Filed 6/6/23 P. v. Mendez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO MENDEZ,

Defendant and Appellant.

 B322637

 (Los Angeles County

 Super. Ct. No. TA063097)

APPEAL from an order of the Superior Court of Los 

Angeles County, Sean D. Coen, Judge. Affirmed in part, 

dismissed in part.

Michael C. Sampson, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Noah P. Hill and Stephanie A. 

Miyoshi, Deputy AttorneysGeneral, for Plaintiff and 

Respondent.

_____________________________________________

Defendant Francisco Mendez appeals from a 

postjudgment order denying his petition to vacate his 

murder conviction under Penal Code section 1172.6.1 

Defendant does not challenge the merits of the postjudgment

order. Instead, he contends for the first time in this appeal 

that a portion of his sentence is unauthorized. The Attorney 

General contends, and we agree, that we have no jurisdiction 

to entertain defendant’s contention. We dismiss this portion 

of defendant’s appeal and affirm the order denying his

petition. 

BACKGROUND

In 2002, a jury convicted defendant of first degree 

murder (§ 187, subd. (a)) and found true the allegation that 

defendant committed the murder for the benefit of, at the 

direction of, or in association with a criminal street gang

(§ 186.22, subd. (b)(1)). The trial court sentenced defendant 

to 25 years to life for murder (§ 190, subd. (a)), and a 

consecutive 10 years for the true finding under the gang 

enhancement statute (§ 186.22, subd. (b)(1)(C)). 

1 Subsequent references to statutes are to the Penal Code. 
3

In his direct appeal in 2003, defendant challenged 

(1) the sufficiency of evidence supporting his conviction for 

murder; (2) the legality of the jury instruction on the gang 

enhancement; and (3) the sufficiency of the evidence 

supporting the jury’s true finding on the gang enhancement. 

We rejected these arguments and affirmed the judgment. 

(People v. Francisco Mendez (Apr. 25, 2003, B161165) 

[nonpub. opn.].) 

On November 1, 2021, defendant filed a postjudgment 

petition to have his murder conviction vacated and to be 

resentenced on any remaining counts. (§ 1172.6, subd. (a).) 

In his petition, defendant alleged that he was convicted of 

first degree murder based on the felony-murder rule or the 

natural and probable consequences doctrine and could not 

now be convicted of murder based on changes to sections 188 

and 189. The court appointed defendant counsel and 

received briefing by the parties. Following a hearing, the 

court found defendant had failed to make a prima facie case 

for relief because he was neither tried nor convicted of 

murder under the felony-murder rule or the natural and 

probable consequences doctrine. The court denied the 

petition. 

Defendant filed a timely appeal. 

DISCUSSION

Defendant does not contest the merits of the trial 

court’s order denying his section 1172.6 petition. Instead, he 

argues for the first time in this appeal that we must correct 
4

an unauthorized portion of his sentence. He asserts that 

under the gang enhancement statute, the court should not 

have added a consecutive 10-year term to what was already 

a life sentence but instead should have imposed a minimum 

term of 15 years of parole eligibility. (§ 186.22, subds. 

(b)(1)(C), (b)(5).)2 The Attorney General acknowledges the 

sentencing error, but contends that this court lacks 

jurisdiction to entertain defendant’s contention. We agree 

with the Attorney General.

A. The Order Denying Defendant’s Section 1172.6 

Petition

Defendantfiled a postjudgment petition to vacate his

murder conviction under section 1172.6. This section

provides jurisdiction for a trial court to conduct a

resentencing proceedingto vacate convictions based on

“felony murder or murder under the natural and probable

consequences doctrine or other theory under which malice is

2 Under the gang enhancement statute, the court must impose an 

additional and consecutive term of 10 years for the commission of a 

violent felony. (§ 186.22, subd. (b)(1)(C).) The court may not impose 

an additional 10-year term under the statute for felonies “punishable 

by imprisonment in the state prison for life.” (§ 186.22, subd. (b)(5).) 

For these offenses, the court must impose a minimum term of 15 

calendar years of parole eligibility. (Ibid.) First degree murder is one 

offense not subject to the 10-year enhancement. (People v. Lopez

(2005) 34 Cal.4th 1002, 1004, 1008.) 
5

imputed.” The procedures the trial court must follow in

conducting the proceeding are outlined in Section 1172.6. 

Upon the filing of a facially sufficientpetition,the trial

court must engage in a “limited” prima facie review. (People

v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) During this

stage of the proceeding,the court“appoints counsel, if

requested;the issue is briefed; and then the court makes one

. . . prima facie determination.” (Id. at p. 966; § 1172.6,

subds. (b)-(c).) If the petitioner does not establish a prima

facie case for relief under the statutory criteria,the court

must deny the petition. (§ 1172.6, subd. (b); Lewis, supra, at

p. 971.) If the court makes a prima facie finding, it must

issue an order to show cause. (§ 1172.6, subd. (c).) 

It is only after the court issues an order to show cause

that it holds another hearing “to determine whether to

vacate the murder, . . . conviction and to recall the sentence

and resentence the petitioner on any remaining counts in the

same manner as if the petitioner had not previously been

sentenced, . . .” (§ 1172.6, subd. (d)(1), italics added; see

People v. Howard (2020) 50 Cal.App.5th 727, 741 [in 

granting relief under section 1172.6, the court must “‘vacate 

the underlying conviction and “any allegations and 

enhancements attached to the conviction”’”].)

Here, defendantfiled a section 1172.6 petition to

vacate his murder convictionand any allegations and

enhancements attached to the conviction. The courtissued

an order denying his section 1172.6 petition at the prima

facie stage of review. Despite filing a notice of appeal from
6

this order, defendant does not purportto challenge the

court’s prima facie inquiry or findings. We affirm the court’s

order. 

B. We Lack Jurisdictionto Consider Defendant’s

Claim

Defendant’s sole contention, raised for the first time in

this appeal, is that the consecutive 10-year term of

imprisonmentimposedunder the gang enhancement statute

constitutes an unauthorized sentence. Defendant argues

that an unauthorized sentence may be challenged at any

time, even on appeal from the trial court’s denial of his

section 1172.6 petition. The Attorney General asserts that

we lack jurisdiction to consider defendant’s contention. We

agree.

“‘As a general rule, a criminal defendant who fails to

object at trialto a purportedly erroneous ruling forfeits the

rightto challenge that ruling on appeal.’ (People v. Anderson

(2020) 9 Cal.5th 946, 961.) Butthere is an exception to this

rule for an unauthorized sentence, . . . (In re G.C. (2020) 8 

Cal.5th 1119, 1130 (G.C.).) ‘The unauthorized sentence

doctrine is designed to provide relief from forfeiture for

“obvious legal errors at sentencing that are correctable

without referring to factual findings in the record or

remanding for further findings.” [Citation.] It applies when

the trial court has imposed a sentence that “couldnot

lawfully be imposed under any circumstance in the
7

particular case.”’ (Anderson, [supra,] at p. 962.)” (People v.

Moore (2021) 68 Cal.App.5th 856, 865 (Moore).)

“By permitting a defendant to challenge an 

unauthorized sentence on appeal even in the absence of an 

objection below, the unauthorized sentence rule constitutes a 

narrow exception to the forfeiture doctrine (In re Sheena K. 

(2007) 40 Cal.4th 875, 886–887), ‘“notto the jurisdictional

requirement of a timely notice of appeal”’ or other means of

properly challenging the judgment of conviction. (G.C., 

supra, 8 Cal.5th at p. 1129.) In order to invoke the

unauthorized sentence rule in the first instance, our

Supreme Court has held the reviewing court‘must have

jurisdiction over the judgment.’ (G.C., [supra,] at p. 1130.)” 

(Moore, supra, 68 Cal.App.5th at p. 865; accord, People v. 

King (2022) 77 Cal.App.5th 629, 637 (King).) The

unauthorized sentence doctrine does not itself create

jurisdiction for an appellate courtto rule on the legality of a

sentence. (Id. at pp. 636-637; Moore, supra, at p. 866.) 

Where, as here, execution of sentence has commenced 

and the judgment is final, the trial court is generally 

“deprived of jurisdiction to resentence” a criminal defendant. 

(People v. Karaman (1992) 4 Cal.4th 335, 344, citing Dix v.

Superior Court (1991) 53 Cal.3d 442, 455; People v.

Hernandez (2019) 34 Cal.App.5th 323, 326.) To obtain

resentencing on a final judgment, a defendant must file a

petition for writ of habeas corpus (G.C., supra, 8 Cal.5th at

p. 1130), or proceed by way of a special statutory procedure
8

(e.g., §§ 1170, subd. (d)(2), 1170.18, 1170.91, 1170.12, 1172.1,

1172.2, 1172.6, 1172.7).

As discussed, section 1172.6 confers limited, specified

jurisdiction on a trial court. (Accord, People v. Howard

(1997) 16 Cal.4th 1081, 1089 [§ 1170, subd. (d)]; People v.

Dynes (2018) 20 Cal.App.5th 523, 528 [Proposition 57]; 

People v. Clark (2017) 8 Cal.App.5th 863, 873 [§ 1170.126]; 

see Abelleira v. District Court of Appeal, Third Dist. (1941)

17 Cal.2d 280, 288 [“[T]hough the court has jurisdiction over 

the subject matter and the parties in the fundamental sense, 

it [may not have] ‘jurisdiction’(or power) to act except in a 

particular manner, or to give certain kinds of relief, or to act 

without the occurrence of certain procedural prerequisites”].) 

Pursuantto that statute, the court could only determine

whether defendant made a prima facie showing that he was

convicted of first degree murder under a now invalid theory

of liability, such as the felony-murder rule or natural and

probable consequences doctrine. Because defendant’s record 

of conviction refuted the allegations in his petition as a 

matter of law, the court could do nothing but deny his 

petition. (Lewis, supra, 11 Cal.5th at p. 971; see People v. 

Harden (2022) 81 Cal.App.5th 45, 52 [“if the record shows 

that the jury was not instructed on either the natural and 

probable consequences or felony-murder doctrines, then the 

petitioner is ineligible for relief as a matter of law”].) 

In other words, to the extent that section 1172.6 

provides for resentencing, it is resentencing only for 

petitioners who meet the statutory criteria for relief
9

pursuant to section 1172.6. But where no prima facie 

showing has been made that the petitioner was tried or 

convicted under a now invalid theory of homicide liability, 

section 1172.6 grants the trial court no power to do anything 

but deny the petition. (Accord, People v. Brown (2014) 230 

Cal.App.4th 1502, 1511-1512 [reaching same result under 

§ 1170.126].) We therefore agree with the Attorney General 

that the trial court lacked jurisdiction to consider

defendant’s claim of sentencing error at this stage of the 

underlying proceeding. (See Moore, supra, 68 Cal.App.5th at 

p. 866.)3

In sum, we conclude that the trial court lacked 

jurisdiction to consider defendant’s claim of sentencing error, 

and as a result, we also lack jurisdiction to entertain 

defendant’s claim in this appeal. (King, supra, 77

Cal.App.5th at p. 633; accord, Moore, supra, 68 Cal.App.5th

at p. 866.) We therefore dismiss the portion of defendant’s

appeal purporting to challenge an unauthorized sentence.

(People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; People

v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) Defendantis

not without recourse, as he remains free to challenge his

3 We express no opinion on a trial court’s authority to correct an 

unauthorized sentence after issuing an order to show cause and 

vacating a conviction under section 1172.6, subdivision (d). (See People

v. Padilla (2022) 13 Cal.5th 152, 161-163 [upon proof that a defendant 

is entitled to resentencing on collateral review, “the result is vacatur of 

the original sentence, whereupon the trial court may impose any 

appropriate sentence”].)
10

sentence in a petition for a writ of habeas corpus. (See King, 

supra, at p. 640.)

DISPOSITION

The order denying defendant’s petition for resentencing 

under section 1172.6 is affirmed. The portion of defendant’s 

appeal purporting to challenge as unauthorized the 10-year 

term of imprisonmentimposed under section 186.22, 

subdivision (b)(1)(C) is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI, J.

We concur:

CURREY, Acting P. J.

COLLINS, J.