People v. Mendoza CA2/3

Filed 6/9/22 P. v. Mendoza CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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