Opinion
F072348
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY MENDOZA, SR., Defendant and Appellant.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Benningson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF138387A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Benningson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
This is an appeal from a resentencing following a previous appeal. Defendant Mark Anthony Mendoza, Sr., was convicted of four charges, one of which was first degree murder, and all of which had gang enhancements, plus one count of being a member of a criminal street gang. The conviction of being a member of a criminal street gang and two of the gang enhancements were reversed in the prior appeal, and certain sentencing errors were ordered corrected. At the resentencing, Mendoza received a sentence of life without the possibility of parole, plus 25 years to life, plus 20 years. Now Mendoza argues this sentence is so long that it amounts to cruel and unusual punishment in violation of the federal and state constitutions. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 9, 2016, we granted Mendoza's request that we take judicial notice of the record in the prior appeal, People v. Mendoza (May 27, 2015, F067023) (Mendoza I). The following account of the facts and procedural history, up to the disposition of that appeal, is taken (largely verbatim) from our prior opinion.
At a Bakersfield bar called Stella's Sandtrap, sheriff's deputies and an ambulance arrived in response to a reported shooting around 1:50 a.m. on August 21, 2011. They found Roman Fernandez lying in the parking lot with a gunshot wound to his chest, not breathing, and with no pulse. Fernandez was taken to a hospital, where he was pronounced dead at 2:12 a.m. An autopsy showed that he was killed by a single shot that entered the left side of his chest, exited near his right armpit, and damaged his heart, liver, diaphragm, and right lung. (Mendoza I, supra, at p. 3.)
The district attorney charged Mendoza with the crime. The information alleged five counts: (1) first-degree premeditated murder (Pen. Code, §§ 187, subd. (a), 189 ); (2) discharging a firearm at a person from a motor vehicle (former § 12034, subd. (c)); (3) being a felon in possession of a firearm (on a separate occasion—Aug. 25, 2011, four days after the shooting) (former § 12021, subd. (a)(1)); (4) being a felon in possession of ammunition (also on Aug. 25, 2011) (former § 12316, subd. (b)(1)); and (5) actively participating in a criminal street gang (§ 186.22, subd. (a)). In connection with count 1, the information alleged the special circumstances that the murder was committed by firing a gun from a motor vehicle (§ 190.2, subd. (a)(21)) and that it was committed by an active participant in a criminal street gang to further the gang's activities (§ 190.2, subd. (a)(22)). In connection with counts 1 through 4, the information alleged, for sentence-enhancement purposes, that the offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)). Also for sentence-enhancement purposes, the information alleged in connection with counts 1 and 2 that Mendoza personally fired a gun, causing death (§ 12022.53, subd. (d)). For count 1, the information alleged that Fernandez was killed by a gun fired from a motor vehicle (§ 12022.55). Finally, in connection with all counts, the information alleged that Mendoza had previously been convicted of two robberies and one count of possessing a controlled substance for sale. For sentencing purposes, the robberies were alleged to be serious felonies (§ 667, subd. (a)), strikes under the Three Strikes Law (§§ 667, subds. (c)-(j), 1170.12), and offenses for which Mendoza had served a prison term after which he did not remain free of felony convictions for five years (§ 667.5, subd. (b)). The possession-for-sale conviction was also alleged to be an offense for which Mendoza served a prison term after which he did not remain free of felony convictions for five years. The section 12022.55 enhancement was later voluntarily dismissed by the prosecution, and count 1 was amended during trial to add an allegation that Mendoza personally used a firearm (§ 12022.5, subd. (a)). (Mendoza I, supra, at pp. 3-4.)
Subsequent statutory references are to the Penal Code unless otherwise noted. --------
The jury found Mendoza guilty of all charges and found the murder to be in the first degree. It found true the special circumstances and the enhancement allegations. The court subsequently found the prior conviction allegations true. (Mendoza I, supra, at p. 13.)
The court sentenced Mendoza as follows: On count 1, life without the possibility of parole, plus 25 years to life for personally discharging a firearm causing death, plus one year for each of the three prior prison terms; on count 2, seven years, plus five years for the gang allegation; on count 3, three years, plus four years for the gang allegation; on count 4, three years, plus four years for the gang allegation; and on count 5, three years. The sentences on counts 2, 3, and 5 were stayed pursuant to section 654. The total sentence was life without the possibility of parole, plus 25 years to life, plus 10 years. (Mendoza I, supra, at p. 13.)
In our opinion in the prior appeal, we held that the conviction on count 5, the gang-participation charge, was not supported by sufficient evidence in light of People v. Rodriguez (2012) 55 Cal.4th 1125. (Mendoza I, supra, at p. 19.) Rodriguez held that to support a gang participation charge under section 186.22, subdivision (a), the prosecution must prove the defendant committed a predicate offense in concert with another person who was a gang member. (Rodriguez, supra, 55 Cal.4th at pp. 1128, 1131.) The prosecution did not attempt to prove that in Mendoza's case. (Mendoza I, supra, at p. 20.)
We also held that there was insufficient evidence to prove the gang enhancements on counts 3 and 4, possession by a felon of a gun and ammunition. The gun and bullets were not connected with the shooting and there was no evidence tying them to Mendoza's gang activities. (Mendoza I, supra, at p. 23.)
Next, we identified two further errors in the sentence previously imposed. The first involved application of the Three Strikes Law. Each count of the information alleged that Mendoza was convicted of first-degree robbery (§ 212.5) in 1992 and again in 1994. The information further alleged that these offenses were strikes under the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12). The court found the allegations true. The sentence recommendation in the probation report, however, did not include enhancements for the strikes. At the sentencing hearing, the probation officer told the court that the Criminal Justice Information System did not show the strike priors. The prosecutor objected and pointed out that, under the Three Strikes Law, the sentences for each count should have included terms of 25 years to life. The court proceeded to sentence Mendoza without applying the Three Strikes Law. But the court was required either to impose or to strike the Three Strikes Law enhancements, and its failure to do either resulted in an unauthorized sentence. (Mendoza I, supra, at p. 24.)
The second additional error also involved a failure to impose enhancements. The information alleged that the robberies from 1992 and 1994 were serious felonies under section 667, subdivision (a), and the court found the allegations true. Under section 667, subdivision (a)(1), five-year enhancements on each count were mandatory. (People v. Purata (1996) 42 Cal.App.4th 489, 498.) The court did not impose these enhancements. (Mendoza I, supra, at pp. 24-25.)
Finally, we pointed out a clerical error in the court's minute order from the sentencing hearing and another clerical error in the abstract of judgment. The error in the court's minute order was the statement that the total sentence was life without the possibility of parole plus "the total fixed term of 35" years. The total sentence the court stated orally was life without the possibility of parole, plus 25 years to life, plus 10 years. The error in the abstract of judgment was that it indicates a determinate term of 25 years for the section 12022.53, subdivision (d), enhancement (personally firing a gun, causing death) on count 1. The correct term for that enhancement is 25 years to life. We directed the trial court to correct all the errors on remand. (Mendoza I, supra, at p. 25.)
On remand, the trial court resentenced Mendoza as follows. On count 1, first degree premeditated murder with special circumstances (§§ 187, subd. (a), 189, 190.2, subd. (a)(21) & (a)(22)), the court imposed the term of life without the possibility of parole, plus enhancements of 25 years to life (§ 12022.53, subd. (d), discharging a firearm and causing death), 10 years (two true findings under § 667, subd. (a), prior serious felony), and one year (§ 667.5, subd. (b), prior prison term). On counts 2 and 3, discharging a firearm at a person from a motor vehicle (former § 12034, subd. (c)) and being a felon in possession of a firearm (former § 12021, subd. (a)(1)), the court imposed sentences and stayed them pursuant to section 654. On count 4, being a felon in possession of ammunition (former § 12316, subd. (b)(1)), the court imposed a sentence of six years, plus enhancements of three years (three true findings under § 667.5, subd. (b), prior prison term), to be served consecutive to count 1. The total unstayed sentence thus was life without the possibility of parole, plus 25 years to life, plus 20 years.
DISCUSSION
Mendoza's sole argument in this appeal is that the sentence is cruel and unusual under article I, section 17 of the California Constitution and under the Eighth Amendment to the United States Constitution because it includes time notionally to be served after the term of life without the possibility of parole, and therefore is impossible for a human being to complete. Mendoza contends that a sentence of this type or a similar type (for instance, a determinate term over a hundred years) serves neither a retributive nor a deterrent purpose and exists only as a symbolic violation of a prisoner's dignity. The only authority he cites in support of these ideas is a dissenting opinion by Justice Mosk. (People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.); see also People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.).) He asks us to exercise our discretion to address this argument even though it was not raised in the trial court, and to adopt a constitutional doctrine like that supported by Justice Mosk. Mendoza argues that it would have been futile to raise the issue in the trial court and acknowledges that we are under no obligation to accept a position supported only by a single justice's non-majority opinions.
We will exercise our discretion to consider the issue, but we are not persuaded that a judge-made rule against sentences like Mendoza's would be appropriate. The sentencing schemes employed in this case were created by the Legislature and the voters. These schemes can impose additional time beyond a sentence lasting a prisoner's entire remaining life, but their capacity to do this does not impair any concrete interest of the prisoner, who will in reality serve a life term. Further, contrary to Mendoza's argument, we cannot say the imposition of the additional years is unconstitutional because it has no purpose. For instance, it might be said to have a purpose in vindicating the dignity of victims, or it could be justified in terms of avoiding the administrative burden that would be added if it were necessary to modify all multiple-count sentences in which the terms otherwise authorized by law add up to more than a human lifespan. These are only examples; other possible purposes might be adduced as well. (See, e.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 [sentence of 444 years to life plus 115 years served purpose of expressing society's condemnation of defendant's crimes].)
We do not mention these possible justifications to endorse them. Instead, the point is that under circumstances like these, we do not construe our constitutional authority to support remaking the law. Mendoza's argument would more appropriately be addressed to the voters or the Legislature.
Our holding is consistent with the rejection of similar arguments in People v. Byrd, supra, 89 Cal.App.4th at pp. 1382-1384, and People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.)
DISPOSITION
The judgment is affirmed.