Filed 12/7/22 P. v. Mendez CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT ALLEN MITCHELL MENDEZ,

Defendant and Appellant.

F081193

(Super. Ct. No. CF93485197)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. 

Skiles, Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric M. 

Christoffersen, Lewis A. Martinez, Jennifer Oleska and Amanda D. Cary, Deputy 

Attorneys General, for Plaintiff and Respondent. 

-ooOoo-

* Before Detjen, Acting P. J., Smith, J. and Snauffer, J.
2.

INTRODUCTION

Appellant Scott Allen Mitchell-Mendez appeals the trial court’s denial of his 

petition for resentencing filed under former Penal Code section 1170.95.1 We previously 

affirmed the court’s order in an unpublished opinion (People v. Mitchell-Mendez

(November 15, 2021, F081193 [nonpub. opn.]), concluding that Mitchell-Mendez was 

ineligible for relief as a matter of law based upon the jury’s finding that the murder 

occurred during the commission of a robbery, and that Mitchell-Mendez had acted as a 

major participant in the robbery with reckless indifference to human life. (Pen. Code,2

§ 190.2, subd. (a)(17).)

Our Supreme Court granted review of Mitchell-Mendez’s case and transferred the 

matter back to this court with directions to vacate our decision and to reconsider the 

cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). In Strong, our 

Supreme Court held that a pre-Banks/Clark3felony-murder special circumstance finding 

does not render a former section 1170.95 petitioner ineligible for relief as a matter of law. 

(Strong, at p. 703.) 

We invited the parties to submit supplemental briefing concerning the effect of 

Strong on Mitchel-Mendez’s case. Mitchell-Mendez argued that Strong compels reversal 

of the trial court’s order. The Attorney General agrees. 

In conformity with our Supreme Court’s directive, we order our prior decision 

vacated and for the reasons stated herein, we reverse the trial court’s order denying 

Mitchell-Mendez’s petition for resentencing. On remand, the trial court is directed to 

1 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no 

change in text (Stats. 2022, ch. 58, § 10). Mitchell-Mendez filed his petition prior to this 

renumbering, and he therefore referred to the statute as section 1170.95 in his petition. 

2 All undefined statutory citations are to the Penal Code unless otherwise indicated.

3 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 

522 (Clark).
3.

issue an order to show cause and to hold an evidentiary hearing on the petition (§ 1172.6, 

subds. (c)-(d)). 

PROCEDURAL HISTORY

On May 5, 1993, the Fresno County District Attorney filed an information 

charging Mitchell-Mendez, Demetrius Dixon, Valunt Montgomery with first degree 

murder (§ 187) and second degree robbery (§§ 211, former 212.5, subd. (b).) It was 

further alleged that the murder was committed during the course of a robbery (§ 190.2, 

subd. (a)(17)(A)), and that Mitchell-Mendez personally used a knife in the commission of

the murder and the robbery. 

On October 14, 1993, a jury found Mitchell-Mendez guilty on counts. The jury 

also found true the special circumstance (§ 190.2, subd. (a)(17)(A)), but found not true 

the enhancement alleging Mitchell-Mendez had personally used a knife in the 

commission of the offenses. 

On November 19, 1993, Mitchell-Mendez was sentenced to an indeterminate term 

of life without the possibility of parole. 

On April 10, 1996, this court affirmed Mitchell-Mendez’s judgment of conviction 

following his direct appeal in People v. Mendez et. al. (Apr. 10, 1996, F020673 [unpub. 

opn.]).

On January 1, 2019, Senate Bill No. 1437 became effective. (Stats. 2018, ch. 

1015.) That measure amended sections 188 and 189 eliminating the felony murder rule 

and the natural and probable consequences doctrine as these theories of vicarious liability

relate to murder. (Stats. 2018, ch. 1015, §§ 2, 3.)

On January 25, 2019, Mitchell-Mendez filed a petition for resentencing under 

former section 1170.95. His petition was denied for failing to include a signed 

declaration. 

On May 29, 2019, Mitchell-Mendez filed a renewed petition for resentencing. 
4.

On March 17, 2020, the superior court issued a written order denying MitchellMendez’s petition. The superior court’s order observed that Mitchell-Mendez was 

convicted of a special circumstance based on the fact that the murder occurred during the 

commission of a robbery (§ 190.2, subd. (a)(17)). The jury’s true finding on the special 

circumstance necessarily required the jury to find Mitchell-Mendez was a major 

participant in the robbery and that he had acted with reckless indifference to human life. 

On appeal, this court affirmed the special circumstance, finding substantial evidence in 

support of the jury’s finding. (People v. Mendez et. al., supra, F020673, pp. 84-85.) The 

superior court concluded the special circumstance finding excluded Mitchell-Mendez 

from relief under former section 1170.95 as a matter of law. 

On November 15, 2021, this court affirmed the trial court’s order denying 

Mitchell-Mendez’s petition for resentencing. (People v. Mitchell-Mendez, supra,

F081193.) 

On October 26, 2022, following a petition for review filed by Mitchell-Mendez, 

our Supreme Court granted review of Mitchell-Mendez’s case and transferred the matter 

back to this court with directions to vacate our prior decision and to reconsider the matter

in light of Strong.

FACTS

The following statement of facts are derived from this court’s unpublished opinion 

in People v. Mendez et. al., supra, F020673. This factual summary is recited for the 

limited purpose of providing context to Mitchell-Mendez’s criminal conviction:

On November 15, 1992, at approximately 2:37 a.m., Fresno Police Officer 

Robinson responded to a report of a deceased person at an apartment complex on North 

Hughes in Fresno. Jaime Irizarry was found lying face down, dead in the parking stall of 

the apartment complex. His throat had been slit and he had a small puncture wound in 

his back. Both of Irizarry’s wounds were consistent with having been inflicted from 

behind by a left-handed person. Irizarry’s keys and his vehicle were missing. 
5.

On November 23, 1992, Irizarry’s vehicle was found behind the residence of 

Donna Lane, a woman with whom Mitchell-Mendez was acquainted. The vehicle had 

been stripped, and the vehicle identification number had been destroyed. 

On November 24, 1992, Irizarry’s chrome rims were found on Mitchell-Mendez’s 

vehicle and Irizarry’s keys were found in Mitchell-Mendez’s bedroom. Mitchell-Mendez 

was arrested. In a voluntary statement he made to police, he told Fresno Police Detective 

Wells that he, Eric Beeks, Montgomery, and Dixon were driving around looking for a set 

of car wheels to steal. Mitchell-Mendez began following Irizarry’s vehicle which he 

thought had a nice set of wheels on it. 

The group followed Irizarry back to his apartment complex, where they discussed 

stealing Irizarry’s vehicle. According to Mitchell-Mendez, he and Beeks waited in the 

car while Montgomery and Dixon walked toward the parking lot where Irizarry had 

driven. The group planned to reconvene at Lane’s backyard, where they would strip 

Irizarry’s vehicle. 

Between 3:00 and 4:00 a.m., Mitchell-Mendez and Beeks arrived at the 

prearranged location and found Irizarry’s car in the backyard, but Montgomery and 

Dixon were not there. Mitchell-Mendez and Beeks drove to a house where Montgomery 

and Dixon had been staying. They found Montgomery and Dixon there. 

Mitchell-Mendez, Dixon, and Montgomery walked back to Lane’s house and 

began stripping Irizarry’s vehicle. It was at this time that Mitchell-Mendez claimed he 

learned someone had been killed. Mitchell-Mendez admitted he had previously claimed 

responsibility for Irizarry’s murder, but denied killing him and denied having any 

knowledge that someone would be killed. 

On November 27th, Montgomery voluntarily came into the police department to 

give a statement. Montgomery admitted that he and Dixon assisted Mitchell-Mendez in 

taking some rims from a vehicle after the vehicle’s owner was killed. In a subsequent 
6.

interview, Montgomery told Detective Wells he had witnessed the murder, and that 

Mitchell-Mendez was responsible for it. 

Montgomery claimed the group had planned to steal some rims, tie up the owner, 

and drop the victim off somewhere in the country to “ ‘let him walk home.’ ” However, 

after the group followed Irizarry’s car to the apartment complex, Beeks gave MitchellMendez a knife. When Montgomery caught up with Mitchell-Mendez, he saw MitchellMendez grab Irizarry from behind and place the knife to Irizarry’s neck. Montgomery 

heard Irizarry say, “ ‘ “Don’t kill me, don’t kill me.” ’ ” Mitchell-Mendez forced Irizarry

to lie face down on the ground. Montgomery thought Mitchell-Mendez was going to tie 

Irizzary up with a rope. 

Mitchell-Mendez grabbed a handful of Irizarry’s hair, pulled his head back, and 

then sliced Irizarry’s throat with his knife. He took a few steps before returning to 

Irizarry and sticking his knife into Irizarry’s back “ ‘really hard.’ ” 

When Detective Wells told Montgomery he did not think Montgomery was being 

truthful, Montgomery claimed his story was true, except that it was Dixon who 

committed the murder, not Mitchell-Melendez. Montgomery claimed that he and Dixon, 

who had also come into the police department that day to give a statement, had arranged 

to tell the same story because Mitchell-Mendez stated he would “ ‘ “take the wrap.” ’ ” 

On December 8th, when Dixon gave a statement to police detectives in which he 

claimed that Mitchell-Mendez had committed the murder. Dixon said that MitchellMendez ordered Irizarry out of the car at gunpoint, and as Irizarry was lying facedown on 

the ground, Mitchell-Mendez lifted Irizarry’s head and used the knife to cut Irizarry’s 

throat. 

As all Mitchell-Mendez, Montgomery, and Dixon were individually interviewed 

by Detective Wells, he noticed that Mitchell-Mendez and Montgomery were right-handed 

and Dixon was left-handed. 
7.

ANALYSIS

Mitchell-Mendez contends the trial court erroneously denied his petition for 

resentencing under former section 1170.95 based upon the fact that the robbery-murder 

special circumstance was found true more than 20 years prior to our Supreme Court’s 

decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. The 

Attorney General agrees, as do we. 

In Strong, our Supreme Court held that where a petitioner’s case “was tried before 

both Banks and Clark, the special circumstance findings do not preclude him from 

making out a prima facie case for resentencing under section 1172.6.” (Strong, supra, 13 

Cal.5th at p. 721.) Our Supreme Court reasoned that section 1172.6 requires the 

petitioner to make a prima facie showing that he could not be convicted of murder under 

the amended versions of sections 188 and 189, and “[a] pre-Banks and Clark special

circumstance finding does not negate that showing because the finding alone does not 

establish that the petitioner is in a class of defendants who would still be viewed as liable 

for murder under the current understanding of the major participant and reckless 

indifference requirements.” (Strong, at pp. 717-718.) “This is true even if the trial 

evidence would have been sufficient to support the findings under Banks and Clark.” 

(Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001, 1008 [trial court 

may not deny § 1172.6 petition at prima facie stage based on its own determination 

defendant was major participant in felony and acted with reckless disregard for human 

life].) Thus, “[n]either the jury’s pre-Banks and Clark findings nor a court’s later 

sufficiency of the evidence review amounts to the determination section 1172.6 requires, 

and neither set of findings supplies a basis to reject an otherwise adequate prima facie 

showing and deny issuance of an order to show cause.” (Strong, at p. 720.)

Here, the jury’s true finding on the robbery-murder special circumstance occurred 

in 1993, more than two decades before our Supreme Court’s decisions in Banks and 

Clark. Strong makes clear that the jury’s finding on the special circumstance does not 
8.

preclude Mitchell-Mendez from stating a prima facie case for relief. (Strong, supra, 13 

Cal.5th at p. 721.) 

Following Strong, we conclude that Mitchell-Mendez’s petition alleged the facts 

necessary for relief under former section 1170.95, and the superior court erred by 

summarily denying his petition based on the jury’s findings on the special circumstance 

allegation. Accordingly, we will reverse the trial court’s order and remand the matter to 

the court with directions to issue an order to show cause and to hold an evidentiary 

hearing. (§ 1172.6, subds. (c), (d); Strong, supra, 13 Cal.5th at pp. 708-709; People v. 

Duchine (2021) 60 Cal.App.5th 798, 816.) 

DISPOSITION

This court’s opinion filed on November 15, 2021 is vacated. The trial court’s 

order denying Mitchell-Mendez’s petition for resentencing under former section 1170.95 

is reversed. The matter is remanded to the superior court with directions to issue an order 

to show cause and to hold an evidentiary hearing. (§ 1172.6, subds. (c)-(d).)