Filed 6/9/22 P. v. Mendoza CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ELMER MORENO MENDOZA,

Defendant and Appellant.

 B315038

 (Los Angeles County

 Super. Ct. No. LA023805)

APPEAL from an order of the Superior Court of Los 

Angeles County, Gregory A. Dohi, Judge. Affirmed.

Julie Caleca, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

——————————
2

Elmer Moreno Mendoza appeals from an order denying his 

petition for resentencing pursuant to Penal Code section

1170.95.

1 His appellate counsel filed a brief asking this court to 

proceed under People v. Wende (1979) 25 Cal.3d 436. We affirm.

On December 9, 1996, following a jury trial, Mendoza was 

convicted of one count of first degree murder (§ 187, subd. (a)) 

with a true finding on the allegation that he personally used a 

firearm in the commission of the offense (§ 12022.5, subd. (a)).

He was sentenced to a term of 25 years to life, plus 10 years. A 

different panel of this division affirmed the judgment of 

conviction in People v. Mendoza (June 24, 1998, B108845) 

[nonpub. opn.].

On February 22, 2021, acting in propria persona, Mendoza 

filed a petition for resentencing pursuant to section 1170.95. In 

his handwritten petition, Mendoza alleged that he was charged 

with, and convicted of, first degree murder under the natural and 

probable consequences doctrine. He also alleged, however, that 

he “shot and killed the victim” in an act of self-defense because

the victim had attempted to sexually assault him. As described 

by Mendoza in his petition, “[w]hile Petitioner in fact did kill the 

victim, it was the victim who was committing a felony, namely, 

he wanted to rape Petitioner, while Petitioner slept.”

On July 16, 2021, the People filed a response to Mendoza’s

petition. The People argued that Mendoza was not eligible for 

relief under section 1170.95 because he was convicted of first 

degree murder as the actual killer, and the jury was not 

instructed on either a felony murder or natural and probable 

consequences theory of liability. In support of their response, the 

1 All statutory references are to the Penal Code.
3

People attached this court’s prior opinion affirming Mendoza’s 

judgment of conviction and the jury instructions from Mendoza’s

trial. The jury instructions did not include any instructions on 

the felony-murder rule or the natural and probable consequences 

doctrine.

On August 23, 2021, following the appointment of counsel, 

Mendoza filed a reply in support of his petition. Mendoza 

asserted that he had made a prima facie showing that he was 

entitled to relief under section 1170.95, and asked that the 

superior court conduct an evidentiary hearing.

On August 24, 2021, the superior court held a prima facie 

hearing on Mendoza’s petition. Mendoza was represented by 

counsel at the hearing. Following the argument of counsel, the 

superior court denied Mendoza’s petition on two grounds. The 

court found that the “petition itself contains a recitation of facts 

that, if assumed to be true, disqualifies [Mendoza] from relief.”

The court further found that the record of conviction, including 

the jury instructions, “show [Mendoza] is ineligible because [the] 

jury was never instructed as to felony murder or natural and 

probable consequences.”

On September 9, 2021, Mendoza filed an appeal from the 

order denying his section 1170.95 petition. We appointed counsel 

to represent Mendoza on appeal. After an examination of the 

record, counsel filed an opening brief which raised no issues and 

requested this court conduct an independent review of the record 

pursuant to People v. Wende, supra, 25 Cal.3d 436. On 

February 24, 2022, we advised Mendoza that he had 30 days to 

submit by supplemental brief or letter any contentions or 

arguments he wished this court to consider. Mendoza did not 

submit a supplemental brief.
4

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Senate Bill 1437) amended murder liability under 

the felony-murder rule and natural and probable consequences 

doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v. 

Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill 1437 also 

added section 1170.95, which created a procedure whereby 

persons convicted of murder under a now-invalid felony murder 

or natural and probable consequences theory may petition the 

sentencing court to vacate the murder conviction and resentence 

the petitioner on any remaining counts. Senate Bill No. 775, 

which took effect on January 1, 2022, amended section 1170.95 to 

allow persons convicted of attempted murder or manslaughter 

under a felony murder or natural and probable consequences 

theory to seek the same relief under the statute. (Stats. 2021, 

ch. 551, § 1.)

A petitioner is eligible for relief under section 1170.95, 

subdivision (a) if he or she: (1) was charged with murder or 

attempted murder by means of a charging document that allowed 

the prosecution to proceed under the felony-murder rule, natural 

and probable consequences doctrine, or other theory under which 

malice is imputed to a person based solely on his or her 

participation in a crime; (2) was convicted of murder, attempted 

murder, or manslaughter; and (3) could no longer be convicted of 

murder or attempted murder due to the changes to sections 188 

and 189 effectuated by Senate Bill 1437.

If a petitioner makes a prima facie showing that he or she 

is entitled to relief, the superior court must issue an order to 

show cause (§ 1170.95, subd. (c)), and hold an evidentiary hearing 

to determine whether to vacate the murder, attempted murder, 

or manslaughter conviction and to resentence the petitioner 
5

(§ 1170.95, subd. (d)(1)). In determining whether a petitioner 

has established a prima facie case, it is appropriate to examine 

the record of conviction, “allowing the court to distinguish 

petitions with potential merit from those that are clearly 

meritless.” (People v. Lewis, supra, 11 Cal.5th at p. 971.)

In this case, the superior court properly denied Mendoza’s 

section 1170.95 petition because he failed to make a prima facie 

showing of entitlement to relief. Based on the factual allegations 

in his petition and the jury instructions from his trial, Mendoza 

was not convicted of murder under the felony-murder rule, the 

natural and probable consequences doctrine, or other theory of 

imputed malice. Rather, Mendoza was convicted of murder as 

the actual killer, and is therefore ineligible for relief under 

section 1170.95. (See § 1170.95, subd. (a)(3) [petitioner is eligible 

for relief only if he or she “could not presently be convicted of 

murder or attempted murder because of changes to Section 188 

or 189 made effective [by Senate Bill 1437]”]; People v. Lewis, 

supra, 11 Cal.5th at p. 959 [“Legislature passed Senate Bill 1437 

‘to amend the felony murder rule and the natural and probable 

consequences doctrine . . . to ensure that murder liability is not 

imposed on a person who is not the actual killer’ ”].)

We have examined the entire record, and are satisfied 

Mendoza’s attorney has fully complied with the responsibilities of 

counsel and no arguable issues exist. (People v. Kelly (2006) 

40 Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)
6

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED. 

KALRA, J.*

We concur:

EDMON, P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.