People v. Mendoza CA2/8

Filed 1/30/24 P. v. Mendoza CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B327467

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA153388) v.

OSCAR RYAN MENDOZA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Roger T. Ito, Judge. Affirmed with directions. Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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This is defendant and appellant Oscar Ryan Mendoza’s second appeal challenging his upper term sentence. In his first appeal, we remanded for a new sentencing hearing in light of the passage of Senate Bill No. 567 (2021–2022 Reg. Sess.) while that appeal was pending. In this appeal from the resentencing hearing, defendant contends the trial court’s imposition of an upper term sentence was improper on several grounds, including that it fails to accord with the requirements of Penal Code section 1170, as amended by Senate Bill No. 567. Defendant also contends the court failed to recalculate custody credits. We remand with directions to the superior court to recalculate custody credits and otherwise affirm the judgment. BACKGROUND Defendant was convicted by a jury of one count of felony vandalism (Pen. Code, § 594, subd. (a), count 2) and acquitted of arson (§ 451, subd. (d), count 1). The charges arose from an incident in May 2020 in which defendant used a baseball bat to repeatedly strike a car belonging to Marvin Marroquin and then set the car on fire in a residential neighborhood. At the original sentencing hearing on April 12, 2021, the court conducted a bench trial on the prior strike allegation. The prosecution presented certified records pursuant to Penal Code section 969b regarding defendant’s prior convictions. The court found true the allegation that defendant had suffered a prior 2016 conviction for a serious or violent felony (attempted first degree robbery). Defendant made an oral motion to strike the conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529 which the court denied. The court imposed a six-year prison term, selecting the upper term of three years which was then doubled due to the prior strike. Defendant was awarded 644 days of