People v. Mendez CA4/2

Opinion

Filed 8/19/24 P. v. Mendez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E081434

v. (Super.Ct.No. FWV1303835)

DAVID MENDEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,

and Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for

Plaintiff and Respondent.

1 In 2015 a jury convicted David Mendez of murder and robbery. In 2022 Mendez

petitioned under Penal Code section 1172.61 alleging he could not be convicted of

murder under current law and seeking resentencing. After an evidentiary hearing, the

court denied the petition, finding Mendez was guilty of murder as a major participant in

the underlying crime who acted with reckless indifference to human life. Mendez argues

this finding was not supported by substantial evidence. We disagree and affirm.

BACKGROUND

Mendez was friends and coworkers with Jorge Cisneros, and the two frequently

went to lunch together. Cisneros was known by coworkers to have an affinity for guns

and violence. He sometimes showed coworkers pictures of guns and had magazines

about guns. One coworker later testified that Cisneros acted threatening and “tried to

fight me a couple times.” This same coworker testified Cisneros “would carry a weapon

and we were all just afraid that he might use it,” and he had mentioned wanting to get

into a gunfight. Cisneros brought a gun to work on at least one occasion. When a

coworker reported that Cisneros had brought a gun, both Mendez and Cisneros threatened

the coworker. Mendez’s nickname for Cisneros was “Matone,” which he testified was

Spanish for “killer.”

In November of that year Cisneros and Mendez left work for lunch. Instead of

getting food, the two went to a check cashing and payday loan store. When Mendez and

Cisneros arrived at the store, Cisneros showed Mendez that he had a gun. Mendez

1 Unlabeled statutory citations are to the Penal Code.

2 testified that until that point he did not know they planned to rob the store, and when he

expressed hesitation Cisneros threatened him with the gun. However, Mendez admitted

Cisneros did not have the gun in his hand when the two entered the store, which

surveillance footage shown to the jury confirmed.

The victim, an employee at the store, was the only person there when Cisneros and

Mendez arrived. The victim was on the phone with a colleague when the two entered.

Video footage shows Cisneros, who was not wearing a mask or any other clothing to

conceal his identity, entering first. He held the door for a man wearing a mask, who

Mendez later admitted was him. Cisneros proceeded towards the victim while Mendez

stayed back. When Cisneros arrived at the victim’s desk, he pulled a gun and fired it at

her from a short distance. The colleague on the phone with the victim heard her scream

and then heard a loud thump. The victim immediately fell off her chair and onto the

floor, where she remained. At the same moment, Mendez sprinted from near the entrance

of the store—well behind Cisneros—to behind the desk. Despite moving directly past the

victim Mendez did not attempt to render any aid to her, and instead began rummaging

through the desk drawers. After an initial scramble, Cisneros began pointing to drawers,

directing Mendez to check or double-check them. The colleague on the phone heard two

men speaking in Spanish, one saying, “[o]ver there. Over there,” and the other

responding “[t]here?” The victim was lying down behind the desk, still alive, while

Mendez stepped around her to go through the drawers. Cisneros then exited the store

ahead of Mendez, without looking back. Mendez sprinted to follow.

3 Cisneros and Mendez were in the store for just over 30 seconds. The victim could

still be seen moving until the footage ended about 20 seconds after Mendez and Cisneros

left. Cisneros and Mendez stole a total of $600. Mendez later admitted that he did not

object to the shooting or attempt to render aid, but claimed this was because he was afraid

of Cisneros.

The colleague on the phone called the police, who arrived shortly afterward.

When police arrived the victim was unresponsive, and she was pronounced dead at the

hospital.

Mendez and Cisneros returned to work after the killing. After work, Mendez

bought pizza and took it home to his family.

The San Bernardino County District Attorney charged Mendez with murder

(§ 187, subd. (a)) and robbery (§ 211). They also alleged the special circumstance that

the murder was committed in the course of a robbery. (§ 190.2, subd. (a)(17).) In 2015 a

jury convicted Mendez on both counts and found the special circumstance true.

In 2022 Mendez petitioned under what is now section 1172.6. The court issued an

order to show cause and held an evidentiary hearing. The parties submitted the reporter’s

transcript from Mendez’s appeal from his conviction, as well as the surveillance video

footage. After reviewing this evidence and hearing argument, the court denied Mendez’s

petition, concluding he was a major participant in the robbery who acted with reckless

indifference to human life. The court found Mendez’s claim that he was forced to

participate unconvincing, highlighting several discrepancies between Mendez’s testimony

4 and the surveillance footage. Specifically, Mendez said Cisneros was pointing the gun at

him while the two were at the door of the store “[b]ut . . . there is no indication of that on

the video.” In addition, Mendez “testified that he went into the business first with

Cisneros behind him,” but the video showed Cisneros entering first. The court also

provided a detailed analysis of the factors regarding major participation and reckless

indifference to human life, finding—among other things—that Mendez knew Cisneros

was “preoccupied with guns and killing,” knew Cisneros actually had a gun, acted

without hesitation once Cisneros fired at the victim, did not try to warn the victim, and

did not otherwise attempt to aid the victim at all.

DISCUSSION

Mendez argues there was insufficient evidence for the judge to find either that he

was a major participant in the robbery or that he acted with reckless indifference to

human life, and therefore he is entitled to be resentenced under section 1172.6.

In 2018, the Legislature passed Senate Bill No. 1437 (Senate Bill 1437), effective

January 1, 2019, which among other things, amended the definition of felony-murder in

section 189. This amended felony-murder rule restricted culpability for murder to actual

killers, aiders and abettors, and anyone who was “a major participant in the underlying

felony and acted with reckless indifference to human life” unless the victim was a peace

officer. (§ 189, subd. (e)(1)-(3), (f).) Senate Bill 1437 also added what is now

section 1172.6, which allows “[a] person convicted of felony murder or murder under the

natural and probable consequences doctrine,” to “file a petition with the court that

5 sentenced the petitioner to have the petitioner’s murder . . . conviction vacated and to be

resentenced on any remaining counts,” if, among other things, “[t]he petitioner could not

presently be convicted of murder” (§ 1172.6, subd. (a)), because of the changes to the law

wrought by Senate Bill 1437. (§ 1172.6, subd. (a)(3).) If the petition makes a prima

facie case for relief, the court must hold an evidentiary hearing. At this hearing, the

People have the burden to prove beyond a reasonable doubt that the petitioner is guilty of

murder under the law as it exists now, with the trial judge sitting as factfinder. (§ 1172.6,

subds. (b), (d)(3).)

In People v. Banks (2015) 61 Cal.4th 788, 798 (Banks), our Supreme Court

defined “ ‘major participant’ ” in an underlying felony, while in People v. Clark (2016)

63 Cal.4th 522 (Clark), it addressed how to determine whether a defendant acted with

“reckless indifference to human life.” (Id. at pp. 614-623.)

The factors relevant to assessing whether a defendant was a major participant in an

underlying felony, set out in Banks, are: “What role did the defendant have in planning

the criminal enterprise that led to one or more deaths? What role did the defendant have

in supplying or using lethal weapons? What awareness did the defendant have of

particular dangers posed by the nature of the crime, weapons used, or past experience or

conduct of the other participants? Was the defendant present at the scene of the killing,

in a position to facilitate or prevent the actual murder, and did his or her own actions or

inaction play a particular role in the death?” and “[w]hat did the defendant do after lethal

force was used?” (Banks, supra, 61 Cal.4th at p. 803.) The court emphasized that no one

6 factor was determinative but that “[a]ll may be weighed in determining the ultimate

question, whether the defendant’s participation ‘in criminal activities known to carry a

grave risk of death’ [citation] was sufficiently significant to be considered ‘major.’ ”

(Id. at p. 803.)

In Clark, the Court summarized the necessary state of mental culpability for

reckless indifference to human life as “encompass[ing] a willingness to kill (or to assist

another in killing) to achieve a distinct aim, even if the defendant does not specifically

desire that death as the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.) The

court cited the Model Penal Code’s definition of recklessness approvingly, which

requires a person “ ‘consciously disregard[] a substantial and unjustifiable risk that the

material element exists or will result from his conduct. The risk must be of such a nature

and degree that, considering the nature and purpose of the actor’s conduct and the

circumstances known to him, its disregard involves a gross deviation from the standard of

conduct that a law-abiding person would observe in the actor’s situation.’ ” (Clark, at

p. 617.) “This definition encompasses both subjective and objective elements. The

subjective element is the defendant’s conscious disregard of risks known to him or her.

But recklessness is not determined merely by reference to a defendant’s subjective

feeling that he or she is engaging in risky activities. Rather, recklessness is also

determined by an objective standard, namely what ‘a law-abiding person would observe

in the actor’s situation.’ ” (Ibid.)

7 In Clark, the Court offered a list of nonexclusive factors to consider in

determining whether a defendant acted with reckless indifference to human life. These

factors are (1) the defendant’s “[k]nowledge of [w]eapons, and [u]se and [n]umber of

[w]eapons”; (2) their “[p]hysical [p]resence at the [c]rime and [o]pportunities to [r]estrain

the [c]rime and/or [a]id the [v]ictim”; (3) the “[d]uration of the [f]elony” (italics omitted);

(4) the defendant’s knowledge of the likelihood his cohorts will kill; and (5) their efforts

to minimize the risks of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-

621.) The Court emphasized that, as with the Banks factors, “ ‘[n]o one of these

considerations is necessary, nor is any one of them necessarily sufficient.’ ” (Clark, at

p. 618.)

While the trial judge must consider the evidence under a reasonable doubt

standard, we review the trial judge’s factual findings for substantial evidence. (People v.

Clements (2022) 75 Cal.App.5th 276, 298.) Under this standard “[w]e ‘ “examine the

entire record in the light most favorable to the judgment to determine whether it contains

substantial evidence—that is, evidence that is reasonable, credible, and of solid value that

would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable

doubt.” ’ ” (Ibid.) We view the evidence in a light most favorable to the judgment and

“presume ‘ “ ‘every fact in support of the judgment the trier of fact could have reasonably

deduced from the evidence.’ ” ’ ” (People v. Hill (2024) 100 Cal.App.5th 1055, 1066.)

“We will not reverse unless there is no hypothesis upon which sufficient substantial

8 evidence exists to support the trial court’s decision.” (People v. Didyavong (2023)

90 Cal.App.5th 85, 97.)

We find there was substantial evidence to support the trial court’s finding that

Mendez was a major participant in the robbery who acted with reckless indifference to

human life.

There is little question Mendez was a major participant in the robbery. Even

accepting as true that Mendez did not know Cisneros planned to rob the store, the

surveillance video shows Mendez fully cooperating. Indeed, Mendez was the only

person who personally stole anything. He rummaged through the drawers, presumably

looking for whatever he could take. Cisneros directed Mendez’s theft, but Mendez took

the goods. There was also evidence that Mendez did, in fact, play some role in planning

the crime. The surveillance footage shows Mendez reacted immediately to the shooting,

sprinting to open the drawers behind the counter before the victim’s body had even hit

the floor. Once there, Cisneros did not have to direct him much nor explain what he

should be looking for, merely pointing at drawers. The trial judge could have reasonably

concluded this indicated some level of pre-planning or at least understanding between

Cisneros and Mendez. Mendez also knew Cisneros was a hothead who was often armed

and had expressed some violent tendencies prior to this date. He knew Cisneros was

armed before the robbery commenced. Though Mendez was not physically next to

Cisneros when Cisneros pulled the trigger, he could have attempted to stop or stall

Cisneros at any point before the shooting, or even just warn the victim. But he did none

9 of these things. Finally, Mendez’s actions after the death showed no remorse nor concern

for the victim. Mendez did not attempt to render aid, report the shooting, or report that

there was a victim in need of aid. Thus, there is at least some evidence to satisfy all or

nearly all of the Banks factors, and therefore plenty to conclude Mendez was a major

participant.

There is also sufficient evidence to find Mendez acted with reckless indifference

to human life. The requirements to be a major participant “ ‘significantly overlap’ ” with

those required to show reckless indifference to human life because “ ‘the greater the

defendant’s participation in the felony murder, the more likely that he acted with reckless

indifference to human life.’ ” (Clark, supra, 63 Cal.4th at p. 615.) As noted above,

Mendez knew Cisneros had a gun and planned to use it. He was also able to restrain

Cisneros and made no effort to do so or to otherwise minimize the risks of violence.

Perhaps most importantly, Mendez made absolutely no effort to aid the victim. He did

not try to warn her Cisneros had a gun. He did not try to render aid. To the contrary,

Mendez had to move around the victim’s body as she lay dying to steal from the drawers.

Mendez had no way of knowing that the victim would not live much longer, and the

surveillance footage shows she was still alive when he left. Despite this, he did not call

for medical aid or for police, even anonymously.

The only factor in Mendez’s favor is that the crime was short, and Cisneros killed

the victim without warning and within seconds of them entering the store. Because of

this, Mendez’s opportunities to prevent violence were fleeting, and he may have been

10 genuinely shocked when Cisneros shot the victim. Nevertheless, Mendez’s actions

thereafter were “ ‘a gross deviation from the standard of conduct that a law-abiding

person would observe in the actor’s situation,’ ” and were sufficient for the trial court to

find he acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at

p. 617.)

Accordingly, we affirm the trial court’s order denying Mendez’s petition under

section 1172.6.

DISPOSITION

We affirm.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.

We concur:

MILLER Acting P. J.

MENETREZ J.