P. v. Mendez

Filed 4/10/20 P. v. Mendez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOVANNY JOSUE MENDEZ,
Defendant and Appellant.
G057464
(Super. Ct. No. 09CF1034)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed as modified and remanded with directions.
Law Offices of Allen G. Weinberg and Allen G. Weinberg for Defendant
and Appellant.

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Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal,
Andrew S. Westman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
Joveny J. Mendez appeals from the trial court’s sentencing order declining
to strike a formerly mandatory 20-year firearm enhancement. In People v. Mendez
(Nov. 27, 2018, G054985) [nonpub. opn.] (Mendez I), this court upheld Mendez’s
conviction for felony offenses including attempted murder for firing multiple shots into
an occupied barber shop, but we remanded the case for resentencing under then-new
retroactive firearm enhancement legislation. (Ibid., citing Sen. Bill No. 620 (2017-2018
Reg. Sess.).) Mendez again seeks remand under case authority holding the trial court not
only has discretion to impose or strike the 20-year enhancement, but alternatively may
select a lesser term than 20 years for the enhancement. (People v. Morrison (2019)
34 Cal.App.5th 217 (Morrison).) In supplemental briefing, Mendez also suggests remand
is appropriate under new legislation providing that a prior prison term does not apply at
all, rather than just—as the court did in its discretion here—striking the prior for purposes
of sentencing. Mendez suggests this change regarding prison priors could have affected
the trial court’s sentencing calculus.
As we explain, we disagree that resentencing is necessary here. We direct
the trial court to make one change: to correct its minutes by dismissing a prison prior
allegation that it does not appear the court addressed at sentencing, but which lacks any
applicability under new legislation. Apart from that correction, we affirm the trial court’s
sentencing decisions in all other respects.

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FACTUAL AND PROCEDURAL BACKGROUND
In March 2009, Mendez and three other men accosted Brian S. in an alley
near a beauty salon and stole his cell phone, music player, and headphones. When Brian
returned home and told his father and a family friend, Michael Garcia, about the incident,
Garcia went back to the alley with Brian to retrieve the phone. Brian and Garcia found
Mendez and one of the other men still in the alley. Refusing to return the phone, Mendez
instead took a fighting stance, but Garcia knocked him out with a single punch.
Mendez’s accomplice attempted to attack Garcia from behind when Garcia grabbed the
phone, but Brian blocked him, and the man fled.
Later that month, Garcia was waiting for a haircut around the corner from
the alley where the altercation took place when he saw through the salon window that
Mendez was approaching. Garcia exited the salon to avoid a confrontation, but when he
saw Mendez had a gun, Garcia retreated back inside. Mendez fired at least four shots at
the salon, which was occupied by about a dozen people including three or four children.
The shots shattered the glass window in the front door, and investigators later recovered
five bullet fragments from inside and outside the salon.
A jury convicted Mendez of attempted premeditated murder (count 1, Pen.
Code, §§ 187, subd. (a), 664, subd. (a)),1 assault with a firearm (count 2, § 245,
subd. (a)(2)), shooting at an occupied building (count 3, § 246), and possession of a
firearm by a felon (count 4, § 12021, subd. (a)(1)). The jury also found true, as to
count 1, a penalty enhancement allegation that Mendez personally discharged a firearm in
committing the offense (§ 12022.53, subd. (c)) and, as to count 2, an enhancement for
personal use of a firearm (§ 12022.5, subds. (a), (d)). Before trial, the court dismissed all
gang-related enhancement allegations pursuant to section 995.
1 All further statutory references are to the Penal Code unless otherwise
indicated.

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At sentencing, after the court struck Mendez’s admitted prior strike
conviction and apparently disregarded the prior prison term allegation that Mendez also
admitted in bifurcated proceedings, the court imposed a life sentence with the possibility
of parole, plus a consecutive 20-year determinate term.2 The sentence consisted of a life
term on count 1, with a then-mandatory 20-year consecutive term for the firearm
enhancement, and concurrent middle terms of five years and two years, respectively, on
counts 3 and 4. The court stayed sentence on count 2 and its associated firearm
enhancement pursuant to section 654.
On appeal in Mendez I, we rejected Mendez’s claims of prosecutorial
misconduct and sentencing error under section 654, but remanded the case for
resentencing. As the Attorney General conceded, remand was necessary because then-
recently adopted Senate Bill No. 620 operated retroactively to give the trial court
discretion to strike the 20-year enhancement for personal discharge of a firearm
(§ 12022.53, subd. (c)), which previously had been mandatory. (Mendez I, supra,
G054985; see former § 12022.53, subd. (h).)
On remand, the trial court heard argument regarding resentencing. Defense
counsel emphasized the fact that “no one was injured” as a “significant detail to . . . strike
the 20-year enhancement,” suggesting that “what he did was dangerous, but he is serving
time on that crime . . . .” The prosecutor countered that the enhancement was for
discharging a firearm, not for attempted murder. In other words, it was an enhanced
penalty for the manner in which Mendez committed the underlying offense, consistent
with the Legislature’s purpose in enacting the enhancement to “send a message that if
2 In our prior opinion in Mendez I, supra, G054985, we accepted the parties’
representations that the trial court struck Mendez’s admitted prison prior (§ 667.5,
subd. (b)) for purposes of sentencing, but on re-examination it appears the court simply
disregarded the allegation despite Mendez’s admission. Nothing suggests the admission
factored into the court’s sentencing determination.

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you fire a gun,” while committing a crime, “that is behavior that we want to strongly
condemn and punish.”
The prosecutor also observed that “[i]f he had injured somebody, there
would have been an additional penalty for that, . . . an additional life count.” (See
§ 12022.53, subd. (d) [consecutive term of 25 years to life for personal discharge of a
firearm causing great bodily injury].) The prosecutor continued, “So, I think the
[L]egislature has taken a reasonable approach here and said, ‘Look, not all gun uses are
the same.’ [¶] When someone just uses a gun or displays a gun, that’s ten. When you
discharge it, but don’t hurt anybody, that’s 20. If you discharge it and there’s injury, you
hurt somebody, then the punishment goes up. . . . [¶] So I think the [L]egislature has
taken into account [d]efense counsel’s concern of no injury and that’s why the
punishment is 20 [years] on this.” The prosecutor also emphasized “this was a case in
which the defendant, in broad daylight, in a public area of a shopping center, targeted his
victim for retaliation. He fired numerous shots,” including some “striking a glass
window that led to a crowded barber shop that had children inside,” and then Mendez
fled from California that evening, escaping accountability for eight years.
Defense counsel observed that Mendez was around 30 years old at the time
of resentencing and that the underlying sentence alone was “a significant amount of time”
as a life sentence. The trial court noted that Mendez’s sentence for attempted murder was
“not 25 to life,” contrary to counsel’s suggestion, but instead a life sentence that carried a
parole eligibility date “in 14 years.”
In declining to strike the firearm enhancement, the court concluded, “[T]his
is a case where the firearm was used in a premeditated attempt[ed] murder, numerous
shots were fired, not only at the victim, but towards others that were in the occupied
building, so it’s not the type of case where the interests of justice would be served by
striking that provision.” The court reinstated Mendez’s original sentence under all prior
terms, except for a minor clerical modification. Mendez now appeals.

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DISCUSSION
Relying on Morrison, which was decided a month after his resentencing
hearing, Mendez contends remand is appropriate to allow the trial court to consider
whether to modify the 20-year firearm enhancement it imposed under section 12022.53,
subdivision (c), to the 10-year enhancement in subdivision (b) of that section. The
Supreme Court has granted review to consider whether a trial court has discretion to
substitute a lesser firearm enhancement for one that a jury found to be true beyond a
reasonable doubt. (See People v. Tirado (2019) 38 Cal.App.5th 637, review granted
Nov. 13, 2019, S257658 (Tirado).) Pending the high court’s determination, we join the
courts that disagree with Morrison. (Tirado, supra; People v. Garcia (March 18, 2020,
B293491) __ Cal.App.5th __; People v. Yanez (2020) 44 Cal.App.5th 452.) In any event,
even if Morrison applied, remand is not warranted because the trial court’s comments and
the lack of any mitigating circumstances indicate it would be a futile gesture.
We first address our disagreement with Morrison. There, the court
recognized that, in addition to the 25-year-to-life enhancement set forth in
section 12022.53, subdivision (d), for causing death or great bodily injury with a firearm,
section 12022.53 also contains lesser included enhancements of 20 years for discharging
a firearm and 10 years for using a firearm, under subdivisions (c) and (b), respectively.
(Morrison, supra, 34 Cal.App.5th at p. 221.) The court found it significant that in cases
where the subdivision (d) enhancement is unsupported by substantial evidence, or is
otherwise legally defective, the trial court could impose an uncharged enhancement under
subdivision (b) or (c). (Morrison, at p. 222.) Given the trial court’s authority in those
situations, Morrison concluded there was “no reason a court could not also impose one of
these [lesser] enhancements after striking an enhancement under section 12022.53,
subdivision (d), under section 1385.” (Id. at pp. 222-223.) Thus, even though the
subdivision (d) enhancement was supported by substantial evidence and legally
applicable in Morrison, the court held the trial court “had the discretion to impose [a 10-

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or 20-year] enhancement under section 12022.53, subdivision (b) or (c) as a middle
ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an
outcome was found to be in the interests of justice under section 1385.” (Id. at p. 223.)
We respectfully disagree with this holding. As the Tirado court pointed
out, section 12022.53, subdivision (h), gives the trial court the discretion to “strike” or
“dismiss” a firearm enhancement in the interest of justice under section 1385. (Tirado,
supra, 38 Cal.App.5th at p. 643.) “This language indicates the court’s power pursuant to
these sections is binary: The court can choose to dismiss a charge or enhancement in the
interest of justice, or it can choose to take no action. There is nothing in either statute
that conveys the power to change, modify, or substitute a charge or enhancement.”
(Ibid.) Tirado was also concerned that implying such power would undermine the
separation of powers doctrine by encroaching on the prosecution’s authority to determine
what charges to file. (Id. at p. 644.) Therefore, Tirado held that under section 12022.53,
subdivision (h), the trial court’s authority is “limited to either imposing or striking” a
firearm enhancement; the court does not have the power to impose punishment for a
lesser included enhancement. (Ibid.)
We agree with Tirado. Outside the context of cruel and/or unusual
punishment rising to the level of a constitutional violation (see e.g., People v. Dillon
(1983) 34 Cal.3d 441, 478), courts generally do not have authority to adjust legislatively
directed sentences. Instead, “in our tripartite system of government it is the function of
the legislative branch to define crimes and prescribe punishments.” (In re Lynch (1972)
8 Cal.3d 410, 414.) Thus, findings supporting judicial override of mandated sentences
“have occurred with exquisite rarity in the case law.” (People v. Weddle (1991)
1 Cal.App.4th 1190, 1196.) In Dillon, for example, mandatory imposition of a first
degree murder sentence under the felony-murder rule—and against the trial court’s and
the jury’s express recommendations—violated constitutional norms where the defendant
was “an unusually immature youth.” (Dillon, at pp. 484-485, 488.) Therefore, the high

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court in Dillon reduced the applicable offense and punishment to a second degree term.
(Id. at p. 489.)
Here, Mendez does not argue imposition of the 20-year firearm
enhancement amounts to cruel or unusual punishment, and the record would not support
such a contention. In these circumstances, we disagree with Morrison that a trial court in
its discretion may depart from legislatively prescribed sentencing options to impose an
enhancement penalty of its own choosing. We agree with Tirado and the emerging
consensus rejecting Morrison.
Even if we agreed with Morrison, however, we conclude it would not here
require remand. Mendez seeks remand to have the trial court consider whether to impose
the 10-year enhancement for use of a firearm (§ 12022.53, subd. (b)), not to strike the
enhancement altogether, which the court already rejected. Remand is unnecessary when
the “record shows that the trial court clearly indicated when it . . . sentenced the
defendant that it would not in any event have stricken a firearm enhancement.” (People
v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Here, the trial court’s comments indicate it would not reduce the enhanced
term even if it had discretion to do so. The firearm “use” enhancement is distinct from
the “discharge” enhancement in that the former recognizes an assailant may employ a
gun to accomplish his or her criminal objective without firing it; thus, the former
specifies that “[t]he firearm need not be operable or loaded for this enhancement to
apply.” (§ 12022.53, subd. (b).) In contrast, the court’s comments emphasize that it
believed Mendez had done more than merely brandish his weapon. In committing a
vengeful “premeditated attempt[ed] murder,” Mendez fired “numerous shots . . . not only
at the victim, but towards others . . . in the occupied building, so it’s not the type of case
where the interests of justice would be served by striking that provision.”
The court’s comments at Mendez’s original sentencing similarly reflect that
it would not modify the enhancement if given the opportunity. The court observed that

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Mendez’s actions involved “great violence, [the] potential for great bodily harm, and a
high degree of callousness.” When defense counsel stated a “wish” or interest, despite
then-mandatory rules, that “[t]he gun discharge [enhancement] be concurrent” to avoid
“violat[ing] due process and the 8th Amendment,” the court responded, “I don’t think it’s
cruel and unusual at all.” The court concluded, “Life plus 20 years doesn’t sound cruel
and unusual to me, so that’s the sentence on Count 1.”
These comments at Mendez’s original sentencing and his resentencing, in
conjunction with the facts presented here, convince us remand would constitute a useless
gesture. In making her case at resentencing to strike the discharge enhancement, defense
counsel presumably offered all she could in mitigation; but there was precious little to
offer. Not youth, nor the circumstances of the crime (premeditated violent retaliation
endangering the public), nor any other factors. His remand request therefore must fail.
Mendez is nonetheless correct, as the Attorney General concedes, on the
point he raises in supplemental briefing. Namely, that the Legislature recently passed,
and the Governor signed into law, Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136),
which amended section 667.5, subdivision (b), so that one-year prior prison term
enhancements are limited to cases where the prior was for “a sexually violent offense as
defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (Stats.
2019, ch. 590; People v. Winn (2020) 44 Cal.App.5th 859, 872.) This change, effective
January 1, 2020, is retroactive. (Ibid.)
The parties agree Mendez’s prior prison term was not for a sexually violent
offense, and therefore the prior prison enhancement allegation had no foundation once
SB 136 became law. The trial court may have found the allegation to be true based on
Mendez’s admission to “all priors” in bifurcated proceedings following the jury’s verdict.
On the other hand, the court did not make a specific true finding as to the prison prior,
nor as to an alleged strike prior, but the court expressly dismissed the strike prior “for

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reasons stated on the record.” The court did not refer further at sentencing or
resentencing to the alleged prison prior.
Mendez views this record as suggesting that the trial court also struck the
prison prior for purposes of sentencing at his original sentencing hearing, but argues
remand is appropriate because the existence of the true finding may have factored into the
trial court’s sentencing choices. We disagree with this analysis. To the extent the court
intended to strike the prior prison term enhancement allegation for purposes of imposing
punishment, we presume it meant the allegation would not factor into its sentencing
choices. In other words, we presume that if the court meant to strike the allegation for
sentencing purposes, it meant to adhere to that ruling. (Evid. Code, § 664.)
The Attorney General, like Mendez, apparently views the record as
suggesting the trial court made a true finding on the prison prior, and suggests that the
finding be reversed because it has no application following the enactment of SB 136. We
conclude that the simplest means to address the uncertain record is to remand the case to
the trial court to correct and thereby clarify its minutes (§ 1260) by dismissing the prior
prison term under section 667.5, subdivision (b), because it has no application now that
SB 136 has become law.
DISPOSITION
We affirm the trial court’s sentencing order in which it declined to strike
the 20-year firearm enhancement the jury found true pursuant to section 12022.53,
subdivision (c). We affirm the court’s corresponding decision to reinstate the sentence it
originally imposed. We remand the case and direct the court to correct and clarify its
minutes to dismiss the prior prison term allegation (§ 667.5, subd. (b)). It does not appear
the prior prison term allegation is reflected in the court’s original or amended abstract of
judgment, but if we have overlooked it, the court is authorized to amend the abstract of

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judgment accordingly and forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.
GOETHALS, J.
WE CONCUR:
FYBEL, ACTING P. J.
IKOLA, J.

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