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People v. Mendez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Jan 18, 2012
A128082 (Cal. Ct. App. Jan. 18, 2012)

Opinion

A128082

01-18-2012

THE PEOPLE, Plaintiff and Respondent, v. JESSE WILLIAM MENDEZ, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County

Super. Ct. No. C158737)

BY THE COURT:

IT IS ORDERED that the opinion filed on December 21, 2011, is modified as follows and the petition for rehearing is DENIED:

In connection with the petition for rehearing, appellant submitted a motion to augment on January 6, 2012, and an amended motion to augment on January 9, 2012. Denial of the petition for rehearing renders these motions moot.

1. On page 3, in part I, the first sentence of the first full paragraph is amended to read: "The Camaro eventually stopped, after making a right turn onto Parker Avenue from east-bound MacArthur."

2. On page 4, in part I, the second sentence of the last paragraph is amended to read: "One bullet slug was located on the sidewalk on the east side of Parker, next to the house at 7851 MacArthur Boulevard."

3. On page 4, in part I, the third sentence of the last paragraph is amended to read: "A fragment of a bullet was found on the north side of MacArthur, to the east of Parker, in a gutter."

4. On pages 4 and 5, in part I, the sentence that bridges the two pages is amended to read: "A bullet hole was located in an exterior panel of a house at 7850 MacArthur, on the north side of MacArthur."

5. On page 5, in part I, a new footnote is inserted after the second full sentence on the page, after the word "vest," to read: "Another officer, who had previously spoken with McDonald, told the technician that 'when [McDonald] approached the vehicle the driver of the vehicle reached over his shoulder and shot four times.' " Subsequent footnotes are renumbered accordingly.

6. On page 5, in part I, a new sentence is added as the final sentence to the fourth full paragraph on the page, to read: "2635 Parker was 1,237 feet from the scene of the shooting and close to the Garfield intersection."

7. On page 6, in part I, the third sentence of the first paragraph is amended to read: "Dye had long hair that was slicked back on the sides and pulled back in a ponytail."

8. On page 6, in part I, the sixth sentence of the last paragraph is amended to read: "Harper said the driver was not wearing his hair in dreadlocks or corn rows but, rather, had it 'slicked back' on the side of his head."

9. On page 9, in part I, a new sentence is added as the final sentence in the third full paragraph to read: "Rullamas thought Dye's appearance was similar to the appearance of Mendez in a photograph."

10. On pages 15 and 16, in part II.B.2., the last sentence that bridges the two pages is amended to read: "Second, even assuming that Mendez's trial counsel raised impeachment as a basis for admissibility, he did not make an adequate record that the out-of-court statement would, in fact, have impeachment value."

11. On page 16, in part II.B.2., the second full sentence is amended to read: "The trial record does not tell us whether these conditions are satisfied."

12. On page 16, in part II.B.2., beginning with the third full sentence, the remainder of the paragraph is amended to read: "Jones did testify, at the preliminary hearing, that he was told that the informant told Wingate he had actually seen the shooting and seen the person who had done the shooting go into the yard of 2635 Parker. But, Mendez's trial counsel did not alert the trial judge, who did not preside over the preliminary hearing, to Jones's prior testimony."

13. On page 17, in part II.B.2., the second sentence of the second full paragraph is amended to read: "Instead, he asked the jury to speculate, from the lighting conditions, McDonald's preoccupation with his flashlight, the fact that the passenger was, at times, out of McDonald's view, the missing photograph, the location of the bullets and casings, and the unanalyzed gunshot residue kit that such was the case."

14. On page 25, in part II.D., the third full sentence on the page, beginning "as we have observed . . ." is deleted.

15. On page 26, in part II.E., the second sentence is amended to read: "We have largely rejected Mendez's arguments on the merits."

This modification effects no change in the judgment.

_________________P.J.

* Before Jones, P.J., Simons, J., and Bruiniers, J.


Summaries of

People v. Mendez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Jan 18, 2012
A128082 (Cal. Ct. App. Jan. 18, 2012)
Case details for

People v. Mendez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JESSE WILLIAM MENDEZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 18, 2012

Citations

A128082 (Cal. Ct. App. Jan. 18, 2012)