People v. Mendez CA2/7

Filed 4/28/16 P. v. Mendez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B263199

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA041131) v.

FRANKIE TOMMY MENDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed. Frankie Tommy Mendez, in pro. per., and Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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In November 1988 Frankie Tommy Mendez pleaded guilty to three counts of attempted murder involving three separate victims and admitted firearm-use and great bodily injury enhancements. He was sentenced to an aggregate state prison term of 11 years eight months. Mendez was released on parole in March 1995 and discharged from parole on June 3, 1998. In September 1999 a jury found Mendez guilty on one count each of possession for sale of methamphetamine, possession of methamphetamine with a firearm and possession of a firearm by a felon. The trial court found true the special allegations that Mendez had suffered three prior serious or violent felony convictions within the meaning of the three strikes law. Mendez was originally sentenced on each of the three counts to an indeterminate state prison term of 25 years to life, to be served concurrently. On Mendez’s direct appeal this court modified the judgment to stay punishment on the conviction for possessing methamphetamine with a firearm pursuant to Penal Code section 654 but otherwise affirmed the convictions and judgment. (People v. Mendez (Nov. 14, 2000, B138160) [nonpub. opn.].)1 Mendez filed a petition for writ of habeas corpus 13 years later, challenging the restitution order made at trial and arguing that a defendant cannot suffer more than one strike in a single case. The trial court (Judge Eric C. Taylor) summarily denied the petition on July 15, 2013. This court denied Mendez’s petition raising the same issues on September 26, 2013. On November 14, 2013 Mendez filed a “Notice of Appeal under Penal Code § 1170.126,” which the trial court (Judge William C. Ryan) deemed a petition for recall of sentence under Proposition 36 (Pen. Code, § 1170.126). In denying the petition the court found one of Mendez’s prior convictions was for attempted murder, making him ineligible for resentencing under Proposition 36. (Pen. Code, §§ 1170.126, subd. (e)(3), 667, subd. (e)(2)(C)(iv)(IV).)