California Court of Appeal Aug 19, 2024 No. E081434Unpublished
Filed 8/19/24 P. v. Mendez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081434
v. (Super.Ct.No. FWV1303835)
DAVID MENDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
and Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for
Plaintiff and Respondent.
1
In 2015 a jury convicted David Mendez of murder and robbery. In 2022 Mendez
petitioned under Penal Code section 1172.61 alleging he could not be convicted of
murder under current law and seeking resentencing. After an evidentiary hearing, the
court denied the petition, finding Mendez was guilty of murder as a major participant in
the underlying crime who acted with reckless indifference to human life. Mendez argues
this finding was not supported by substantial evidence. We disagree and affirm.
BACKGROUND
Mendez was friends and coworkers with Jorge Cisneros, and the two frequently
went to lunch together. Cisneros was known by coworkers to have an affinity for guns
and violence. He sometimes showed coworkers pictures of guns and had magazines
about guns. One coworker later testified that Cisneros acted threatening and “tried to
fight me a couple times.” This same coworker testified Cisneros “would carry a weapon
and we were all just afraid that he might use it,” and he had mentioned wanting to get
into a gunfight. Cisneros brought a gun to work on at least one occasion. When a
coworker reported that Cisneros had brought a gun, both Mendez and Cisneros threatened
the coworker. Mendez’s nickname for Cisneros was “Matone,” which he testified was
Spanish for “killer.”
In November of that year Cisneros and Mendez left work for lunch. Instead of
getting food, the two went to a check cashing and payday loan store. When Mendez and
Cisneros arrived at the store, Cisneros showed Mendez that he had a gun. Mendez
1 Unlabeled statutory citations are to the Penal Code.
2
testified that until that point he did not know they planned to rob the store, and when he
expressed hesitation Cisneros threatened him with the gun. However, Mendez admitted
Cisneros did not have the gun in his hand when the two entered the store, which
surveillance footage shown to the jury confirmed.
The victim, an employee at the store, was the only person there when Cisneros and
Mendez arrived. The victim was on the phone with a colleague when the two entered.
Video footage shows Cisneros, who was not wearing a mask or any other clothing to
conceal his identity, entering first. He held the door for a man wearing a mask, who
Mendez later admitted was him. Cisneros proceeded towards the victim while Mendez
stayed back. When Cisneros arrived at the victim’s desk, he pulled a gun and fired it at
her from a short distance. The colleague on the phone with the victim heard her scream
and then heard a loud thump. The victim immediately fell off her chair and onto the
floor, where she remained. At the same moment, Mendez sprinted from near the entrance
of the store—well behind Cisneros—to behind the desk. Despite moving directly past the
victim Mendez did not attempt to render any aid to her, and instead began rummaging
through the desk drawers. After an initial scramble, Cisneros began pointing to drawers,
directing Mendez to check or double-check them. The colleague on the phone heard two
men speaking in Spanish, one saying, “[o]ver there. Over there,” and the other
responding “[t]here?” The victim was lying down behind the desk, still alive, while
Mendez stepped around her to go through the drawers. Cisneros then exited the store
ahead of Mendez, without looking back. Mendez sprinted to follow.
3
Cisneros and Mendez were in the store for just over 30 seconds. The victim could
still be seen moving until the footage ended about 20 seconds after Mendez and Cisneros
left. Cisneros and Mendez stole a total of $600. Mendez later admitted that he did not
object to the shooting or attempt to render aid, but claimed this was because he was afraid
of Cisneros.
The colleague on the phone called the police, who arrived shortly afterward.
When police arrived the victim was unresponsive, and she was pronounced dead at the
hospital.
Mendez and Cisneros returned to work after the killing. After work, Mendez
bought pizza and took it home to his family.
The San Bernardino County District Attorney charged Mendez with murder
(§ 187, subd. (a)) and robbery (§ 211). They also alleged the special circumstance that
the murder was committed in the course of a robbery. (§ 190.2, subd. (a)(17).) In 2015 a
jury convicted Mendez on both counts and found the special circumstance true.
In 2022 Mendez petitioned under what is now section 1172.6. The court issued an
order to show cause and held an evidentiary hearing. The parties submitted the reporter’s
transcript from Mendez’s appeal from his conviction, as well as the surveillance video
footage. After reviewing this evidence and hearing argument, the court denied Mendez’s
petition, concluding he was a major participant in the robbery who acted with reckless
indifference to human life. The court found Mendez’s claim that he was forced to
participate unconvincing, highlighting several discrepancies between Mendez’s testimony
4
and the surveillance footage. Specifically, Mendez said Cisneros was pointing the gun at
him while the two were at the door of the store “[b]ut . . . there is no indication of that on
the video.” In addition, Mendez “testified that he went into the business first with
Cisneros behind him,” but the video showed Cisneros entering first. The court also
provided a detailed analysis of the factors regarding major participation and reckless
indifference to human life, finding—among other things—that Mendez knew Cisneros
was “preoccupied with guns and killing,” knew Cisneros actually had a gun, acted
without hesitation once Cisneros fired at the victim, did not try to warn the victim, and
did not otherwise attempt to aid the victim at all.
DISCUSSION
Mendez argues there was insufficient evidence for the judge to find either that he
was a major participant in the robbery or that he acted with reckless indifference to
human life, and therefore he is entitled to be resentenced under section 1172.6.
In 2018, the Legislature passed Senate Bill No. 1437 (Senate Bill 1437), effective
January 1, 2019, which among other things, amended the definition of felony-murder in
section 189. This amended felony-murder rule restricted culpability for murder to actual
killers, aiders and abettors, and anyone who was “a major participant in the underlying
felony and acted with reckless indifference to human life” unless the victim was a peace
officer. (§ 189, subd. (e)(1)-(3), (f).) Senate Bill 1437 also added what is now
section 1172.6, which allows “[a] person convicted of felony murder or murder under the
natural and probable consequences doctrine,” to “file a petition with the court that
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sentenced the petitioner to have the petitioner’s murder . . . conviction vacated and to be
resentenced on any remaining counts,” if, among other things, “[t]he petitioner could not
presently be convicted of murder” (§ 1172.6, subd. (a)), because of the changes to the law
wrought by Senate Bill 1437. (§ 1172.6, subd. (a)(3).) If the petition makes a prima
facie case for relief, the court must hold an evidentiary hearing. At this hearing, the
People have the burden to prove beyond a reasonable doubt that the petitioner is guilty of
murder under the law as it exists now, with the trial judge sitting as factfinder. (§ 1172.6,
subds. (b), (d)(3).)
In People v. Banks (2015) 61 Cal.4th 788, 798 (Banks), our Supreme Court
defined “ ‘major participant’ ” in an underlying felony, while in People v. Clark (2016)
63 Cal.4th 522 (Clark), it addressed how to determine whether a defendant acted with
“reckless indifference to human life.” (Id. at pp. 614-623.)
The factors relevant to assessing whether a defendant was a major participant in an
underlying felony, set out in Banks, are: “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role did the defendant have
in supplying or using lethal weapons? What awareness did the defendant have of
particular dangers posed by the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at the scene of the killing,
in a position to facilitate or prevent the actual murder, and did his or her own actions or
inaction play a particular role in the death?” and “[w]hat did the defendant do after lethal
force was used?” (Banks, supra, 61 Cal.4th at p. 803.) The court emphasized that no one
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factor was determinative but that “[a]ll may be weighed in determining the ultimate
question, whether the defendant’s participation ‘in criminal activities known to carry a
grave risk of death’ [citation] was sufficiently significant to be considered ‘major.’ ”
(Id. at p. 803.)
In Clark, the Court summarized the necessary state of mental culpability for
reckless indifference to human life as “encompass[ing] a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant does not specifically
desire that death as the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.) The
court cited the Model Penal Code’s definition of recklessness approvingly, which
requires a person “ ‘consciously disregard[] a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a nature
and degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actor’s situation.’ ” (Clark, at
p. 617.) “This definition encompasses both subjective and objective elements. The
subjective element is the defendant’s conscious disregard of risks known to him or her.
But recklessness is not determined merely by reference to a defendant’s subjective
feeling that he or she is engaging in risky activities. Rather, recklessness is also
determined by an objective standard, namely what ‘a law-abiding person would observe
in the actor’s situation.’ ” (Ibid.)
7
In Clark, the Court offered a list of nonexclusive factors to consider in
determining whether a defendant acted with reckless indifference to human life. These
factors are (1) the defendant’s “[k]nowledge of [w]eapons, and [u]se and [n]umber of
[w]eapons”; (2) their “[p]hysical [p]resence at the [c]rime and [o]pportunities to [r]estrain
the [c]rime and/or [a]id the [v]ictim”; (3) the “[d]uration of the [f]elony” (italics omitted);
(4) the defendant’s knowledge of the likelihood his cohorts will kill; and (5) their efforts
to minimize the risks of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-
621.) The Court emphasized that, as with the Banks factors, “ ‘[n]o one of these
considerations is necessary, nor is any one of them necessarily sufficient.’ ” (Clark, at
p. 618.)
While the trial judge must consider the evidence under a reasonable doubt
standard, we review the trial judge’s factual findings for substantial evidence. (People v.
Clements (2022) 75 Cal.App.5th 276, 298.) Under this standard “[w]e ‘ “examine the
entire record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value that
would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable
doubt.” ’ ” (Ibid.) We view the evidence in a light most favorable to the judgment and
“presume ‘ “ ‘every fact in support of the judgment the trier of fact could have reasonably
deduced from the evidence.’ ” ’ ” (People v. Hill (2024) 100 Cal.App.5th 1055, 1066.)
“We will not reverse unless there is no hypothesis upon which sufficient substantial
8
evidence exists to support the trial court’s decision.” (People v. Didyavong (2023)
90 Cal.App.5th 85, 97.)
We find there was substantial evidence to support the trial court’s finding that
Mendez was a major participant in the robbery who acted with reckless indifference to
human life.
There is little question Mendez was a major participant in the robbery. Even
accepting as true that Mendez did not know Cisneros planned to rob the store, the
surveillance video shows Mendez fully cooperating. Indeed, Mendez was the only
person who personally stole anything. He rummaged through the drawers, presumably
looking for whatever he could take. Cisneros directed Mendez’s theft, but Mendez took
the goods. There was also evidence that Mendez did, in fact, play some role in planning
the crime. The surveillance footage shows Mendez reacted immediately to the shooting,
sprinting to open the drawers behind the counter before the victim’s body had even hit
the floor. Once there, Cisneros did not have to direct him much nor explain what he
should be looking for, merely pointing at drawers. The trial judge could have reasonably
concluded this indicated some level of pre-planning or at least understanding between
Cisneros and Mendez. Mendez also knew Cisneros was a hothead who was often armed
and had expressed some violent tendencies prior to this date. He knew Cisneros was
armed before the robbery commenced. Though Mendez was not physically next to
Cisneros when Cisneros pulled the trigger, he could have attempted to stop or stall
Cisneros at any point before the shooting, or even just warn the victim. But he did none
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of these things. Finally, Mendez’s actions after the death showed no remorse nor concern
for the victim. Mendez did not attempt to render aid, report the shooting, or report that
there was a victim in need of aid. Thus, there is at least some evidence to satisfy all or
nearly all of the Banks factors, and therefore plenty to conclude Mendez was a major
participant.
There is also sufficient evidence to find Mendez acted with reckless indifference
to human life. The requirements to be a major participant “ ‘significantly overlap’ ” with
those required to show reckless indifference to human life because “ ‘the greater the
defendant’s participation in the felony murder, the more likely that he acted with reckless
indifference to human life.’ ” (Clark, supra, 63 Cal.4th at p. 615.) As noted above,
Mendez knew Cisneros had a gun and planned to use it. He was also able to restrain
Cisneros and made no effort to do so or to otherwise minimize the risks of violence.
Perhaps most importantly, Mendez made absolutely no effort to aid the victim. He did
not try to warn her Cisneros had a gun. He did not try to render aid. To the contrary,
Mendez had to move around the victim’s body as she lay dying to steal from the drawers.
Mendez had no way of knowing that the victim would not live much longer, and the
surveillance footage shows she was still alive when he left. Despite this, he did not call
for medical aid or for police, even anonymously.
The only factor in Mendez’s favor is that the crime was short, and Cisneros killed
the victim without warning and within seconds of them entering the store. Because of
this, Mendez’s opportunities to prevent violence were fleeting, and he may have been
10
genuinely shocked when Cisneros shot the victim. Nevertheless, Mendez’s actions
thereafter were “ ‘a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation,’ ” and were sufficient for the trial court to
find he acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at
p. 617.)
Accordingly, we affirm the trial court’s order denying Mendez’s petition under
section 1172.6.
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.
We concur:
MILLER Acting P. J.
MENETREZ J.
11
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the trial court's finding that the defendant was a major participant in the robbery who acted with reckless indifference to human life, thereby justifying the denial of his petition for resentencing under Penal Code section 1172.6.
Issues
Whether substantial evidence supports the trial court's finding that the defendant was a major participant in the underlying robbery.
Whether substantial evidence supports the trial court's finding that the defendant acted with reckless indifference to human life.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We find there was substantial evidence to support the trial court’s finding that Mendez was a major participant in the robbery who acted with reckless indifference to human life.”
“There is also sufficient evidence to find Mendez acted with reckless indifference to human life.”