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State v. Mendoza5/13/1999
Jose J. Mendoza was convicted of five counts of attempted first degree murder and sentenced to 100 years in prison. In this appeal, Mr. Mendoza raises several issues, including (1) whether the court erred when it admitted evidence that he believes suggested he was a gang member; and (2) whether the trial court's instructions misled the jury that self-defense requires the existence of actual imminent danger. We affirm.
On the night of August 20, 1995, Jose Mendoza fired his pistol repeatedly at an automobile occupied by three young men and two young women. The driver of the vehicle, Torrey Lowery, and the two women were wounded seriously. Mr. Mendoza and the State's witnesses gave different versions of the incident. They agreed about little other than the fact Mr. Lowery and Jeremy Johnson, the driver of the vehicle Mr. Mendoza was riding in, had had a verbal confrontation 15 to 20 minutes before the shootings. Mr. Mendoza contended he acted in self-defense. Mr. Lowery described an unprovoked attack.
The Johnson-Mendoza vehicle left the scene immediately. Sheriff deputies arrested the two men a few days later. The State charged both with multiple counts of first degree assault and attempted first degree murder. Mr. Johnson pleaded guilty to one count each of the assault and murder charges. He agreed to testify for the State at Mr. Mendoza's trial.
At trial, Mr. Lowery testified he was driving down Trent toward Argonne that night when he noticed Mr. Johnson driving in his vehicle. A friend of Mr. Lowery's, Tony Beckstead, was driving another vehicle in the lane next to him. Mr. Lowery stated Mr. Johnson had his window down and had "displayed" a gun to them. When they reached Argonne, all three vehicles stopped at a red light. Mr. Lowery got out of his car and went to the driver's door of Mr. Johnson's vehicle.
According to Mr. Lowery, at that point, Mr. Johnson ran the red light and left him standing in the street. Mr. Lowery returned to his car with the intent of following Mr. Johnson, but his friends talked him out of it. They were still in the area 15 to 20 minutes later when they noticed Mr. Johnson's vehicle again approaching. Mr. Lowery said he turned to look over his left shoulder as Mr. Johnson pulled up alongside them. Then, the man in Mr. Johnson's passenger seat started firing at them. Mr. Lowery said he had made no threatening gestures nor done anything else to provoke the attack.
Mr. Johnson testified he had attended West Valley High School with Mr. Lowery, and for reasons unclear to him, Mr. Lowery did not like him. Prior to the shootings, Mr. Lowery had taunted and threatened Mr. Johnson on two occasions one time at a restaurant and a second time at a convenience store. Mr. Johnson admitted he displayed a gun when Mr. Beckstead and Mr. Lowery drove past him on Trent that evening. According to Mr. Johnson, when Mr. Lowery got out of his vehicle at the red light at Argonne, he was shouting, "Come on . . . shoot me." Mr. Johnson left the scene and drove directly to a friend's house, where he found two of his acquaintances, Robert Delao and Jose Mendoza. They agreed to go with him to confront Mr. Lowery. Mr. Johnson denied telling Mr. Mendoza that Mr. Lowery had pointed a gun at him, only that "he's been known to {have a gun}."
Soon after Mr. Johnson drove back to the Argonne/Trent area, he spotted the Lowery vehicle. He rolled down his windows and pulled up behind it. He testified it looked like Mr. Lowery was "going down," then Mr. Mendoza started firing. He did not know whether Mr. Mendoza's gun was already out when Mr. Lowery ducked. Mr. Johnson said he fired off one shot from his own gun before it jammed. He admitted
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