People v. Mendez CA2/1

Filed 6/29/16 P. v. Mendez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B268373

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA034090) v.

GABRIEL ACEVEDO MENDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent. ——————————

Gabriel Acevedo Mendez (Mendez) appeals from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36, approved by the voters on November 6, 2012, amending Penal Code sections 667 and 1170.12,1 and adding section 1170.126 (the Act). (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1010.) He contends the trial court erred when it found him ineligible because he was armed with a firearm during the commission of his final strike offense in 1997. We find no error, and we affirm. A jury convicted Mendez of the felony of unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)) and the misdemeanor of drawing or exhibiting a firearm (§ 417, subd. (a)(2)). The trial court also found true that Mendez had suffered five serious and violent felony convictions under the “Three Strikes” law, and sentenced him to 27 years to life in state prison. Mendez appealed and we affirmed. (People v. Mendez (Nov. 4, 1999, B126744) [nonpub. opn.].) We described the facts of the case as follows: “Defendant and an individual named Torrez had once upon a time exchanged blows in a bar. Defendant later apologized. On the night of defendant’s downfall, he encountered Torrez in the same bar and again apologized. But his contrition was quite short-lived. A few minutes later, Torrez went outside for a breath of air. Defendant walked out of the bar and pointed a handgun at Torrez’ face. Torrez ran into the bar and called police. Defendant and a friend tried to drive away from the scene, but were stopped by police who arrested defendant and recovered the gun. Defendant was intoxicated.” In February 2013, Mendez petitioned for a recall of his sentence, and the trial court filed an order to show cause why relief should not be granted. The district attorney filed an opposition arguing Mendez was ineligible for resentencing because he was armed with a firearm during the commission of his offense and unsuitable for resentencing, as an unreasonable danger to society and public safety. (§§ 667, subd. (e)(2)(C)(iii); 1170.126, subds. (e)(2), (f).) Mendez filed a reply addressing the eligibility issue, citing