People v. Mendez CA5

Filed 12/7/22 P. v. Mendez CA5 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081193 Plaintiff and Respondent, (Super. Ct. No. CF93485197) v.

SCOTT ALLEN MITCHELL MENDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric M. Christoffersen, Lewis A. Martinez, Jennifer Oleska and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P. J., Smith, J. and Snauffer, J.

INTRODUCTION Appellant Scott Allen Mitchell-Mendez appeals the trial court’s denial of his petition for resentencing filed under former Penal Code section 1170.95.1 We previously affirmed the court’s order in an unpublished opinion (People v. Mitchell-Mendez (November 15, 2021, F081193 [nonpub. opn.]), concluding that Mitchell-Mendez was ineligible for relief as a matter of law based upon the jury’s finding that the murder occurred during the commission of a robbery, and that Mitchell-Mendez had acted as a major participant in the robbery with reckless indifference to human life. (Pen. Code,2 § 190.2, subd. (a)(17).) Our Supreme Court granted review of Mitchell-Mendez’s case and transferred the matter back to this court with directions to vacate our decision and to reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). In Strong, our Supreme Court held that a pre-Banks/Clark3 felony-murder special circumstance finding does not render a former section 1170.95 petitioner ineligible for relief as a matter of law. (Strong, at p. 703.) We invited the parties to submit supplemental briefing concerning the effect of Strong on Mitchel-Mendez’s case. Mitchell-Mendez argued that Strong compels reversal of the trial court’s order. The Attorney General agrees. In conformity with our Supreme Court’s directive, we order our prior decision vacated and for the reasons stated herein, we reverse the trial court’s order denying Mitchell-Mendez’s petition for resentencing. On remand, the trial court is directed to