People v. Mendiola CA6

Filed 10/30/23 P. v. Mendiola CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050488 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC933529)

v.

LEONCIO RAMON MENDIOLA,

Defendant and Appellant.

In exchange for a stipulated sentence of 19 years in prison, defendant Leoncio Ramon Mendiola pleaded no contest to attempted murder and admitted a firearm use allegation. In his previous appeal, a panel of this court remanded the matter to allow him to request resentencing based on an ameliorative change in the law that took effect after he was sentenced. On remand in 2022, the trial court denied his request. He argues in this second appeal that reversal is again required based on a different change in the law that took effect before the 2022 resentencing. For the reasons we explain here, we will affirm the judgment. I. BACKGROUND Our recitation of the facts is largely reproduced from our earlier opinion in case Nos. H047240 and H047983. (People v. Mendiola (Jan. 4, 2022, H047240, H047983) [nonpub. opn.].) (We have taken judicial notice of those cases at defendant’s request.) Defendant was charged by information with attempted murder (Pen. Code, §§ 187, 664) and shooting at an occupied vehicle (Pen. Code, § 246; unspecified statutory

references are to this code.) As to both felonies, the information alleged defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and personally inflicted great bodily injury (§ 12022.7, subd. (b)). He was also charged with one misdemeanor count of exhibiting a firearm (§ 417, subd. (a)(2)). According to the probation report, the charges stemmed from defendant shooting the driver of a vehicle in the head, which caused partial paralysis. As part of a negotiated disposition, the prosecution amended the information to remove the firearm discharge allegation and its 25-years-to-life sentencing enhancement (§12022.53, subd. (d)) and instead alleged that defendant personally used a firearm (§ 12022.53, subd. (b)), which carries a 10-year enhancement. Defendant pleaded no contest to attempted murder and admitted using a firearm during that offense. He agreed to serve 19 years in prison, consisting of the upper term of nine years for attempted murder plus 10 years consecutive for the firearm use enhancement. He also agreed to waive 365 days of presentence custody credit. The trial court sentenced defendant in 2014 consistent with the parties’ agreement, including dismissing the remaining charges and special allegations. Representing himself, defendant petitioned for resentencing in 2019, contending that he was entitled to the ameliorative sentencing change in Senate Bill No. 620 (2017– 2018 Reg. Sess.), which gave trial courts discretion to strike formerly mandatory firearm use enhancements. After the trial court denied the petition because defendant’s judgment became final in 2014 without a timely notice of appeal, defendant appealed and requested relief from default. This court granted defendant’s request, considered the appeal, and remanded the matter to allow him to renew his petition for resentencing under Senate Bill No. 620. In August 2022, defendant pursued the requested resentencing in the trial court, this time represented by counsel. His trial court filing in support of resentencing referenced Senate Bill No. 620 and the Legislature’s “changes to Penal Code 2