People v. Mendez CA2/2

Filed 6/28/24 P. v. Mendez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B333905

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA055071) v.

DAVID MENDEZ,

Defendant and Appellant.

THE COURT: David Mendez appeals the order of the superior court denying his postjudgment petition for resentencing under Penal Code1 section 1172.6. (Former § 1170.95, Stats. 2022, ch. 58, § 10.) We appointed counsel to represent Mendez on appeal. After examination of the record, counsel filed an opening brief raising no issues and requesting that we exercise our discretion to independently review the record for arguable issues pursuant

1 Undesignated statutory references are to the Penal Code.

to People v. Delgadillo (2022) 14 Cal.5th 216, 228–232 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436, 441–442 (Wende). (People v. Griffin (2022) 85 Cal.App.5th 329, 333.) Mendez filed a supplemental brief in which he asserts that his 2002 conviction must be reexamined in light of new DNA evidence that, if presented at his trial, would likely have resulted in a different outcome. In support of his contention, Mendez submits a supplemental DNA Analysis Report by the Los Angeles County Sheriff’s Department Scientific Services Bureau dated March 24, 2018. We affirm the superior court’s denial of Mendez’s petition for resentencing under section 1172.6, and reject the claim asserted in his supplemental brief. PROCEDURAL BACKGROUND Mendez was convicted by jury of the 2001 attempted willful, deliberate and premeditated murder of Tommy Partida (§§ 664/187, subd. (a); count 1), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2). The jury further found that Mendez personally used and intentionally discharged a firearm, causing great bodily injury resulting in paralysis. (Pen. Code, §§ 12022.7, subd. (b), 12022.5, subd. (a)(1), 12022.53, subds. (b), (c) & (d).) The trial court sentenced Mendez to an aggregate term of 39 years to life in prison. On June 30, 2022, Mendez filed a section 1172.6 petition for resentencing. The superior court appointed counsel, and the district attorney filed an informal response to the petition. Defense counsel did not file a reply. In its response, the prosecution argued that because the jury was not instructed on felony murder or the natural and probable consequences doctrine,