People v. Mendez CA1/2

Filed 12/24/13 P. v. Mendez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A137084 v. SERGIO RIVERA MENDEZ, (Napa County Super. Ct. Nos. HC1629, CR101901) Defendant and Appellant.

In 2001, Sergio Rivera Mendez pleaded no contest to charges arising from allegations of violence made by a woman with whom Mendez was involved in a sexual relationship. In 2012, Mendez petitioned the trial court for a writ of error corum nobis, seeking to have the 2001 judgment vacated. The trial court denied Mendez’s petition, without a hearing, after concluding that the petition failed to make a prima facie showing of merit. Mendez appeals from the denial of his petition, alleging that the court abused its discretion by denying his petition without a hearing. We find no abuse of discretion by the trial court. Because we conclude that Mendez failed to make a prima facie showing of merit for a writ of error corum nobis, we dismiss his appeal. BACKGROUND I. Factual Background We summarize the facts as stated by Annie T., Mendez’s accuser, at a preliminary hearing held on June 8, 2001.

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Annie and Mendez had been in a sexual relationship for almost four years. On July 14, 2000, Mendez called Annie, who told him that she was going to a friend’s party and hung up on him. Mendez then came to Annie’s house and pushed Annie onto her bed, cutting her eye with his fingernail. Annie managed to leave the house, but Mendez caught her, dragged her over the cement, began to choke her, and told her she could not leave. On prior occasions, Mendez would hit Annie when she would “ask him if [she] could go out” or when she said she would leave him. In June 2000, Mendez had slapped Annie “really hard” in a car, twisted her arm, and grabbed her by the neck to prevent her from screaming. Mendez then pushed her from the car, kicking her in the back and leaving a red mark. On July 19 or 20, 2000, Mendez came into Annie’s room and started choking her, asking if she planned to leave him. Annie screamed and her father came to the room. Mendez left and Annie, who had suffered a bruised neck, called 911. II. Procedural Background On June 11, 2001, Mendez was charged with two counts of aggravated assault (Pen. Code, § 245, subd. (a)(1)), two counts of residential burglary (Pen. Code, § 459), one count of false imprisonment (Pen. Code, § 236), and one count of misdemeanor battery (Pen. Code, § 243, subd. (e)(1)). Pursuant to a negotiated plea, Mendez pleaded no contest to the two counts of aggravated assault and the count of false imprisonment. On November 21, 2001, the court sentenced Mendez to imprisonment for five years and eight months. On May 6, 2004, Immigration and Customs Enforcement served Mendez with notice to appear at removal proceedings. On June 14, 2004, the immigration court ordered Mendez’s removal to Mexico. Mendez reentered the United States in 2006. On September 22, 2011, Mendez was indicted in federal court on the charge that he illegally reentered the United States after deportation, in violation of Title 8, United States Code section 1326. On June 18, 2012, Mendez filed a petition to vacate his 2001 conviction via two mechanisms: a writ of error coram nobis, based on alleged new evidence concerning