Opinion
G057944
11-13-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO JUAN MERCADO, Defendant and Appellant.
Antonio Juan Mercado, in pro. per.; and Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. C-89270) OPINION Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Antonio Juan Mercado, in pro. per.; and Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Antonio Juan Mercado (defendant) filed a notice of appeal from an order denying his petition under Penal Code section 1170.95 (further code references are to the Penal Code). His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. The brief included a declaration from counsel that he sent a letter to defendant explaining his evaluation of the record. Counsel further declared he advised defendant of his right, under Wende, to submit a supplemental brief.
This court also advised defendant by order of his right to file a supplemental brief. In response, on September 19, 2019, defendant filed a letter, which this court treated as a request (1) for a 90-day extension of time to file appellant's supplemental brief, (2) for appointment of new appellate counsel, (3) for Appellate Defenders, Inc. to find and provide specialized counsel, and (4) to withdraw the Wende brief filed on August 29, 2019. We denied the requested relief. On our own motion, we extended the time for defendant to file a supplement brief until October 19, 2019. Defendant timely filed a supplemental brief.
We have reviewed counsel's brief and defendant's supplemental brief and have examined the record in accordance with our obligations under Wende. We find no arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel identified two suggested issues to assist us in conducting our independent review: (1) whether defendant's section 1170.95 petition stated a prima facie case for relief and (2) whether the trial court was required to appointment defendant counsel before denying the petition. Neither issue has merit. Accordingly, we affirm.
In December 1991, defendant was charged by information with murder by lying in wait within the meaning of section 190.2, subdivision (a)(15) and with an enhancement for personal use of a deadly weapon. In 1992, he pleaded guilty to the murder charge and admitted the deadly weapon enchancement. As the factual basis for the plea, defendant wrote: "[O]n 11-11-90 in Orange County I unlawfully killed a human being, Alberto Garcia, with express malice by means of a hammer, with premeditation and deliberation and with a specific intent to kill." Defendant was sentenced to a prison term of 26 years to life.
In May 2019, defendant, acting in propria persona, filed a petition for resentencing and modification of sentence, which the trial court construed as a petition for resentencing pursuant to section 1170.95. Defendant did not ask for appointment of counsel. The trial court denied the petition and a hearing on the ground the petition did not set forth a prima facie case for relief under section 1170.95.
Under subdivision (a) of section 1170.95, "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." Defendant was not convicted of felony murder or murder under a natural and probable consequences theory: He was charged with, and pleaded guilty to, deliberate and premeditated murder, as the perpetrator, by lying in wait and with use of a deadly weapon. Defendant failed to make a prima facie showing of eligibility under section 1170.95.
Defendant was not entitled to appointment of counsel because he did not make a prima facie showing for relief. (§ 1170.95, subd. (c).) Any conceivable error by the trial court in not appointing counsel was harmless beyond a reasonable doubt. It is undisputed defendant was not convicted of felony murder or murder under a natural and probable consequences theory. His appointed appellate counsel, who reviewed the entire record, does not contend otherwise.
We have reviewed and considered Mercado's 16-page supplemental brief, the attachments, and Mercado's "Order of Instructions." We are unable to discern from them any legal issues or contentions relevant to the denial of Mercado' request for relief under section 1170.95. The first 10 pages of the supplemental brief are replete with historical, biblical, literary, pop culture, and cinematic references that bear no relation to the appeal. Defendant states he ordered appointed counsel "not to file a Wende brief[,] but [to] file a Brady [v. Maryland (1963) 373 U.S. 83] brief." He complains of the suppression of "tapes," but does not challenge the trial court's decision to deny his petition pursuant to section 1170.95. Defendant includes language that contradicts the factual statements he made to the trial court when he entered his guilty pleas, but does not seek to withdraw the plea itself. He suggests he is mentally deficient and acted in self-defense as a result of a "fight-or-flight hormonal reaction."
The order denying defendant's petition pursuant to section 1170.95 is affirmed.
DUNNING, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.
Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------