Opinion
B326721
10-10-2023
THE PEOPLE, Plaintiff and Respondent, v. RICHARD BERT MENDOZA, JR., Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA119397. Mike Camacho, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
GRIMES, J.
In September 2019, defendant and appellant Richard Bert Mendoza, Jr. was convicted by a jury of committing multiple felonies against three different victims in separate attacks: attempted extortion (Pen. Code, §§ 518, 664; count 1); attempted robbery (§§ 211, 664; count 2); assault with a deadly weapon (§ 245, subd. (a)(1); count 3); assault by force likely to cause great bodily injury (§ 245, subd. (a)(4); count 4); robbery (§ 211; count 6); assault with a deadly weapon (§ 245, subd. (a)(1); count 7); and witness intimidation (§ 136.1, subd. (b)(1); count 8). The jury also found true the personal firearm use allegations as to counts 1 and 2 (§ 12022, subd. (b)(1)) and the infliction of great bodily injury allegations as to counts 3 and 4 (§ 12022.7, subd. (a)). (People v. Mendoza (2022) 74 Cal.App.5th 843 (Mendoza).) Count 5 (trespass with intent to interfere) was dismissed pursuant to section 1385.
The original sentencing hearing took place in April 2020. The trial court found true the prior strike allegation regarding defendant's 1991 conviction for attempted robbery. The court denied defendant's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike the 1991 strike. But the court struck defendant's other prison priors. The court imposed an aggregate sentence of 24 years four months. (Mendoza, supra, 74 Cal.App.5th at p. 849.)
In February 2022, a panel of this court affirmed defendant's conviction, remanding for the limited purpose of allowing the superior court, in light of the passage of new legislation during the pendency of that appeal, to conduct a new sentencing hearing. (Mendoza, supra, 74 Cal.App.5th at p. 862.) The remittitur issued April 19, 2022.
The trial court held a new sentencing hearing on November 9, 2022, at which defendant was present with counsel. The court denied defendant's renewed Romero motion, acknowledging that the prior conviction was fairly old, but finding defendant was essentially a "career criminal," and the current charges were vicious and committed against vulnerable victims, one of whom was mentally disabled. The court found it could not deem defendant to be outside the spirit of the "Three Strikes" law.
The trial court said it intended to impose the presumptive midterm sentences on all counts in light of the amendments to Penal Code section 1385 and allowed defendant to argue for imposition of low terms.
Before imposing sentence, the court expressly acknowledged it was no longer required to impose the longest potential term in light of amendments to Penal Code section 654. The court exercised its discretion to select count 3 as the base term, which resulted in the longest prison term, because of the particular vulnerability of the victim and "his continuous victimization at the hands of [defendant]." The court also acknowledged the amendments to section 1385 regarding dismissal of enhancements.
The court then rejected defendant's low term argument and imposed an aggregate sentence of 19 years four months calculated as follows: 14 years on count 3, the principal term (a three-year midterm, doubled due to the strike prior, plus a consecutive five-year term for the prior felony enhancement and a consecutive three-year great bodily injury enhancement), a consecutive two-year term on count 6 (one-third of a three-year midterm, doubled due to the strike prior), a consecutive two-year term on count 7 (one-third of a three-year midterm, doubled due to the strike prior), and a consecutive one-year four-month term on count 8 (one-third of a two-year midterm, doubled due to the strike prior). The court said it was imposing consecutive sentences because the crimes involved separate victims in separate incidents, and because of defendant's repeated efforts to intimidate witnesses and "subvert justice." The court imposed and stayed midterm sentences on counts 1, 2 and 4.
Defendant appealed.
We appointed appellate counsel to represent defendant. Defendant's appointed counsel, Michael C. Sampson, filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 in which no issues were raised. The Wende brief included a declaration from Mr. Sampson in which he stated he advised defendant he would be filing a Wende brief, forwarded the brief and the record to defendant, and advised him of his rights to file a supplemental brief and to discharge him as his attorney. Mr. Sampson also said he was available to brief, upon request, any issues we may identify in our independent review of the case.
Defendant filed a supplemental brief stating various issues in a somewhat ambiguous, and oftentimes duplicative, fashion. We summarize defendant's contentions as follows: (1) defendant's trial counsel was ineffective because he failed to file a motion for change of venue or a peremptory challenge to Judge Camacho which resulted in defendant not receiving a fair trial or sentencing hearing because he had a family member who had also been a criminal defendant in the "same court house"; (2) the trial court committed error at resentencing because it denied defendant's Romero motion again and "only" deducted five years from the original sentence; (3) defendant's sentence should be reconsidered in light of the passage of the Racial Justice Act of 2020 (newly enacted § 745); and (4) the court abused its discretion in not fairly applying all of the new sentencing laws, including Assembly Bill 518 (2021-2022 Reg. Sess. [amendments to Pen. Code, § 654]) and Senate Bill 81 (2021-2022 Reg. Sess. [amendments to § 1385]).
The first issue concerning ineffective assistance of counsel is not properly before us. Where, as here, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged unless counsel was asked for an explanation and failed to provide one or unless there simply could be no explanation, the claim must be rejected. Any such claim is more appropriately raised, if at all, by way of a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
As to the sentencing issues, we do not find the trial court committed error or otherwise abused its discretion in denying defendant's second Romero motion and deducting five years from his aggregate sentence. "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First,' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." '" (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) The record here shows the court was aware of the recent changes to the sentencing statutes and thoughtfully outlined the reasons for its sentencing choices. No error or abuse of discretion has been affirmatively shown.
The Racial Justice Act issue is based on Assembly Bill 2542 (2019-2020 Reg. Sess.; Stats. 2020, ch. 317, § 3.5), which prohibits state criminal prosecutions and sentences based on race, ethnicity or national origin (Pen. Code, § 745, subd. (a)). Whether defendant has any claim under the Racial Justice Act is not properly before us. Section 745, subdivision (b) plainly states that where, as here, judgment has already been imposed, a defendant "may file . . . in the trial court . . . a petition for writ of habeas corpus" and seek to make a prima facie showing that his sentence is improperly based on race, ethnicity or national original as contemplated by the statutory scheme. The trial court is the appropriate forum for defendant to raise any such claim.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.