People v. Mendoza CA6

Filed 12/5/22 P. v. Mendoza CA6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047430 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 159891)

v.

ARTURO MENDOZA,

Defendant and Appellant.

Defendant Arturo Mendoza was convicted by a jury in 1993 of first degree murder (Pen. Code, §§ 187, subd. (a), 189, subd. (a)),1 attempted robbery (§§ 664/211, 212.5, subd. (a)), and first degree burglary (§§ 459, 460, subd. (a)), and the jury found true the felony-murder special circumstance allegations that the murder was committed during an attempted robbery and a burglary (former § 190.2, subd. (a)(17)(i), (vii))2 and the allegation that defendant personally used a firearm during the commission of the offenses (§ 12022.5, subd. (a)). It was undisputed that defendant was not the actual killer; defendant was prosecuted as an aider and abettor to the murder. In finding the felony- murder special circumstance allegations true, the jury determined that defendant was a major participant in the underlying felonies who acted with reckless indifference to

1 All further statutory references are to the Penal Code 2 Currently section 190.2, subdivision (a)(17)(A), (G).

human life. The superior court sentenced defendant to life without the possibility of parole consecutive to four years for the firearm enhancement. This court affirmed the judgment in 1995. In 2019, defendant filed a petition for resentencing pursuant to former section 1170.95 (now § 1172.6). (Stats. 2018, ch. 1015, § 4.) Former section 1170.95, like section 1172.6, allowed individuals convicted of felony murder or murder under the natural and probable consequences doctrine to petition the superior court to vacate the conviction under recent changes to the law that limited the scope of the felony murder rule to individuals who were major participants in the underlying felony who acted with reckless indifference to human life, and eliminated the natural and probable consequences theory of liability for murder. After briefing and argument by the parties, the superior court denied the petition, determining that the jury’s special circumstance findings barred entitlement to relief. Defendant challenged the denial of his petition. He contended that the felony- murder special circumstance findings (§ 190.2, subd. (a)(17)) that were made by the jury in 1993, before the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which construed the felony-murder special circumstance statute, do not preclude him from making a prima facie showing of eligibility for relief under former section 1170.95. We reversed the superior court’s order, and the California Supreme Court granted review and held this case pending its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong). After it decided Strong, it remanded this case for reconsideration in light of Strong. We conclude that Strong requires us to reverse the court’s order and remand with directions to issue an order to show cause.