People v. Mendez CA3

Filed 12/12/22 P. v. Mendez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Modoc) ----

THE PEOPLE, C091924

Plaintiff and Respondent, (Super. Ct. No. F19388)

v.

RICHARD DANIEL MENDEZ, JR.,

Defendant and Appellant.

Defendant Richard Daniel Mendez, Jr., appeals from his convictions for domestic violence. He argues the trial court erroneously failed to instruct the jury on reasonable doubt and the presumption of innocence prior to jury deliberations. The People concede the error and agree it was prejudicial, and we will reverse defendant’s convictions. Given our conclusions, we need not address defendant’s alternate arguments that (1) he is entitled to resentencing given the recent changes to Penal Code 1 section 1170

1 Undesignated statutory references are to the Penal Code.

1

enacted by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) and (2) the trial court erred in imposing a consecutive sentence on one of the counts when it should have been stayed pursuant to section 654. BACKGROUND Given defendant’s contentions, we provide a limited summary of the facts. A. Charges, Jury Verdict, and Sentencing Defendant and the victim had dated for five years and lived together. During September 2019, the two got into arguments that turned physical, with defendant strangling the victim, using a motorized bicycle tire to “cheese grater” her face, and “scrubbing” the inside of her mouth with a broken wire metal brush. In January 2020, defendant was charged with two counts of injuring a cohabitant (§ 273.5, subd. (a); counts one & four), assault with a deadly weapon (§ 245, subd. (a)(1); count two), and assault likely to cause great bodily injury (§ 245, subd. (a)(4); count three). As to each count, it was further alleged that defendant personally inflicted great bodily injury on the victim under circumstances involving domestic violence. (§ 12022.7.) That same month, a jury found defendant guilty of counts two, three, and four, and found each of the related great bodily injury enhancements to be true. In April 2020, the trial court sentenced defendant to prison for an aggregate term of 11 years four months, as follows: the upper term of four years for count two plus five years for the enhancement; one year consecutive for count four plus 16 months consecutive for the enhancement; and one year concurrent for count three plus 16 months stayed for the enhancement. (§ 654.) B. Jury Instructions and Closing Arguments 1. Instructions to Prospective Jurors When the court talked with prospective jurors during the January 2020 trial, it explained its goal was to have a jury without any “preconceived ideas; the Defendant in this case is presumed to be innocent until and unless the People are able to prove his guilt