Opinion
B301095
04-30-2020
THE PEOPLE, Plaintiff and Respondent, v. MONICA MERCADO, Defendant and Appellant.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. TA105988 APPEAL from an order of the Superior Court of Los Angeles County, H. Clay Jacke II, Judge. Affirmed. Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2010 a jury convicted defendant and appellant Monica Mercado of the second degree murder of an unborn baby and of the attempted murder of the baby's mother, Porsche Davis. The jury found true allegations that Mercado personally inflicted great bodily injury on Davis and inflicted injury knowing Davis was pregnant. We affirmed Mercado's conviction in 2013. (People v. Mercado (2013) 216 Cal.App.4th 67 (Mercado).)
After Senate Bill No. 1437 (SB 1437) took effect, Mercado filed on March 7, 2019 a petition for resentencing under Penal Code section 1170.95. On a downloadable form prepared by Re:Store Justice, a cosponsor of the legislation (see People v. Verdugo (2020) 44 Cal.App.5th 320, 324, review granted Mar. 18, 2020, S260493 (Verdugo)), Mercado checked a box numbered 2a stating, "At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine." On March 29, 2019, the trial court issued an order asking the District Attorney or the Attorney General to file an informal letter response to Mercado's petition within 30 days. The order allowed Mercado to file a reply.
References to statutes are to the Penal Code.
Mercado did not check boxes 1 or 3 even though the form states, "Note: Box 1, Box 2a or 2b, and Box 3 must all apply in order to be resentenced under Penal Code § 1170.95." Although Mercado checked box 8 stating, "I have mailed a copy of this Petition to the following," she left all of the spaces for the Office of the District Attorney, the Office of the Public Defender, and the trial attorney blank. The District Attorney's Office nonetheless apparently received a copy of Mercado's petition—presumably from the trial court—as it filed a written response on May 9, 2019. On December 31, 2019, Mercado (acting in propria persona even though she has court-appointed counsel on appeal) mailed to this court a handwritten letter with a new petition form. On the form—which Mercado refers to as her "corrected and completed Petition"—she has checked boxes 1, 2a, 3, 4, 6, and 8.
On May 9, 2019, the District Attorney filed a formal pleading contending Mercado was ineligible for resentencing under section 1170.95 because she was convicted of murder "as an actual killer and not [under] either felony murder or natural and probable consequences theories of culpability." The District Attorney argued Mercado had "failed to make a prima facie showing that she is eligible for resentencing because [she] was the actual killer who personally ran over the pregnant woman with the intent to kill her and killed her unborn child." (Emphasis omitted.) The District Attorney attached a copy of our 2013 opinion affirming Mercado's conviction.
The District Attorney also argued SB 1437 is unconstitutional. The trial court did not reach or address that contention.
On July 18, 2019, the trial court summarily denied Mercado's petition. The court stated Mercado "is not entitled to relief as a matter of law." The court noted, "The appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was the actual killer and was convicted of murder on a theory of being the direct perpetrator and not on a theory of felony murder of any degree, or a theory of natural and probable consequences."
Mercado appealed and we appointed counsel to represent her. After examining the record, counsel filed an opening brief raising no issues and asking this court independently to review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). On December 17, 2019, counsel sent Mercado a letter notifying her that counsel intended to file a Wende brief and that Mercado could file a supplemental brief. On January 17, 2020, Mercado submitted a form "Petition for Writ of Habeas Corpus" on which she had written "Supplemental Brief to Wende." We treat the writ petition as a supplemental brief.
On January 17, Mercado also filed a pleading entitled "Motion for Marsden Hearing; Substitution of Counsel." On January 27, we issued an order asking appellate counsel to respond to the Marsden motion. Counsel did so in a letter submitted ex parte and under seal on January 31, 2020.
People v. Marsden (1970) 2 Cal.3d 118.
SB 1437 " 'amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who [was] not the actual killer . . . .' " (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018, ch. 1015, § 1(f); Pen. Code, § 189, subd. (e)(1).) On both her original petition and the petition she mailed to this court in late December, Mercado did not check the box that says "I was not the actual killer." She left those boxes blank.
Mercado's written submissions do not make clear whether she is seeking resentencing on her murder conviction only or on both that conviction and her conviction for attempted murder. Some of her statements suggest she is asking for resentencing on both. As the law now stands, resentencing under section 1170.95 is available only for murder convictions. (People v. Lopez (2019) 38 Cal.App.5th 1087, review granted Nov. 13, 2019, S258175; People v. Munoz (2019) 39 Cal.App.5th 738, review granted Nov. 26, 2019, S258234; but see People v. Medrano (2019) 42 Cal.App.5th 1001 , review granted Mar. 11, 2020, S259948.) The California Supreme Court has granted review on the issue.
In her supplemental brief, Mercado states she "accepts responsibility for her actions, and she is very sorry for the harm she caused Ms. Davis." She says she "does not dispute Ms. Davis was injured, and being hit by the car terminated her pregnancy." Mercado asserts that, because of a "physical altercation" with her passenger, she "was highly irrational and continued to drive forward when [she] hit Ms. Davis." Mercado writes she "seeks an equitable sentence of [i]nvoluntary manslaughter or manslaughter for Ms. Davis['s] unborn child, plus attempted manslaughter or assault on Ms. Davis. And she seeks consolidation of the offenses (P.C. 954) due to duplicity [sic] of conviction." Mercado asserts she "did not have malice or intent."
In short, Mercado does not deny being the direct perpetrator. That admission is consistent with the facts stated in our opinion affirming Mercado's convictions: Mercado and Davis had been fighting for three years over a man named Bryant Waller. Davis was eight months pregnant with Waller's child. On an April morning in 2009, Davis saw Waller in the passenger seat of Mercado's Range Rover. Mercado was driving. Davis asked Waller for the keys to their (Waller's and Davis's) car. Mercado called Davis a bitch and Davis threw a cup of orange juice into the Range Rover. (Mercado, supra, 216 Cal.App.4th at p. 71.)
Mercado turned into a driveway, backed out, and started driving down the street. According to Waller, Mercado said, "Oh, I'm going to kill this bitch." Mercado drove "right toward" Davis. As Waller put it when he spoke to the police, Mercado "backs up and then she guns towards my girl. And runs her over." (Mercado, supra, 216 Cal.App.4th at p. 72.)
Davis put her hands on the hood of the Range Rover, curled into a ball, and held her stomach. Mercado drove the Range Rover over Davis. An eyewitness sitting on his porch that morning heard Davis's "bones being crushed as Mercado ran over her with the car's front and back tires." (Mercado, supra, 216 Cal.App.4th at pp. 71, 73.) Davis later said, "I just felt my baby go in my back and that was it. . . . And my stomach just went flat instantly." (Id. at p. 71.)
Davis suffered a cracked pelvis, broken ribs, and injuries to her spine and shoulder. (Mercado, supra, 216 Cal.App.4th at p. 71.) Her baby daughter was delivered by emergency cesarean section. "The baby was almost dead at birth, her heart beating only occasionally. Her skull had been fractured . . . and there was extensive internal head bleeding. . . . When life support was disconnected, the baby died within minutes." (Id. at p. 74.)
As the actual killer of the baby, Mercado is not eligible for resentencing under section 1170.95. (See §§ 189, subd. (e)(1), 190.2, subds. (b), (c), (d); Verdugo, supra, 44 Cal.App.5th at pp. 325-326; People v. Cornelius (2020) 44 Cal.App.5th 54, review granted Mar. 18, 2020, S260410 [affirming summary denial of resentencing petition where petitioner was the actual killer who discharged a firearm causing death].) Nothing in the record supports Mercado's allegation that she was convicted under the felony murder rule or the natural and probable consequences doctrine. Mercado was not charged, tried, or convicted as an aider and abettor or under the felony murder rule.
In her supplemental brief, Mercado states her "hearing was unfairly denied without the aid of counsel, held in judge[']s chambers." But where, as here, "readily available portions of the record of conviction" demonstrate the petitioner is "ineligible for relief as a matter of law," the court need not appoint counsel. (Verdugo, supra, 44 Cal.App.5th at pp. 323, 332-333; People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598 [trial court properly considered record of conviction, including court of appeal's opinion affirming conviction, in making threshold determination whether petitioner falls within the provisions of the statute].)
As for Mercado's Marsden motion, we have reviewed the record along with the briefs filed by appointed counsel and Mercado. We are satisfied that that Mercado's counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra, 25 Cal.3d at pp. 441-442.) Mercado is not eligible for resentencing under SB 1437 because she is the person who drove her Range Rover directly at Davis, running over her, seriously injuring her, and killing her unborn child.
Mercado's contention that, in convicting her of the attempted murder of Davis, her jury was "confused" is meritless. The jury found Mercado guilty of attempted murder and found not true the allegation that the attempted murder was committed willfully, deliberately, and with premeditation. Accordingly, the jury found Mercado drove her Range Rover over Davis with the specific intent to kill (see People v. Guerra (1985) 40 Cal.3d 377, 386; CALCRIM No. 600) but that she acted "rashly, impulsively, or without careful consideration of the choice and its consequences." (CALCRIM No. 601.) There is no inconsistency in this verdict, and no evidence of "confusion."
Mercado also seizes on one statement by a deputy probation officer in the presentence report that she is not "a violent person." Mercado overlooks the officer's statements on the same page that, "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness" and "[t]he crime involved multiple victims."
DISPOSITION
We affirm the trial court's denial of Monica Mercado's petition for resentencing under Penal Code section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. I concur:
DHANIDINA, J. LAVIN, J., Concurring:
In her form petition for resentencing under Penal Code section 1170.95, defendant Monica Mercado checked a box stating she was convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine. Defendant concedes, however, that she was the actual killer of the pregnant victim's unborn baby. For example, defendant states the pregnant victim, Porsche Davis, "was injured, and being hit by the car terminated her pregnancy." Defendant also states she "was highly irrational and continued to drive forward when [defendant] hit Ms. Davis." As the actual killer of the unborn baby, defendant is not eligible for resentencing under section 1170.95 and, therefore, the trial court's order should be affirmed. (See People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)
All undesignated statutory references are to the Penal Code. --------
LAVIN, Acting P. J.