People v. Mendes CA3

Filed 6/23/22 P. v. Mendes CA3 Opinion following rehearing NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C093550

v. (Super. Ct. Nos. 18CF03572, 20CF00924, 20CF05871) ADAM ROSS MENDES,

Defendant and Appellant.

Appointed counsel for defendant Adam Ross Mendes asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We reviewed the entire record and affirmed the judgment. (People v. Mendes (C093550, Jan. 28, 2022) [nonpub. opn.].) After we issued our opinion, defendant filed a petition for rehearing, asking this court to reconsider the appeal in light of newly enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731). We exercised our discretion to grant rehearing, vacated our earlier opinion, and obtained further briefing from the parties. We will remand the matter to permit the trial court to reconsider the sentence based on the retroactive change in the law.

1

I Defendant shoplifted from a store, punched one of the store employees in the jaw, and took the victim’s employee badge. In case No. 18CF03572 (572), defendant pleaded guilty to one count of robbery (Pen. Code, § 211).1 Subsequently, defendant failed to appear for sentencing while out on bail. In case No. 20CF00924 (924), defendant pleaded guilty to one count of felony failure to appear (§ 1320.5). On November 19, 2020, while in custody, defendant consumed jail-manufactured alcohol and was placed in a sobering cell, where he subsequently blocked a deputy from leaving and hit a second deputy in the face. Pending sentencing in case Nos. 572 and 924, defendant was charged in case No. 20CF05871 (871) with resisting an executive officer, a felony (§ 69, subd. (a)). The robbery conviction in 572 was alleged as a prior strike conviction under sections 667, subdivision (d), and 1170.12, subdivision (b). Defendant pleaded no contest to violating section 69, and the prior strike allegation was dismissed in light of the plea. Prior to the sentencing hearing in case No. 572 and the plea in case No. 924, defendant mailed to the trial court a request for mental health diversion and waiver of rights. The trial court ordered the clerk to provide a copy of the communication to trial counsel, who did not request or assert diversion in any subsequent proceedings. Later, the trial court received a letter from defendant asking to withdraw his plea in case No. 572. He claimed he had new information as to what constituted the charged crimes, information of which his counsel had not advised him. Again, the trial court ordered that a copy of defendant’s letter be sent to trial counsel, and the issue was not asserted in subsequent proceedings. In a consolidated sentencing hearing, the trial court imposed an aggregate prison term of seven years as follows: five years (the upper term) for robbery in case No. 572;