Filed 6/9/22 P. v. Mendoza CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B315038
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA023805)
v.
ELMER MORENO MENDOZA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gregory A. Dohi, Judge. Affirmed.
Julie Caleca, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
——————————
Elmer Moreno Mendoza appeals from an order denying his
petition for resentencing pursuant to Penal Code section
1170.95.1 His appellate counsel filed a brief asking this court to
proceed under People v. Wende (1979) 25 Cal.3d 436. We affirm.
On December 9, 1996, following a jury trial, Mendoza was
convicted of one count of first degree murder (§ 187, subd. (a))
with a true finding on the allegation that he personally used a
firearm in the commission of the offense (§ 12022.5, subd. (a)).
He was sentenced to a term of 25 years to life, plus 10 years. A
different panel of this division affirmed the judgment of
conviction in People v. Mendoza (June 24, 1998, B108845)
[nonpub. opn.].
On February 22, 2021, acting in propria persona, Mendoza
filed a petition for resentencing pursuant to section 1170.95. In
his handwritten petition, Mendoza alleged that he was charged
with, and convicted of, first degree murder under the natural and
probable consequences doctrine. He also alleged, however, that
he “shot and killed the victim” in an act of self-defense because
the victim had attempted to sexually assault him. As described
by Mendoza in his petition, “[w]hile Petitioner in fact did kill the
victim, it was the victim who was committing a felony, namely,
he wanted to rape Petitioner, while Petitioner slept.”
On July 16, 2021, the People filed a response to Mendoza’s
petition. The People argued that Mendoza was not eligible for
relief under section 1170.95 because he was convicted of first
degree murder as the actual killer, and the jury was not
instructed on either a felony murder or natural and probable
consequences theory of liability. In support of their response, the
1 All statutory references are to the Penal Code.
2
People attached this court’s prior opinion affirming Mendoza’s
judgment of conviction and the jury instructions from Mendoza’s
trial. The jury instructions did not include any instructions on
the felony-murder rule or the natural and probable consequences
doctrine.
On August 23, 2021, following the appointment of counsel,
Mendoza filed a reply in support of his petition. Mendoza
asserted that he had made a prima facie showing that he was
entitled to relief under section 1170.95, and asked that the
superior court conduct an evidentiary hearing.
On August 24, 2021, the superior court held a prima facie
hearing on Mendoza’s petition. Mendoza was represented by
counsel at the hearing. Following the argument of counsel, the
superior court denied Mendoza’s petition on two grounds. The
court found that the “petition itself contains a recitation of facts
that, if assumed to be true, disqualifies [Mendoza] from relief.”
The court further found that the record of conviction, including
the jury instructions, “show [Mendoza] is ineligible because [the]
jury was never instructed as to felony murder or natural and
probable consequences.”
On September 9, 2021, Mendoza filed an appeal from the
order denying his section 1170.95 petition. We appointed counsel
to represent Mendoza on appeal. After an examination of the
record, counsel filed an opening brief which raised no issues and
requested this court conduct an independent review of the record
pursuant to People v. Wende, supra, 25 Cal.3d 436. On
February 24, 2022, we advised Mendoza that he had 30 days to
submit by supplemental brief or letter any contentions or
arguments he wished this court to consider. Mendoza did not
submit a supplemental brief.
3
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) amended murder liability under
the felony-murder rule and natural and probable consequences
doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v.
Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill 1437 also
added section 1170.95, which created a procedure whereby
persons convicted of murder under a now-invalid felony murder
or natural and probable consequences theory may petition the
sentencing court to vacate the murder conviction and resentence
the petitioner on any remaining counts. Senate Bill No. 775,
which took effect on January 1, 2022, amended section 1170.95 to
allow persons convicted of attempted murder or manslaughter
under a felony murder or natural and probable consequences
theory to seek the same relief under the statute. (Stats. 2021,
ch. 551, § 1.)
A petitioner is eligible for relief under section 1170.95,
subdivision (a) if he or she: (1) was charged with murder or
attempted murder by means of a charging document that allowed
the prosecution to proceed under the felony-murder rule, natural
and probable consequences doctrine, or other theory under which
malice is imputed to a person based solely on his or her
participation in a crime; (2) was convicted of murder, attempted
murder, or manslaughter; and (3) could no longer be convicted of
murder or attempted murder due to the changes to sections 188
and 189 effectuated by Senate Bill 1437.
If a petitioner makes a prima facie showing that he or she
is entitled to relief, the superior court must issue an order to
show cause (§ 1170.95, subd. (c)), and hold an evidentiary hearing
to determine whether to vacate the murder, attempted murder,
or manslaughter conviction and to resentence the petitioner
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(§ 1170.95, subd. (d)(1)). In determining whether a petitioner
has established a prima facie case, it is appropriate to examine
the record of conviction, “allowing the court to distinguish
petitions with potential merit from those that are clearly
meritless.” (People v. Lewis, supra, 11 Cal.5th at p. 971.)
In this case, the superior court properly denied Mendoza’s
section 1170.95 petition because he failed to make a prima facie
showing of entitlement to relief. Based on the factual allegations
in his petition and the jury instructions from his trial, Mendoza
was not convicted of murder under the felony-murder rule, the
natural and probable consequences doctrine, or other theory of
imputed malice. Rather, Mendoza was convicted of murder as
the actual killer, and is therefore ineligible for relief under
section 1170.95. (See § 1170.95, subd. (a)(3) [petitioner is eligible
for relief only if he or she “could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective [by Senate Bill 1437]”]; People v. Lewis,
supra, 11 Cal.5th at p. 959 [“Legislature passed Senate Bill 1437
‘to amend the felony murder rule and the natural and probable
consequences doctrine . . . to ensure that murder liability is not
imposed on a person who is not the actual killer’ ”].)
We have examined the entire record, and are satisfied
Mendoza’s attorney has fully complied with the responsibilities of
counsel and no arguable issues exist. (People v. Kelly (2006)
40 Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
KALRA, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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