People v. Mendez CA6

Filed 8/29/14 P. v. Mendez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039651 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS120155)

v.

DAVIS MENDEZ,

Defendant and Appellant.

H040297 In re DAVIS MENDEZ, (Monterey County Super. Ct. No. SS120155) on Habeas Corpus.

Defendant Davis Mendez appeals a judgment of conviction following his plea of no contest to robbery (Pen. Code, § 211).1 On appeal, defendant asserts the trial court erred in sentencing him, because it relied on two factors in imposing the upper term that were factually incorrect. Defendant also asserts the court miscalculated the restitution fine it imposed. In addition to the appeal, defendant petitions for a writ of habeas corpus on the grounds that he was denied effective assistance of counsel because his attorney failed to object to the court’s use of incorrect information as aggravating factors in his sentencing. 1 All further statutory references are to the Penal Code.

STATEMENT OF THE CASE In January 2012, the victim was walking home from work in the afternoon, when she felt someone tugging at her purse. The victim held on to her purse, and defendant pointed a gun at her and told her to give him her purse. The purse strap broke, and defendant pushed the victim to the ground and he ran away with the purse. The victim identified defendant as the assailant from a photo lineup. Defendant was charged with one count of second-degree robbery (§ 211), with the personal use of a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) Defendant pleaded no contest to the robbery charge in March 2013. In May 2013, the court sentenced defendant to the aggravated term of five years in state prison, and imposed a $1,400 restitution fine. The firearm enhancement was dismissed. DISCUSSION Defendant asserts on appeal that the trial court erred in imposing sentence, because it relied on two aggravating factors that were not factually correct. Defendant also argues he was denied effective assistance of counsel because his attorney did not object to the court’s use of incorrect aggravating factors in sentencing him. In addition, defendant argues the court erred in calculating the restitution fine. In defendant’s habeas petition, he reasserts his ineffective assistance of counsel claims related to his sentencing. Case Number H039651-Appeal Defendant’s argument of sentencing error is based on his assertion that the trial court used two aggravating factors that were factually incorrect. Here, the court sentenced defendant to the upper term of five years based on six of eight possible aggravating factors. The court stated: “So probation is denied. And you’re sentenced to the California Department of Corrections and Rehabilitation for the upper term of five years. And I’ve selected the upper term of five years because the crime