Filed 7/10/23 P. v. Mendoza CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B322113
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA140865)
v.
DAVID MENDOZA.
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Reversed with
directions.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, and Christopher G. Sanchez, Deputy
Attorney General, for Plaintiff and Respondent.
INTRODUCTION
David Mendoza, convicted of attempted murder after
pleading no contest, appeals from the superior court’s order
denying his petition for resentencing under Penal Code section
1172.6 (former section 1170.95).1 The superior court denied the
petition without an evidentiary hearing, ruling Mendoza failed to
make a prima facie showing he was eligible for relief because
(1) the information alleged Mendoza acted with malice and
(2) Mendoza admitted the allegation he personally used a
firearm. Mendoza argues the superior court erred because he
pleaded to a generic charge of attempted murder and because his
admission he personally used a firearm did not preclude the
possibility he could have been convicted under an imputed malice
theory. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Mendoza Is Convicted of Attempted Murder
In June 2016 Joshua Adcox was shot twice at or near a gas
station. Deputies from the Los Angeles County Sheriff’s
Department responded to a call reporting the shooting. The
deputies spoke to a witness who stated she was seated at a bus
stop near Adcox when a car approached. She said the people in
the car called Adcox to the car and began yelling at him. The
witness said that she started to walk away to avoid the
altercation and that she heard four gunshots and saw Adcox
running across the street.
1 Statutory references are to the Penal Code.
2
The deputies obtained video surveillance footage from an
adjacent gas station and a fast-food restaurant. The footage
showed the driver of the car buying something from the drive-
through window of the restaurant and then driving to the
parking lot of the gas station. Adcox approached the car and,
after briefly speaking to the people in the car, ran across the
street and collapsed.
One of the deputies spoke to an employee of the fast-food
restaurant. The employee stated she served food to two people in
the car. According to the employee, the driver had two markings
near his right eye and a tattoo of a clown face on the back of his
head.
The People charged Mendoza with attempted murder and
possession of a firearm by a felon. The People alleged that
Mendoza acted with malice in attempting to kill Adcox and that
Mendoza committed the attempted murder “willfully, deliberately
and with premeditation.” The People also alleged Mendoza
personally used a firearm, personally and intentionally
discharged a firearm, and personally and intentionally
discharged a firearm causing great bodily injury, within the
meaning of section 12022.53, subdivisions (b) through (d).
In 2017 Mendoza pleaded no contest to the attempted
murder charge. Mendoza admitted that he personally used a
firearm within the meaning of section 12022.5, subdivision (a),
and that he had a prior serious or violent felony conviction within
the meaning of the three strikes law (§§ 667, subds. (b)-(j),
1170.12, subds. (a)-(d)). The superior court dismissed the
remaining charge and allegations, including the allegation
Mendoza committed the attempted murder willfully, deliberately,
3
and with premeditation. The court sentenced Mendoza to an
aggregate prison term of 28 years.
B. Mendoza Files a Petition for Resentencing
In 2022 Mendoza filed a petition for resentencing under
section 1172.6. Mendoza alleged the People filed an information
that allowed the prosecution to proceed on a theory of attempted
murder under the natural and probable consequences doctrine,
that he accepted a plea offer in lieu of a trial at which he could
have been convicted of attempted murder, and that he could not
now be convicted of attempted murder because of amendments
to sections 188 and 189 effective January 1, 2019.
After appointing counsel for Mendoza and receiving briefs
from the parties, the superior court denied the petition. The
court ruled that, by pleading no contest to attempted murder,
Mendoza was not eligible for relief under section 1172.6 as a
matter of law. The court stated: “In attempted murder, it’s the
specific intent to kill. You have to have malice. So the court
could look at that as a readily accessible type of fact,” which the
court found “showed malice and, as such, doesn’t fall under . . .
natural and probable consequence.” The court also relied on the
allegation in the information that Mendoza had acted with
malice. In addition, the court ruled Mendoza was ineligible for
relief because he admitted he personally used a gun in
committing attempted murder. Mendoza timely appealed.
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DISCUSSION
A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Reyes (2023) ___ Cal.5th
___, ___ (June 29, 2023, S270723) [2023 WL 4242765, p. 1];
People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly
narrowing the felony-murder exception to the malice requirement
for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v.
Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis)). Section 188, subdivision (a)(3), now
prohibits imputing malice based solely on an individual’s
participation in a crime and requires proof of malice to convict a
principal of murder, except under the revised felony-murder rule.
(Gentile, at pp. 842-843.)
Section 1172.6, subdivision (a), authorizes an individual
convicted of felony murder or murder, attempted murder, or
manslaughter based on 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,” to
petition the superior court to vacate the conviction and be
resentenced on any remaining counts if he or she could not now
be convicted of murder or attempted murder because of the
changes the Legislature made to the definitions of the crime of
murder. (See People v. Strong, supra, 13 Cal.5th at p. 708; Lewis,
supra, 11 Cal.5th at p. 957; People v. Gentile, supra, 10 Cal.5th at
p. 843; People v. Vargas (2022) 84 Cal.App.5th 943, 950-951.) If a
petition under section 1172.6 contains all the required
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information, the court must appoint counsel to represent the
petitioner if requested. (Lewis, at pp. 962-963; see § 1172.6,
subd. (b)(1)(A), (3).) The prosecutor must then file a response to
the petition, the petitioner may file a reply, and the court must
hold a hearing to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief. (§ 1172.6,
subd. (c).)
In deciding whether a petitioner has made a prima facie
showing for relief under section 1172.6, “‘“the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.”’” (Lewis, supra, 11 Cal.5th at
p. 971; see People v. Maldonado (2023) 87 Cal.App.5th 1257,
1261.) The court may consider the record of conviction, which
will “necessarily inform the trial court’s prima facie inquiry
under section [1172.6], allowing the court to distinguish petitions
with potential merit from those that are clearly meritless.”
(Lewis, at p. 971; see People v. Williams (2022) 86 Cal.App.5th
1244, 1251.) “In reviewing any part of the record of conviction at
this preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’” (Lewis, at p. 972; see Maldonado, at p. 1261.) But
“[i]f the record of conviction ‘“contain[s] facts refuting the
allegations made in the petition,”’ . . . then the trial court is
justified in rejecting them.” (People v. Lopez (2022)
78 Cal.App.5th 1, 13; see Lewis, at p. 971.)
Where the petitioner makes the requisite prima facie
showing he or she is entitled to relief under section 1172.6, the
court must issue an order to show cause and hold an evidentiary
6
hearing to determine whether to vacate the murder, attempted
murder, or manslaughter conviction and resentence the
petitioner on any remaining counts. (§ 1172.6, subd. (d)(1).) We
review de novo an order denying a petition under section 1172.6
without issuing an order to show cause. (People v. Williams,
supra, 86 Cal.App.5th at p. 1251; People v. Coley (2022)
77 Cal.App.5th 539, 545; People v. Harrison (2021)
73 Cal.App.5th 429, 437.)
B. Mendoza Made a Prima Facie Showing for Relief
Mendoza made a prima facie showing for relief under
section 1172.6. Mendoza alleged in his petition that the
prosecution filed an information allowing it to proceed under a
theory of murder based on the natural and probable
consequences doctrine, that he accepted a plea offer in lieu of a
trial at which he could have been convicted of attempted murder,
and that he could not presently be convicted of attempted murder
because of the changes to sections 188 and 189. (See § 1172.6,
subd. (a)(1)-(3).) Because the court must accept those allegations
as true, “the only basis to refuse to issue an order to show cause
is if the record of conviction conclusively demonstrates [the
petitioner] was not entitled to relief as a matter of law.” (People
v. Williams, supra, 86 Cal.App.5th at p. 1251.)
It did not. The People filed an information charging
Mendoza with attempted murder and alleging Mendoza
“unlawfully and with malice aforethought attempt[ed] to murder”
Adcox. The information allowed the prosecution to proceed on a
theory of attempted murder under the natural and probable
consequences doctrine. (See § 1172.6, subd. (a)(1); People v.
Davenport (2021) 71 Cal.App.5th 476, 484 [“‘The allegation that a
7
murder was committed “‘willfully, unlawfully, and with malice
aforethought’” is a well-recognized way of charging murder in [a]
generic sense,’” which “does ‘not limit the People to prosecuting
[defendant] on any particular theories.’”]; People v. Rivera (2021)
62 Cal.App.5th 217, 233 [same], review granted June 9, 2021,
S268405, review dismissed January 19, 2022; see also People v.
Didyavong (2023) 90 Cal.App.5th 85, 96, fn. 4 [“A murder charged
generically does not limit the prosecution to any particular
theories of liability.”], review granted June 28, 2023, S280047.)
Mendoza pleaded no contest to the generic crime of attempted
murder, rather than admitting a specific theory of murder. (See
§ 1172.6, subd. (a)(2); People v. Flores (2022) 76 Cal.App.5th 974,
987 [petitioner was not ineligible for relief where, “[i]n entering
his plea, petitioner did not admit to or stipulate to any particular
theory of murder”]; People v. Eynon (2021) 68 Cal.App.5th 967,
977 [petitioner who pleaded to a charge that he “did willfully,
unlawfully, and with deliberation, premeditation, and malice
aforethought murder” the victim was not ineligible for
resentencing as a matter of law because the charge was a
“generic murder charge [that] allowed the prosecution to proceed
on any theory of liability, including natural and probable
consequences”].) Mendoza, like the petitioner in Eynon, “did not
admit facts supporting liability on any particular theory, and the
generic pleading encompassed theories—such as natural and
probable consequences . . .—that did not require the defendant to
have acted with malice.” (Eynon, at p. 977.)
The People did allege the attempted murder was willful,
deliberate, and premeditated. Mendoza, however, did not admit
that allegation. (See People v. Rivera, supra, 62 Cal.App.5th at
p. 234 [while “[i]n some cases, the record may reveal that a
8
defendant admitted more than the elements of the offense
charged, and such additional admissions may preclude relief,” the
defendant was not ineligible for relief where he “made no
admissions related to the murder other than pleading no contest
to the count as charged”]; see also People v. Eynon, supra,
68 Cal.App.5th at p. 979 [defendant who pleaded guilty to murder
was not ineligible for relief where “he did not admit that he was
the actual killer, acted with intent to kill, or was a major
participant in the robbery and acted with reckless indifference to
human life”].) Moreover, the trial court dismissed the allegation
Mendoza committed the attempted murder willfully, deliberately,
and with premeditation.2 Thus, the record of conviction did not
demonstrate as a matter of law Mendoza was convicted of
attempted murder on a theory that is still valid after the
amendments to sections 188 and 189.
As discussed, in ruling Mendoza was ineligible for relief,
the superior court stated that, “in attempted murder, it’s the
specific intent to kill” and that “you have to have malice.” The
superior court’s ruling was inconsistent with section 1172.6,
subdivision (a), which states a person convicted of “attempted
murder under the natural and probable consequences doctrine”
2 As the Supreme Court has explained, “attempted
premeditated murder and attempted unpremeditated murder are
not separate offenses.” (People v. Favor (2012) 54 Cal.4th 868,
876.) “‘[T]he provision in section 664, subdivision (a), imposing a
greater punishment for an attempt to commit a murder that is
“willful, deliberate, and premeditated” does not create a greater
degree of attempted murder but, rather, constitutes a penalty
provision that prescribes an increase in punishment (a greater
base term) for the offense of attempted murder.’” (Favor, at
p. 877.)
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may petition for relief. (See People v. Basler (2022)
80 Cal.App.5th 46, 60 [the amendments to section 1172.6
clarified “that ‘persons who were convicted of attempted murder
or manslaughter under a theory of felony murder and the natural
[and] probable consequences doctrine are permitted the same
relief as those persons convicted of murder under the same
theories’”].)
It is true that, “[t]o prove the crime of attempted murder,
the prosecution must establish ‘the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing
the intended killing.’” (People v. Canizales (2019) 7 Cal.5th 591,
602; see People v. Lee (2003) 31 Cal.4th 613, 623.) Prior to the
Legislature’s amendments to sections 188 and 189, however, a
defendant could be convicted of attempted murder under the
natural and probable consequences doctrine where “attempted
murder [was] a reasonably foreseeable consequence of the crime
aided and abetted and the attempted murder itself was
committed” by a coparticipant with the requisite intent. (People
v. Favor (2012) 54 Cal.4th 868, 880; see People v. Montes (2021)
71 Cal.App.5th 1001, 1007 [“When appellant was found guilty
of attempted murder under a natural and probable
consequences theory of liability, the ‘intent to kill’ was imputed
onto appellant from the actual killer or perpetrator.”].) That is
because the natural and probable consequences doctrine, when it
was still a valid theory of murder under California law, “[b]y its
very nature” was “not premised upon the intention of the aider
and abettor to commit the nontarget offense . . . . Because the
nontarget offense [was] unintended, the mens rea of the aider
and abettor with respect to that offense [was] irrelevant and
culpability [was] imposed simply because a reasonable person
10
could have foreseen the commission of the nontarget crime.”
(People v. Chiu (2014) 59 Cal.4th 155, 164; accord, People v.
Canizalez (2011) 197 Cal.App.4th 832, 852; see People v. Laster
(1997) 52 Cal.App.4th 1450, 1465 [“proof of the aider and
abettor’s intent to commit the actual offense is excused if the
actual offense was a natural and probable consequence of his
acts of aiding and abetting”].) Therefore, to the extent the
superior court ruled Mendoza necessarily admitted he acted with
the specific intent to kill when he pleaded no contest to the
generic charge of attempted murder, the court erred.
The superior court also erred in ruling Mendoza was not
eligible for relief under section 1172.6 because he admitted the
allegation he personally used a firearm. As the Supreme Court
explained in People v. Jones (2003) 30 Cal.4th 1084, a finding the
defendant “personally used a firearm in the commission” of a
felony and murder “would not in itself prove defendant was the
actual killer” because if, for example, two coparticipants in a
felony “display guns” for intimidation, and one “shoots and kills a
victim, both [participants] could be found to have personally used
a gun in . . . the felony murder, even though only one is the actual
killer.” (Id. at pp. 1119-1120; see People v. Granado (1996)
49 Cal.App.4th 317, 325 [“if the defendant is found on substantial
evidence to have displayed a firearm in order to facilitate the
commission of an underlying crime, a use of the gun has occurred
both as a matter of plain English and of carrying out the intent”
of the sentencing enhancements].) Thus, Mendoza could have
used (or even discharged) a weapon during the commission of a
nontarget offense and been guilty of attempted murder under the
natural and probable consequences doctrine, even if he was not
the person who intentionally shot Adcox. (See People v.
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Davenport, supra, 71 Cal.App.5th at p. 485 [defendant who
admitted the allegation he personally used a firearm within the
meaning of section 12022.5 was not ineligible for relief under
section 1172.6 because the admission “did not preclude the
possibility of prosecution under a felony-murder theory”]; People
v. Offley (2020) 48 Cal.App.5th 588, 598 [defendant’s sentence
enhancement under section 12022.53, subdivision (d), for
personally and intentionally discharging a firearm and
proximately causing great bodily injury or death did not preclude
him from relief under section 1172.6 because the enhancement
“does not require the prosecution to prove that the defendant
harbored a particular mental state as to the victim’s injury or
death”]; see also In re Ferrell (2023) 14 Cal.5th 593, 604 [because
“[s]ection 12022.53, subdivision (d), requires only an intent to
discharge a firearm, not subjective awareness of a risk or
disregard for life . . . , a finding under this section is no proxy for
the mental component of implied malice murder”].)
The People argue the transcript of the preliminary hearing
shows Mendoza “was the actual and only perpetrator of the
attempted murder.” There is a split of authority on whether,
after Lewis, supra, 11 Cal.5th 952, the superior court may
consider the preliminary hearing transcript to determine whether
the petitioner has stated a prima facie case for relief under
section 1172.6, at least where the defendant admitted the
transcript provided a factual basis for the plea. (See People v.
Flores, supra, 76 Cal.App.5th at p. 989 [courts “are split on the
import of the preliminary hearing transcript in determining
whether a petitioner has made a prima facie case for
resentencing” under section 1172.6]; compare id. at p. 991 [a
court may not rely on the preliminary hearing transcript to find
12
the defendant is not eligible for relief under section 1172.6 at the
prima facie stage, even where the defendant stipulates the
transcript provides a factual basis for a plea], People v. Eynon,
supra, 68 Cal.App.5th at pp. 975-976 [for purposes of
section 1172.6, that the magistrate held the defendant to answer
at the preliminary hearing “does not constitute a factual finding
that the allegation is true” or “even constitute a determination
that the allegation is supported by substantial evidence”], and
People v. Rivera, supra, 62 Cal.App.5th at pp. 226, 238 [a court
may not rely on a grand jury transcript to find the defendant is
not eligible for relief under section 1172.6 at the prima facie
stage, even where the defendant stipulated the grand jury
transcript provided a factual basis for a plea] with People v.
Davenport, supra, 71 Cal.App.5th at p. 481 [a court may rely on a
preliminary hearing transcript as part of the record of conviction
where the defendant admits the transcript provides the factual
basis for the plea].) The Supreme Court granted review in People
v. Patton (2023) 89 Cal.App.5th 649, review granted June 28,
2023, S279670, to decide whether a superior court engages in
impermissible judicial factfinding by relying on the preliminary
hearing transcript to deny a defendant’s petition under section
1172.6 at the prima facie stage.
We need not take a side on this issue here; Mendoza did
not stipulate the preliminary hearing provided a factual basis for
his plea.3 Therefore, even under Davenport, supra,
3 Even if we considered the preliminary hearing transcript, a
cursory review reveals that, contrary to the People’s assertion,
the evidence was not undisputed Mendoza was the sole
perpetrator of the attempted murder. An incident report from
13
71 Cal.App.5th 476, the superior court could not consider the
transcript of the preliminary hearing.
DISPOSITION
The order denying Mendoza’s petition for resentencing is
reversed. The superior court is directed to vacate its order
denying the petition, issue an order to show cause, and conduct
further proceedings in accordance with section 1172.6,
subdivision (d).
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
the Los Angeles County Sheriff’s Department indicated two
witnesses—the woman sitting at the bus stop near Adcox and the
fast-food restaurant employee who served food to the driver of the
car involved in the shooting—stated they saw multiple
“occupants” in the car. The fast-food restaurant employee
testified during the preliminary hearing there were two people in
the car.
14