People v. Mendez CA3

Filed 8/30/22 P. v. Mendez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C092872

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 2007-0010866 & SF106859B) v.

RAMON ENRIQUEZ MENDEZ,

Defendant and Appellant.

Defendant Ramon Enriquez Mendez was convicted of murder and other offenses based on his participation in an attempted robbery. He petitioned the trial court for resentencing under Penal Code1 former section 1170.952 based on changes made to the

1 Further undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and conformity with the petition, we will continue to refer to the statute as section 1170.95 throughout the opinion. The Legislature further amended section 1170.95 effective

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felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial court summarily denied defendant’s petition and, on appeal, defendant argues the trial court erred in doing so. While this appeal was pending, our Supreme Court issued People v. Strong (Aug. 8, 2022, S266606) ___ Cal.5th ___ [2022 Cal. Lexis 4563] (Strong). Based on Strong, we must vacate the trial court’s order and remand the matter for further proceedings not inconsistent with Strong. LEGAL AND FACTUAL BACKGROUND Given the nature of the instant appeal it is not necessary to recite all the facts underlying defendant’s convictions. It suffices to say defendant agreed to help codefendant Jose Cardenas rob Francisco Montejo, and during the attempted robbery, Cardenas shot and killed Montejo. Defendant was convicted by a jury of first degree murder (§ 187), attempted robbery (§§ 664/211), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found the murder was committed during the attempted robbery (§ 190.2, subd. (a)(17)(A)), both the murder and the attempted robbery were committed for the benefit of a criminal street gang (§§ 186.22, subd. (b), 190.2, subd. (a)(22)) and a principal in the offenses discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)). On the murder conviction, defendant was sentenced to life without the possibility of parole plus consecutive terms of 25 years to life and 10 years for the firearm discharge and gang enhancements respectively. On the attempted robbery, defendant received a consecutive one-third the middle term of one year, plus enhancements of 25 years to life and 10 years for the firearm discharge and gang enhancements, to run concurrently to the terms on the murder charge. Finally, on the gang offense, defendant received a concurrent middle term of two years.