People v. Mendez CA5

Filed 5/6/16 P. v. Mendez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070734 Plaintiff and Respondent, (Super. Ct. No. SF014548A) v.

MAXIMILIANO MENDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- INTRODUCTION This court filed its nonpublished opinion, People v. Mendez (Aug. 4, 2011, F059235), affirming defendant Maximiliano Mendez’s convictions for assault with a

*Before Gomes, Acting P.J., Detjen, J. and Franson, J.

deadly weapon by a prison inmate (Pen. Code, § 4501)1 and resisting an executive officer in the performance of duties (§ 69).2 After filing our opinion, the voters reformed the three strikes law, passing Proposition 36. On December 19, 2014, the trial court denied defendant’s petition for resentencing, finding him ineligible under Proposition 36. Defendant’s appellate counsel has filed a brief stating there are no issues and seeking independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment. FACTS AND PROCEEDINGS First Appeal On April 29, 2008, Mendez was a prisoner housed at Wasco State Prison. At around 4:24 p.m., Mendez, who had a cane in his hand, approached Correctional Officer Moises Diaz. Mendez told Diaz in a loud and aggressive tone of voice that he needed a cup and spoon. Diaz went to retrieve a cup and spoon for Mendez. When the items were handed to Mendez, Mendez threw the spoon on the floor. Diaz ordered Mendez to pick up the spoon and take both items to his cell. Mendez headed toward his cell, calling Diaz a “fucking bitch” and saying “fuck you.” Diaz told Mendez to stop calling him names or Diaz would write up Mendez for a rules violation. Mendez threw the cup at Diaz, hitting Diaz in the forehead; Diaz’s forehead began to bleed. Diaz pressed the personal alarm on his belt to summon help and ordered Mendez to get down on the floor. Mendez did not comply with the order to lie prone on the floor, so Diaz drew his pepper spray, aimed it at Mendez’s face, and sprayed. Mendez, however, was wearing prescription glasses and the pepper spray did not have the desired effect of subduing him. The pepper spray coated Mendez’s glasses; Mendez took off his glasses and threw them