Filed 7/30/24 P. v. Mendoza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSE MENDOZA,

 Defendant and Appellant.

 G063474

 (Super. Ct. No. FVI22000528, 

consol. with FVI22000517)

 O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino

County, Joseph B. Widman, Judge. Affirmed.

Sandra Gillies, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, Collette 
2

C. Cavalier and James H. Flaherty III, Deputy Attorneys General, for 

Plaintiff and Respondent.

* * *

A jury convicted defendant Jose Mendoza of robbery and

possession of a firearm in connection with an armed robbery that took place

in the town of Apple Valley and possession of a firearm and possession of 

ammunition by a felon in connection with an unrelated traffic stop two 

months later in the city of Victorville. The issue at trial with respect to the 

robbery was identity: two of the perpetrators wore ski masks revealing only 

their eyes, dark clothing, and gloves, and the third accomplice stayed inside 

the vehicle and was never seen by the victim. Mendoza was tried jointly with 

Transito Jovani Lovo, also known as Geo Lovo, the suspected driver of the 

vehicle. The third suspect, Rogelio Martinez, testified under a grant of 

immunity. At trial, the People introduced incriminating Facebook messages 

between an account with the username “Mendoza Jose” and codefendant 

Lovo. On appeal, Mendoza contends the trial court should have excluded the 

Facebook messages because they were not properly authenticated as 

originating from him. Mendoza also contends his convictions for possession of 

a gun and possession of ammunition run afoul of his Second Amendment 

right to possess firearms.

We reject both arguments. The Facebook messages were 

sufficiently authenticated. Moreover, any alleged error by the trial court in 

admitting the messages was harmless considering the other independent,

substantial evidence from which a jury could have concluded Mendoza was 

the perpetrator who pointed the gun at the victim during the robbery. We

also reject Mendoza’s constitutional challenge to the firearms convictions. We 

agree with the court’s conclusion in People v. Alexander (2023) 91 Cal.App.5th 
3

469, 478 (Alexander), and the appellate courts that have followed Alexander, 

that convicted felons (such as Mendoza) do not have a constitutional right to 

possess firearms and/or ammunition. We affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the night of December 2, 2021, two men wearing ski masks

and dark clothing exited an older model Jeep Cherokee in an alleyway behind 

the Xhale smoke shop (Xhale) in Apple Valley, where S.D. worked for his 

father. One of the men had a gun in his hand and robbed S.D. at gun point in 

the alleyway. A third individual, the driver, stayed inside the Jeep Cherokee. 

The gun had a silvery shine to it. S.D. was able to see the eyes of 

the man pointing the gun at him; they were distinctive, “like unproportional, 

kind of.” One of the men asked S.D. to open the smoke shop, even though S.D. 

had not mentioned Xhale during the robbery or that he worked there.1 The 

men attempted to disguise their voices during the robbery by speaking in a 

deeper tone. S.D. never saw the driver of the Jeep Cherokee. The man with 

the gun started “touching all around, feeling for if [S.D.] had a wallet or 

something.” The perpetrators took S.D.’s phone, keys, air pods, blanket, and 

backpack. One of the men, but not the person holding the gun, broke the 

passenger window of the car. 

1

S.D. tried to exit his vehicle to open Xhale, but the perpetrators 

would not let him get out of his car. The men eventually left the alleyway.
4

One or more video cameras pointed at the alleyway captured the 

robbery taking place, as well as the license plate of the Jeep Cherokee.

2 The 

Jeep Cherokee used in the robbery was from the 1990s and was distinctive 

because it had multicolored panels, including blue, green, and black. 

Police identified Lovo as the first suspect by tracing the Jeep 

Cherokee to the home of Lovo’s girlfriend, K.B., whose Facebook account was 

used to list the Jeep Cherokee for sale on Facebook Marketplace. Police found 

Lovo at K.B.’s residence along with the Jeep Cherokee, which was hidden in a 

closed garage. Portions of the blue vinyl wrap that was on the front of the 

Jeep Cherokee on the night of the robbery had been removed. From there, 

police investigated publicly available information from Lovo’s and K.B.’s 

Facebook accounts, then issued search warrants to Facebook, and obtained 

(among other things) incriminating Facebook messages between Lovo3and 

another Facebook user under the account name “Mendoza Jose” sent just 

before the robbery and the day after. There also were messages between K.B.

and Lovo, as well as messages between Lovo and Martinez. 

2

The Jeep Cherokee was registered to an individual who the 

police ruled out as a suspect. 

3 Lovo had two public Facebook accounts, one under the name 

Transito Lovo, and one that had posted more recently under the name Geo 

Lovo. The Geo Lovo account included photographs of Lovo and K.B. together. 

The profile picture for one of the Lovo accounts showed a tattoo on his left 

hand that matched a tattoo from a photograph of a hand next to the Jeep 

Cherokee listed for sale on Facebook Marketplace. 
5

Around the time of the robbery, Facebook user Mendoza Jose 

sent a message to Lovo stating “[w]e are ten minutes from Valero.”

4 Lovo 

responded he was on his way. Lovo then asked Mendoza Jose where he was, 

to which Mendoza Jose replied he was “behind,” “[b]y smoke shop.” Mendoza 

Jose later asked, “[w]hich one?” to which Lovo responded, “Xhale.” Mendoza 

Jose then responded, “Oh, I’m behind the Valero smoke shop.” Lovo then says 

he’s “on the other side,” and then, “St. Mary’s.”

5

The day after the robbery, Lovo wrote to Mendoza Jose that Lovo

needed to “disappear the Jeep.” Mendoza Jose told Lovo to “park it in the 

garage.” Lovo also sent Mendoza Jose a screen shot from the sheriff’s 

department public online call log, highlighting the incident pertaining to the 

robbery on December 2. Mendoza Jose responded, “[o]h, shit,” and then asked 

Lovo what he was doing. Lovo responded he was “[expletive] trippin’ out,” to 

which Mendoza Jose responded, “yeah, me too.” Mendoza Jose then wrote

“[b]ut just don’t use it, leave it in the garage.”

Once police identified Mendoza, Lovo, and Martinez as the 

suspects in the robbery, they told S.D. their names. S.D. identified all of them 

as regular customers of Xhale. S.D. had seen Mendoza and Lovo come to 

Xhale together. S.D. also had seen Lovo at Xhale with a girl named “Kelly,” 

which is K.B.’s first name. S.D. recalled Mendoza’s eyes looked like the eyes 

4 The actual Facebook messages were not included as part of the 

record on appeal. The messages, however, were referred to and summarized 

by one or more trial witnesses. Therefore, any reference in this opinion to the 

content of the Facebook messages comes from our review of the trial 

testimony, not the messages themselves.

5 Xhale was near a Valero gas station and St. Mary’s Hospital. 

There was a different smoke shop behind Valero. 
6

of the person who had pointed the gun at him. The perpetrators were on the 

heftier side, and Mendoza fit the size of the individual with the gun. S.D. also 

testified he believed the Jeep Cherokee from the Facebook advertisement was 

the same one from the night of the robbery. 

Two months after the robbery, police found a semiautomatic 

handgun and ammunition in Mendoza’s possession during a traffic stop. 

Mendoza was trying to conceal the gun. Mendoza admitted to police the gun 

was his, it was “handed down to him or given to him,” and “he’s had the 

handgun for about two years.” S.D. identified the gun as the one used against 

him in the robbery.6

The People charged Mendoza with one count of second degree 

robbery (Pen. Code, § 211 [count 1]),7 with a firearm enhancement 

(§ 12022.53, subd. (b)), possession of a firearm by a felon on two separate 

occasions, two months apart (§ 29800, subd. (a)(1) [counts 2 and 4]), one count 

of assault with a semiautomatic firearm (§ 245, subd. (b) [count 3]), and one 

count of possession of ammunition by a felon (§ 30305, subd. (a)(1) [count 5]). 

Mendoza and Lovo were tried together before the same jury for the robbery. 

The third suspect in the robbery, Martinez, was granted immunity under 

section 1324 and testified at the trial.

The jury found Mendoza guilty on counts 1, 2, 4, and 5, and not 

guilty on count 3. The jury convicted Lovo of second degree robbery. The trial 

court sentenced Mendoza to five years in prison for count 1, two years for 

6

S.D. testified he was “8.5” out of 10 certain the gun found in 

Mendoza’s possession two months later was the same one used in the 

robbery. 

7 All further statutory references are to the Penal Code. 
7

count 2, eight months for count 4, and 16 months for count 5. The terms for 

counts 2 and 5 were to run concurrent with the term for count 1, while count 

4 was to run consecutive. Mendoza timely appealed.

DISCUSSION

I.

AUTHENTICITY OF FACEBOOK MESSAGES

Prior to the commencement of trial, the People moved in limine to 

admit the records they obtained from Facebook in response to one or more

search warrants, which included the incriminating Facebook messages the 

People contended linked Lovo, Mendoza, and Martinez to the robbery. As to 

authenticity, the trial court ruled the People would need to establish 

foundation during the trial that the accounts were tied to the actual 

defendants in order to publish them to the jury.8 Mendoza’s attorney objected 

to the admission of the messages based on lack of foundation that the 

Mendoza Jose account was owned or maintained by Mendoza and that the 

messages were actually sent by him. Mendoza’s attorney pointed out that his 

name is a common one. The court ultimately overruled the objection and 

determined there was sufficient foundation to show Mendoza controlled the 

“Mendoza Jose” account and sent the messages. Mendoza contends this was 

error. We disagree. 

The standard of review on appeal is abuse of discretion. (People v. 

Dawkins (2014) 230 Cal.App.4th 991, 1001.) A court’s ruling as to the

8 The trial court ruled the records fell within the business records 

exception to the hearsay rule and were statements made in furtherance of an 

alleged conspiracy; it ruled they were not testimonial. Mendoza only 

challenges the court’s ruling as to the authenticity of the Facebook messages 

purportedly sent to and from Mendoza, not these rulings regarding the 

hearsay rule.
8

authenticity of a writing is “made as a ‘preliminary fact [citation] and is 

statutorily defined as the “introduction of evidence sufficient to sustain a 

finding that it is the writing that the proponent of the evidence claims it is”

or “the establishment of such facts by any other means provided by law”

[citation].’ [Citation.] The statutory definition ties authentication to 

relevance: ‘“[b]efore any tangible object may be admitted into evidence, the 

party seeking to introduce the object must make a preliminary showing that 

the object is in some way relevant to the issues to be decided in the action. 

When the object sought to be introduced is a writing, this preliminary 

showing of relevancy usually entails some proof that the writing is 

authentic—i.e., that the writing was made or signed by its purported 

maker.”’” (Id. at p. 1002.) “‘The foundation requires that there be sufficient 

evidence for a trier of fact to find that the writing is what it purports to be, 

i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is 

necessary is a prima facie case. “As long as the evidence would support a 

finding of authenticity, the writing is admissible. The fact conflicting 

inferences can be drawn regarding authenticity goes to the document’s 

weight as evidence, not its admissibility.”’” (People v. Flinner (2020) 10 

Cal.5th 686, 727.)

We conclude the trial court did not abuse its discretion in 

determining there was sufficient foundational evidence linking the account 

and messages to Mendoza. The police issued a search warrant to Facebook for 

records pertaining to the account under the name Mendoza Jose. Facebook 

produced information that pointed to Mendoza as the account holder, 

including information that had been input by the user upon creation of the 

account, such as the user’s name, date of birth, email addresses, phone 

number, photographs, and credit card information. A phone number given to 
9

Facebook in connection with this account matched a phone number used by 

Mendoza in prior calls for service to the sheriff’s department. Although

Mendoza’s name may be common, the evidence showed both the user of the 

Facebook account “Mendoza Jose” and defendant Mendoza were directly 

linked to Lovo, and Martinez had stated in Facebook messages on the day of 

the robbery to Lovo that “Jose”—Mendoza’s first name—was picking him up 

and they would meet at Valero on Highway 18. There was evidence Mendoza

and Lovo knew each other, were both customers of Xhale, and had been to 

Xhale together. This evidence provides further foundation to demonstrate the 

account belonged to Mendoza, and not to some random individual who 

happened to have the same name. 

Even assuming for the sake of argument the Facebook messages 

should have been excluded from the trial, the error was harmless beyond a 

reasonable doubt. (People v. Flinner, supra, 10 Cal.5th at p. 747.) There was 

ample evidence linking Mendoza to the robbery independent of the Facebook 

messages. The victim, S.D., knew Mendoza before the robbery and was able 

to identify Mendoza as the perpetrator who held the gun. Although Mendoza 

argues the identification was weak because S.D. only identified Mendoza 

after the police told S.D. Mendoza was a suspect, that argument goes to the 

weight of the identification, not its admissibility; the jury could reasonably 

have found S.D.’s identification credible. S.D. knew Mendoza before the 

robbery and had described to the police something distinctive about the 

gunman’s eyes before the police ever told him Mendoza was a suspect. S.D. 

also identified the gun found in Mendoza’s possession as the gun used in the 

robbery. Mendoza was a customer of Xhale and an acquaintance of both Lovo 

and Martinez. Martinez (who described Mendoza as “family”) denied knowing 

anything about the robbery, but admitted to police he, Lovo, and Mendoza 
10

had formulated a plan to rob somebody, met up at an alley behind a 

restaurant and talked about it, but then claimed that they had “canceled” 

and “dropped” the plan. Martinez also told police “I think Jose, somebody said 

about us meeting up at Valero.” In a Facebook message to Lovo on the day of 

the robbery, Martinez said, “Jose is picking me up” and “we’ll meet you at 

Valero on Highway 18.” The perpetrators seemed to know S.D. could open the 

door to Xhale, even though S.D. never mentioned he worked there during the 

robbery. Mendoza matched S.D.’s physical description of the perpetrator who 

pointed the gun at him.

Mendoza argues the jury’s acquittal of him on count 3 (assault 

with a firearm) shows how important the Facebook messages were to the jury 

and that the error was not harmless. According to Mendoza, the Facebook 

messages did not mention Mendoza as the gunman, but only discussed his 

involvement in the robbery, so that must be why the jury acquitted him on 

count 3. We disagree that the jury’s acquittal of Mendoza on count 3 

establishes the jury put great emphasis on the Facebook messages. There are 

other reasonable explanations for the jury’s not guilty verdict on the assault 

charge against Mendoza. First, the jury may reasonably have concluded 

Mendoza did not assault S.D. during the robbery. The jury was instructed 

that to find Mendoza guilty of the crime of assault, the People must prove 

Mendoza “did an act with a semiautomatic pistol that by its nature would 

directly and probably result in the application of force to [the victim].”

(CALCRIM No. 875.) “[A]pplication of force” is defined as touching in a 

“harmful or offensive manner.” (CALCRIM No. 875.) At trial, S.D. testified

the man with the gun ran towards him, then pointed the gun at him while 

S.D. remained in the driver’s seat of his vehicle. S.D. said the man with the 

gun started “touching all around, feeling for if I had a wallet or something,” 
11

but that it was someone else who broke the passenger window of the car. The 

entire encounter lasted about two minutes. This evidence could reasonably 

have led the jury to conclude that, although Mendoza was the individual with 

the gun, he did not assault S.D. during the robbery. The other alternative is 

the jury concluded the People did not prove beyond a reasonable doubt the 

gun used by Mendoza during the robbery was a “semiautomatic” pistol, an 

element of count 3. S.D. did not testify to the type of gun used against him.

II.

CONSTITUTIONAL CHALLENGES TO FIREARMS CONVICTIONS

Mendoza asserts that, following New York State Rifle & Pistol 

Association, Inc. v. Bruen (2022) 597 U.S. 1, California’s law barring felons 

from possessing firearms and ammunition—i.e., section 29800, subdivision 

(a)(1) and section 30305, respectively—is facially unconstitutional under the 

Second Amendment. Other California appellate courts have recently 

addressed, and rejected, this very argument, concluding the Second 

Amendment only protects the right of law-abiding citizens to possess firearms 

and ammunition for the purpose of self-defense, not convicted felons like 

Mendoza. (See Alexander, supra, 91 Cal.App.5th at p. 479 [“[c]onvicted felons, 

by definition, are not law abiding” and “thus are not among ‘the people’ who 

have an individual right to possess firearms under the Second Amendment”];

see also People v. Ceja (2023) 94 Cal.App.5th 1296, 1301 [“We agree with the 

cogent reasoning and analysis in Alexander [and] hold that the felon in 

possession of ammunition prohibition [citation] does not facially violate the 

Second Amendment”]; In re D.L. (2023) 93 Cal.App.5th 144, 166 [“We agree 

with Alexander . . . that Bruen did not expand ‘the categories of people who 

may lawfully possess a gun,’ and that those convicted of a felony are squarely 

in a category where gun possession is off-limits due to their prior criminal 
12

conduct”]; People v. Odell (2023) 92 Cal.App.5th 307, 317 [agreeing with 

Alexander that § 29800, subd. (a)(1) is constitutional].)

DISPOSITION

The judgment is affirmed.

GOODING, J.

WE CONCUR:

O’LEARY, P. J.

DELANEY, J.