Opinion
F086173
12-16-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LUA MENDOZA, Defendant and Appellant.
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF127760 . Melinda Myrle Reed, Judge.
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
In 2005, a jury convicted appellant Daniel Lua Mendoza of multiple felonies, including three counts of premeditated attempted murder.
In 2023, appellant filed a petition for resentencing, contending he could no longer be convicted of attempted murder because of retroactive amendments to the Penal Code. The trial court denied the petition at the prima facie stage.
Appellant asserts that the trial court erred because it failed to provide a statement setting forth its reasons. We agree that the court failed to clarify exactly why it was denying the petition, but we find the error harmless. Regarding appellant's other claim, respondent concedes-and we agree-that appellant is entitled to additional custody credits. We shall direct the lower court to calculate the appropriate credits and issue amended abstracts of judgment. We affirm the denial of the petition for resentencing.
BACKGROUND
Appellant was the driver in two drive-by shootings that occurred in 2004. Appellant's passenger fired a handgun out the passenger window at two houses. One victim was struck in the chest by a bullet, but he survived. The prosecution established a gang motive for this shooting. (People v. Mendoza (May 9, 2007, F049353) [nonpub. opn.].)
In 2005, a jury convicted appellant "of three counts of attempted premeditated murder (counts 1, 4 &5), two counts of shooting at an inhabited dwelling (counts 2 &6), and two counts of permitting another to shoot from a vehicle (counts 3 &7). Street gang enhancements were found true in connection with all the counts. It was found on count 1 that a principal personally and intentionally discharged a firearm proximately causing bodily injury and it was found on counts 4 and 5 that a principal personally and intentionally discharged a firearm. Appellant was sentenced to an aggregate term of 59 years to life imprisonment." (People v. Mendoza, supra, F049353).)
In 2007, this court affirmed appellant's judgment. However, respondent had conceded that certain sentencing errors had occurred. We vacated appellant's sentence and remanded for resentencing. (People v. Mendoza, supra, F049353).) That same year, appellant was resentenced. He again received an aggregate indeterminate term of 59 years to life.
On May 20, 2024, this court granted appellant's request for judicial notice regarding the appellate record in case number F049353.
In 2023, appellant filed his petition for resentencing. The trial court appointed counsel to represent appellant. The prosecution filed an opposition to the resentencing. The prosecutor correctly informed the court that the jury had not been instructed on the natural and probable consequences doctrine. However, the prosecutor erroneously informed the court that the jury had found true that appellant had personally discharged a firearm.
At the prima facie hearing, appellant's appointed counsel submitted the matter without offering any argument. The court denied the petition, stating that the "defense is agreeing there's a lack of a prima facie case as requested by the People." The court denied the petition without offering any additional details other than there was "no prima facie case." The written order states that appellant is "not eligible for relief."
The present appeal followed.
DISCUSSION
I. The Trial Court's Failure to Give Full Reasons for the Denial was Harmless Error.
Effective January 1, 2019, both the felony-murder rule and the natural and probable consequences doctrine were amended "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (People v. Reyes (2023) 97 Cal.App.5th 292, 295.) The Legislature created a petition process for those convicted under the former law to seek retroactive relief. (Ibid.)
Effective January 1, 2022, the petition process was expanded to include individuals convicted of attempted murder under the natural and probable consequences doctrine. (People v. Montes (2021) 71 Cal.App.5th 1001, 1006.) Effective June 30, 2022, the petition process was codified in Penal Code section 1172.6. (People v. Hurtado (2023) 89 Cal.App.5th 887, 889, fn. 2.) In general, three conditions are required to seek resentencing:
All future statutory references are to the Penal Code unless otherwise noted.
(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder liability that is now invalid (§ 1172.6, subd. (a)(1));
(2) Following a trial or the acceptance of a plea offer in lieu of a trial, the petitioner was convicted of manslaughter, murder, or attempted murder (§ 1172.6, subd. (a)(2)); and
(3) The petitioner could not presently be convicted of murder or attempted murder "because of changes" to the law (§ 1172.6, subd. (a)(3)).
An offender seeking resentencing must file a petition in the sentencing court and serve it on statutorily enumerated persons. Among other requirements, the petition must include a declaration from the petitioner that he is eligible for relief based on the three conditions summarized above. (§ 1172.6, subd. (b)(1)(A)-(C).) A petitioner may request the appointment of counsel. (Id., subd. (b)(1)(C).)
The trial court must appoint the requested counsel if the petition meets the filing requirements. (§ 1172.6, subd. (b)(1)(C)(3).) A briefing schedule is set. The prosecution must file a response. The petitioner may file a reply. (Id., subd. (c).) After the briefing is completed, the trial court must hold a hearing to determine whether the petitioner has made a prima facie case for relief. If so, the court must issue an order to show cause and hold an evidentiary hearing. The prosecution then bears the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder (or its attempt) under the law as amended. (§ 1172.6, subds. (c), (d)(1)-(3); see also People v. Wilson (2023) 14 Cal.5th 839, 869.)
The issue before us involves the requirement that, if the trial court declines to make an order to show cause following the filing of a petition for resentencing, the court shall "provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).) Appellant correctly observes that this record does not contain a statement of reasons detailing why the trial court denied the petition for resentencing at the prima facie stage.
Appellant contends the court violated his constitutional rights to due process under both the federal and state Constitutions. According to appellant, it is unclear how the court reached its conclusion so he cannot assess whether the court erred in denying his petition. Appellant argues that the court failed to create an adequate record, which has deprived him "of any chance to challenge the decision on appeal." Appellant seeks a remand so the court may provide a statement of reasons for the denial.
Respondent concedes that the trial court failed to provide a statement of reasons for the denial order. Respondent, however, asserts that appellant did not suffer prejudice. We agree with respondent, and we reject appellant's claim.
We review de novo the order denying this petition at the prima facie stage. (People v. Flores (2023) 96 Cal.App.5th 1164, 1170.) At this stage, a trial court may not engage in factfinding that requires the weighing of evidence. (Ibid.) However, "the court may consider jury instructions, jury verdicts, and other documents that are part of the record of conviction to determine whether the petitioner satisfies the conditions for relief." (Ibid.)
A person convicted of attempted murder is eligible for resentencing relief only if that conviction was based on the natural and probable consequences doctrine. (§ 1172.6, subd. (a); accord People v. Coley (2022) 77 Cal.App.5th 539, 548.) In other words, appellant's petition was properly denied "only if the record affirmatively demonstrates the jury did not rely on the natural and probable consequences doctrine." (People v. Lovejoy (2024) 101 Cal.App.5th 860, 865.)
Respondent is correct that appellant's jury was not instructed on the natural and probable consequences doctrine. Instead, the jury was instructed on a theory of direct aiding and abetting. Direct aiding and abetting remains a valid theory of attempted murder after the amendments to the murder statutes. (People v. Coley, supra, 77 Cal.App.5th at p. 548.) To find a defendant guilty of attempted murder on a theory of direct aiding and abetting, a jury must find the defendant knew another person intended to kill the victim, the defendant intended to aid and abet the other person in committing the killing, and the defendant did aid and abet the other person in taking the actions constituting the attempted murder. (People v. Johnson (2016) 62 Cal.4th 600, 640-641.)
Appellant's jury was told that appellant was charged in counts 1, 4 and 5 of having committed attempted murder. To prove these charges, the prosecution had to establish that (1) a direct but ineffectual act was done by one person towards killing another human being; and (2) the person committing the act harbored a specific intent to kill unlawfully another human being.
The jury was instructed that, as an aider and abettor, (1) appellant had to know the perpetrator's unlawful purpose; (2) he had to intend to commit, encourage or facilitate the commission of attempted murder, and (3) he had to aid, promote, encourage or instigate the commission of that crime. The jurors were instructed that, if they found appellant guilty of attempted murder, they had to determine whether the crime was willful, deliberate and premeditated. Those terms were defined for them.
In counts 1, 4 and 5, the jury found appellant guilty of premeditated attempted murder. Based on the instructions given to them, the jurors necessarily found that appellant was an aider and abettor who (1) knew his passenger was going to commit attempted murder; (2) appellant intended to commit, encourage or facilitate the commission of attempted murder; and (3) appellant aided, promoted, encouraged or instigated the commission of that crime.
Based on this record, appellant is not "[a] person convicted of . .. attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a).) The jury was never asked to find appellant guilty as an aider and abettor under that doctrine. Instead, the jury found that appellant acted as a direct aider and abettor who shared in the intent to kill. Therefore, we agree with respondent that the court's error in failing to provide a detailed statement was harmless. It is beyond a reasonable doubt that appellant did not suffer prejudice. (See Chapman v. California (1967) 386 U.S. 18, 24.) Likewise, it is not reasonably probable appellant would have a more favorable outcome absent this error. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Consequently, we will affirm the trial court's denial of the petition for resentencing.
II. Appellant Is Entitled to Additional Custody Credits, Which the Trial Court Shall Calculate.
The parties contend that appellant is entitled to additional custody credits. We agree. However, it appears that the parties have a calculation error. Instead of 1,289 days of custody credits, which the parties assert, it appears that appellant is entitled to 1,272 days of credit. We shall direct the trial court to calculate the appropriate custody credits, and to issue amended abstracts of judgment. (See People v. Buckhalter (2001) 26 Cal.4th 20, 37; People v. Fares (1993) 16 Cal.App.4th 954, 958.)
The limited record before us suggests that appellant was taken into custody on May 23, 2004. Appellant was originally sentenced in this matter on November 29, 2005.
The original indeterminate abstract of judgment awarded appellant only 191 days of presentence custody credits. However, the parties agree, as do we, that appellant was likely entitled to a total of 639 days. This is based on 556 days in custody, with another 83 days of credits under section 2933.1 (15 percent of worktime credit).
When appellant was resentenced in this matter in 2007, the trial court was required-but it failed-to update his custody credits. (See People v. Buckhalter, supra, 26 Cal.4th at p. 37 [when a trial court resentences a defendant on remand, it must credit all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing].) Appellant's current abstract of judgment erroneously states he is entitled to only 191 days of custody credits, with no local conduct credits.
The parties assert that appellant is entitled to a total of 1,289 days of custody credits. We disagree with that calculation, which is based on the date the amended abstracts of judgment were filed in the superior court following resentencing, September 10, 2007. To the contrary, the custody credits must be based on the date appellant was actually resentenced, August 24, 2007. (See People v. Buckhalter, supra, 26 Cal.4th at p. 37.)
Based on our limited record, it appears that appellant is entitled to 1,272 days of custody credits. In this situation, however, it is the superior court that should calculate the correct total. (§ 2900.5, subd. (d); People v. Fares, supra, 16 Cal.App.4th at p. 958; see also People v. Buckhalter, supra, 26 Cal.4th at p. 37 [following resentencing, a trial court is obligated to credit a defendant with all actual days in custody].) We direct the lower court to award the appropriate custody credits, and to amend the abstracts of judgment accordingly.
DISPOSITION
The trial court's denial of the resentencing petition is affirmed. This matter is remanded for the limited purpose of recalculating custody credits. The trial court shall verify appellant's total custody credits consistent with this opinion, update appellant's custody credits, and issue amended abstracts of judgment to the appropriate authorities. The recalculation should include all time served since appellant's initial incarceration, including presentence jail credits, and credits earned while incarcerated in prison prior to and through the resentencing date.
WE CONCUR: PENA, J. SNAUFFER, J.