Opinion
A139901
10-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RICKY ANGELO MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-120929-5)
Defendant Ricky Angelo Mendoza was convicted of first degree murder (Pen. Code, § 187) with a gang murder special circumstances finding (§ 190.2, subd. (a)(22)) and a firearm enhancement (§ 12022.53, subd. (e)(1)). He was sentenced to life without parole (LWOP), with an additional term of 25 years to life for the firearm enhancement. On May 22, 2017, we affirmed the judgment against Mendoza. The facts of this case are set forth in our earlier opinion, which we incorporate by reference, and we will not repeat them here.
All statutory references are to the Penal Code.
Mendoza's appeal was consolidated with that of his codefendant, Leon John Moreno (A140431). In the same opinion, we modified the judgment against Moreno to reduce his conviction from first degree murder to second degree murder and reduce his sentence from 25-years-to-life to 15-years-to-life.
Mendoza moved to recall the remittitur on the ground he should receive the benefit of recently-passed legislation that gave the trial court discretion to strike the firearm enhancement. We recalled the remittitur and received supplemental briefing from the parties.
At the time of sentencing, the trial court had no discretion to strike the firearm enhancement under section 12022.53. (Former § 12022.53, subd. (h); People v. McDaniels (2018) 22 Cal.App.5th 420, 424 (McDaniels).) After we issued our decision in this appeal, the Legislature enacted Senate Bill 620. (Sen. Bill No. 620 (2017-2018 Reg. Sess.) [effective January 1, 2018].) The bill amended section 12022.53 to give trial courts discretion to strike or dismiss enhancements otherwise required to be imposed by that statute. (§ 12022.53, subd. (h), as amended by Stats. 2017, § 2.)
Mendoza contends this provision should be applied retroactively, and he asks us to remand the matter to allow the trial court to exercise its discretion whether to strike the firearm use enhancement. The appellate courts have consistently held that the amendments to section 12022.53 apply retroactively to cases not yet final on appeal. (See, e.g., McDaniels, supra, 22 Cal.App.5th at pp. 424-425; People v. Vela (2018) 21 Cal.App.5th 1099, 1113-1114; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507.) The Attorney General properly concedes this provision applies retroactively. He argues, however, that remand is unnecessary because the record shows the trial court would not strike the enhancement and because Mendoza's LWOP sentence means he would get no practical benefit if the enhancement were stricken.
" '[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' [Citation.] But if ' "the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' " (McDaniels, supra, 22 Cal.App.5th at p. 425.)
The record here does not show how the trial court would have exercised its discretion to strike the enhancement. At the sentencing hearing, the court simply noted that the mandatory term for the murder was LWOP (§ 190.2, subd. (a)(22)) and stated it would impose an additional term of 25 years to life for the firearm enhancement. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand unnecessary where trial court indicated it would not have exercised discretion to lessen sentence in any event].) Although Mendoza's crime was serious, we cannot say, in light of the mandatory LWOP sentence, that the court would not have stricken the additional term for the enhancement.
The Attorney General also argues Mendoza would receive no practical benefit if the enhancement were stricken because he is not eligible for parole during his lifetime. Mendoza, who was 18 years old at the time of the murder, points to recent changes in the law mitigating the length of sentences for youthful offenders, and argues that future changes might apply to those who were young adults when they committed their crimes. In an abundance of caution, we shall remand the matter to the trial court to consider whether to exercise its discretion to strike the firearm enhancement.
DISPOSITION
Mendoza's conviction is affirmed, but the case is remanded for the trial court to consider whether to strike the enhancement pursuant to section 12022.53, subdivision (e)(1). In all other respects, we adhere to our previous opinion, filed May 22, 2017.
/s/_________
Tucher, J.
We concur:
/s/_________
Streeter, Acting P.J.
/s/_________
Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------