P. v. Mendoza

Filed 5/3/21 P. v. Mendoza CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY MENDOZA,
Defendant and Appellant.
B307382
(Los Angeles County
Super. Ct. No. BA396381)
APPEAL from an order of the Superior Court of Los
Angeles County. Charlaine F. Olmedo, Judge. Affirmed.
Kathy R. Moreno, 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 Noah P. Hill, Deputy Attorneys
General, for Plaintiff and Respondent.
* * * * * * * * * *

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Defendant and appellant Johnny Mendoza appeals from
the denial of his petition for resentencing pursuant to Penal Code
section 1170.95. We affirm.
In 2013, defendant was charged with two counts of first
degree murder (Pen. Code, § 187, subd. (a)), one count of
attempted murder (§ 187, subd. (a), § 664) and one count of
assault with a firearm (§ 245, subd. (a)(2)). Lying in wait, gang
and multiple-murder special-circumstance allegations were
alleged as to both murder counts (§ 190.2, subd. (a)(3), (15) &
(22)). Firearm use and gang allegations were alleged as to all
counts (§ 12022.5, § 12022.53, § 186.22).
The charges arose from a series of acts undertaken by
defendant and his fellow Cypress Park gang member and
codefendant, Albert Arzate. Defendant and Arzate ambushed
two brothers and their cousin who were walking down the street
in a rival gang neighborhood. The two brothers were shot at
close range and killed. Their cousin was shot several times and
seriously wounded but survived. Defendant and Arzate also
assaulted and threatened a fourth victim—the girlfriend of a
fellow gang member who was incarcerated at the time. They
accused her of cheating on their friend with a rival gang member.
(People v. Arzate (Sept. 29, 2016, B259259) [nonpub. opn.])
Defendant was found guilty on all four counts. The jury
found true all three special circumstance allegations as to both
murders and also found true the gang allegations. The jury
found not true the allegation that defendant personally used a
firearm in the commission of the offenses. Codefendant Arzate
was also convicted on all counts, including a fifth charge for
making criminal threats against their female victim. The jury

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found true the firearm use allegations as to Arzate. (People v.
Arzate, supra, B259259.)
Defendant was 17 at the time the crimes were committed.
Prior to imposing sentence, the trial court conducted a hearing
pursuant to Miller v. Alabama (2012) 567 U.S. 460. Thereafter,
the court sentenced defendant to consecutive terms of life without
the possibility of parole on each of the murder counts, plus a
determinate term of 18 years.
In an unpublished decision, we affirmed defendant’s and
Arzate’s convictions. (People v. Arzate, supra, B259259.)
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In early 2020, defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95. The People filed a
response opposing defendant’s petition.
On August 5, 2020, the trial court summarily denied
defendant’s petition without appointing counsel. The trial court
concluded defendant had not stated a prima facie case for relief
under the statutory scheme.
Defendant appealed. We granted respondent’s request to
take judicial notice of the case file.
Defendant contends the trial court’s summary denial of his
resentencing petition was in error and violated his rights to due
process and the assistance of counsel. He argues the court
engaged in improper factfinding in reviewing the case file and
that reversal is warranted so that he may have the assistance of
counsel and an evidentiary hearing.

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The trial court did not commit error by summarily denying
defendant’s petition without first appointing him counsel. Penal
Code section 1170.95, subdivision (c) provides 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.” The statutory language, read in context,
contemplates an initial eligibility determination by the court.
Several courts have interpreted the statutory language and have
concluded that a defendant seeking resentencing is entitled to
appointment of counsel only after demonstrating a prima facie
case. The Supreme Court is considering the issue. (See, e.g.,
People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
Mar. 18, 2020, S260598; People v. Cornelius (2020)
44 Cal.App.5th 54, review granted Mar. 18, 2020, S260410;
People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
Mar. 18, 2020, S260493 & People v. Tarkington (2020)
49 Cal.App.5th 892, review granted Aug. 12, 2020, S263219.)
Pending guidance from the Supreme Court, we adopt the
persuasive analyses in these decisions. The statutory framework
supports the trial court’s authority to make an initial eligibility
determination as a matter of law without appointing defendant
counsel. Further, as we explained in People v. Falcon (2020)
57 Cal.App.5th 272, 279, review granted January 27, 2021,
S266041, the denial of counsel at this stage in the proceedings
does not infringe on a defendant’s constitutional rights or amount
to structural error.
Moreover, the trial court did not engage in improper
factfinding. Rather, the court made a threshold legal
determination based on undisputed facts in the record that

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establish defendant could not, as a matter of law, state a basis for
relief under Penal Code section 1170.95.
“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.’
(Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
Defendant was prosecuted as a direct aider and abettor in
the shootings. The jury was not instructed on felony murder or
natural and probable consequence theories. In finding defendant
guilty, the jury found true the lying-in-wait special circumstance
allegation as to both murders. In so doing, the jury necessarily
found defendant acted with the intent to kill. (People v. Sandoval
(2015) 62 Cal.4th 394, 416 [“ ‘Lying in wait is the functional
equivalent of proof of premeditation, deliberation, and intent to
kill.’ ”].)
Defendant also is not entitled to sentencing relief as to his
conviction for attempted murder. Penal Code section 1170.95,
subdivision (a) provides, in plain language, that only persons
“convicted of felony murder or murder under a natural and
probable consequences theory” may file a petition seeking
resentencing. “When we interpret statutes, giving effect to
legislative purpose is the touchstone of our mission.” (People v.
Valencia (2017) 3 Cal.5th 347, 409.) “The text of the statute is
integral to our understanding of the statute’s purpose.” (Ibid.)
“We must take ‘the language . . . as it was passed into law, and
[we] must, if possible without doing violence to the language and

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spirit of the law, interpret it so as to harmonize and give effect to
all its provisions.’ ” (Id. at pp. 409–410.)
The Courts of Appeal are divided on the question of
whether the statutory language may be interpreted as
encompassing convictions for attempted murder. Our Supreme
Court is currently considering the issue. (Compare People v.
Lopez (2019) 38 Cal.App.5th 1087 [attempted murder not within
scope of statute], review granted Nov. 13, 2019, S258175; People
v. Muñoz (2019) 39 Cal.App.5th 738 [same], review granted
Nov. 26, 2019, S258234; People v. Dennis (2020) 47 Cal.App.5th
838 [same], review granted July 29, 2020, S262184 & People v.
Love (2020) 55 Cal.App.5th 273 [same], review granted Dec. 16,
2020, S265445, with People v. Larios (2019) 42 Cal.App.5th 956
[concluding Senate Bill 1437 abrogated the natural and probable
consequences doctrine for attempted murder but that
section 1170.95 does not provide relief for attempted murder
convictions that have become final], review granted Feb. 26,
2020, S259983; People v. Medrano (2019) 42 Cal.App.5th 1001
[amended statutory language applies to attempted murder and
retroactive relief provisions are applicable to nonfinal attempted
murder convictions], review granted Mar. 11, 2020, S259948 &
People v. Sanchez (2020) 46 Cal.App.5th 637, review granted
June 10, 2020, S261768 [same].)
Pending guidance from the Supreme Court, we believe
Lopez, Muñoz, Dennis and Love are better reasoned and adopt
their analyses.

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DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.

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