People v. Mendoza CA5

Filed 7/19/21 P. v. Mendoza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079464 Plaintiff and Respondent, (Kern Super. Ct. No. DF014039A) v.

FRANCISCO CARILLO MENDOZA, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer Oleska, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

In this appeal, defendant Francisco Carillo Mendoza argues the court prejudicially erred in denying his requests to reduce his “wobbler” assault charge/conviction to a misdemeanor. Defendant further argues the court prejudicially erred in reciting the pledge of allegiance before voir dire and inviting potential jurors to join in the pledge “if” they “would like.” We reject both claims and affirm. BACKGROUND In an information filed March 4, 2019, the Kern County District Attorney charged defendant with assault by means of force likely to produce great bodily injury (count 1; Pen. Code, § 245, subd.(a)(4)),1 misdemeanor violation of a court order (count 2; § 273.6, subd. (a)), and misdemeanor resisting, delaying or obstructing a peace officer (count 3; § 148, subd. (a)(1).) The information also alleged a prior prison term enhancement. (§ 667.5, subd. (b).) Both before and after trial, defendant moved for an order reducing count 1 from a felony to a misdemeanor. The trial court denied both motions. A jury convicted defendant on all three counts, and the court found the prior prison allegation true.2 Defendant was sentenced to 3 years in prison on count 1; a concurrent term of 364 days in jail on count 2; and another concurrent term of 364 days in jail on count 3. FACTS Stipulated Facts Defendant was previously convicted of simple battery against his mother, Margarita. As a condition of his resulting probation, a court issued a “stay-away order” under section 136.2. The order prohibited defendant from having personal, electronic,