).

The classification of prior offenses for criminal history purposes involves
interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018
Supp. 21-6801 et seq. Statutory interpretation is a question of law subject to unlimited
review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).

As Mendoza correctly argues, under K.S.A. 2018 Supp. 21-6810(d)(9), the district
court cannot use a prior conviction later found unconstitutional by an appellate court to
calculate a defendant's criminal history. In Boettger, our Supreme Court declared Kansas'
reckless criminal threat statute to be unconstitutionally overbroad. 310 Kan. at 823. At
Mendoza's sentencing, the district court scored the conviction anyway because the
mandate in Boettger had not been issued. But the mandate was later issued after the
United States Supreme Court denied certiorari. Thus, the district court erred in scoring
Mendoza's reckless criminal threat conviction, and the State concedes this point.

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 But as the State points out, Mendoza's criminal history score of A will not change
even when the criminal threat conviction is not scored. Mendoza's PSI report shows that
he has two New Mexico convictions of aggravated assault against a household member,
each scored as a person felony, and a Kansas conviction of fleeing or attempting to elude
an officer, scored as a person felony. With three prior person felony convictions,
Mendoza's criminal history score remains in category A. See K.S.A. 2018 Supp. 21-6809.
Thus, Mendoza's sentence is not illegal, and he is entitled to no relief on this claim.

DOES MENDOZA'S SENTENCE VIOLATE SECTION 5 OF THE KANSAS CONSTITUTION BILL
OF RIGHTS?

Finally, Mendoza claims that the use of judicial findings of prior convictions to
increase his sentence violates section 5 of the Kansas Constitution Bill of Rights. More
specifically, Mendoza maintains that the KSGA violates section 5 of the Kansas
Constitution Bill of Rights by denying his right to have a jury determine his criminal
history for sentencing. The State responds that the district court did not err in considering
Mendoza's prior convictions when determining his sentence. A constitutional challenge to
the KSGA involves a question of law subject to unlimited review. State v. Gonzalez, 307
Kan. 575, 579, 412 P.3d 968 (2018).

After the parties filed their briefs, the Kansas Supreme Court decided this issue
adversely to Mendoza's claim in State v. Albano, 313 Kan. 638, Syl. ¶ 4, 487 P.3d 750
(2021). The Kansas Court of Appeals is duty-bound to follow Kansas Supreme Court
precedent unless there is some indication that our Supreme Court is departing from its
previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We
have no indication that our Supreme Court is departing from its recent unanimous
decision in Albano.

Affirmed.

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