People v. Mendiola CA6

Filed 1/4/22 P. v. Mendiola CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047240, H047983
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC933529)
v.
LEONCIO RAMON MENDIOLA,
Defendant and Appellant.
Defendant Leoncio Ramon Mendiola pleaded no contest in 2014 to attempted
murder and admitted that he personally used a firearm in return for a 19-year prison
sentence. Defendant petitioned the trial court for resentencing in 2019 after the
Legislature vested trial courts with discretion to strike formerly mandatory firearm
enhancements. The trial court denied the request because defendant’s judgment had
become final after there was no timely appeal. Defendant obtained relief from default for
his failure to timely appeal, and appealed both the original judgment and the post-
judgment order denying his petition for resentencing. He argues that because his
judgment is not final, he is entitled to a remand to allow a renewed opportunity to petition
for resentencing. For the reasons stated here, we will remand the matter for that purpose.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by information with attempted murder (Pen. Code, §§ 187,
664) and shooting at an occupied vehicle (Pen. Code, § 246). (Unspecified statutory
references are to the Penal Code.) As to both felonies, the information alleged defendant
personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and
personally inflicted great bodily injury (§ 12022.7, subd. (b)). He was also charged with
one misdemeanor count of exhibiting a firearm (§ 417, subd. (a)(2)). According to the
probation report, the charges stemmed from defendant shooting the driver of a vehicle in
the head, which caused partial paralysis.
As part of a negotiated disposition, the prosecution amended the information to
remove the firearm discharge allegation and its 25-years-to-life penalty and instead
alleged that defendant personally used a firearm (§ 12022.53, subd. (b)), which carries a
10-year determinate punishment. Defendant pleaded no contest to attempted murder and
admitted using a firearm during that offense. He agreed to serve 19 years in prison,
consisting of nine years for attempted murder plus 10 years consecutive for the firearm
use enhancement. He also agreed to waive 365 days of presentence custody credit.
Consistent with the parties’ agreement, the trial court dismissed the remaining charges
and special allegations at sentencing.
Representing himself, defendant petitioned for resentencing in 2019, contending
that he was entitled to the ameliorative sentencing change in Senate Bill No. 620. The
trial court denied the petition because defendant’s judgment became final in 2014 without
a timely notice of appeal.
Defendant initially appealed from the order denying his resentencing petition (case
No. H047420). Appointed appellate counsel requested relief from default in this court
based on ineffective assistance of trial counsel for not having timely appealed the
judgment. We granted the unopposed request, and defendant appealed the judgment
(case No. H047983) on the identical ground. We ordered the appeals considered
together.
II. DISCUSSION
Defendant’s sole contention in both appeals is that he is entitled to resentencing
because of a change in the law that vests trial courts with discretion to strike formerly
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mandatory firearm use enhancements. When defendant was sentenced in 2014, the
penalty for any section 12022.53 firearm enhancement was mandatory. (See § 12022.53,
former subd. (h) [“Notwithstanding Section 1385 or any other provision of law, the court
shall not strike an allegation under this section or a finding bringing a person within the
provisions of this section.”]; Stats. 2010, ch. 711, § 5.) Senate Bill No. 620 (2017–2018
Reg. Sess.) amended sections 12022.5 and 12022.53 to give trial courts discretion to
strike firearm enhancements. (§ 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1–2.) That
amendment potentially applies to defendants sentenced under the prior version of the law
whose judgments are not yet final, unless it is clear from the record that the trial court
would not have struck the enhancement even if it could have. (In re Estrada (1965)
63 Cal.2d 740; People v. McDaniels (2018) 22 Cal.App.5th 420, 424–425.) Given that
defendant’s sentence was stipulated, the record here does not reflect how the trial court
might exercise its discretion as to the firearm enhancement. A limited remand is
therefore appropriate to allow defendant to renew his request for resentencing.
The Supreme Court recently explained the effect of such a remand when, as here,
a defendant seeks resentencing after a sentence is imposed as part of a negotiated
disposition. (People v. Stamps (2020) 9 Cal.5th 685, 705 (Stamps) [applying new
discretion over prior serious felony enhancements].) The Stamps court rejected the
notion that a defendant could use an ameliorative change in the law to “ ‘ “whittle down
the sentence” ’ ” while leaving the rest of the plea bargain intact. (Id. at p. 706.) But the
court determined that defendants are nonetheless entitled to seek the benefit of the change
in the law. A trial court faced with such a request has two options. First, the trial court
can decline to exercise its discretion, in which case the sentence remains unchanged.
Second, the trial court can indicate its willingness to strike the enhancement, effectively
withdrawing approval of the plea agreement and returning the case to its pre-plea status.
(Id. at pp. 706–707.) The Supreme Court described the potential risk to a defendant who
elects to withdraw his or her plea to attempt to obtain the benefit of a change in the law,
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noting the defendant “ ‘presumably obtained some benefit from the plea agreement’ ”
such that his or her interests might be better served by retaining the original sentence.
But the court concluded “it is ultimately defendant’s choice whether he wishes to seek
relief.” (Id. at p. 708.)
Applying those concepts to defendant’s case, we note that the trial court’s decision
was correct based on the record before it, because before obtaining relief from default in
this court defendant’s judgment was functionally final. But now that defendant has
obtained relief from default, his judgment is not final and he is entitled to seek the benefit
of the change in section 12022.53. The Attorney General emphasizes that defendant’s
choice to withdraw his plea risks the possibility of a higher sentence, but as the Stamps
court made clear “it is ultimately defendant’s choice whether he wishes to seek relief.”
(Stamps, supra, 9 Cal.5th at p. 708.)
III. DISPOSITION
The order filed April 3, 2019 in superior court case No. CC933529 is reversed.
The matter is remanded to the superior court to allow defendant to renew his petition for
resentencing under Senate Bill No. 620.
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____________________________________
Grover, Acting P.J.
WE CONCUR:
____________________________
Lie, J.
____________________________
Wilson, J.
H047240, H047983 - The People v. Mendiola