People v. Mendez CA3

Filed 5/17/24 P. v. Mendez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099169

Plaintiff and Respondent, (Super. Ct. No. STK-CR- FECOD-2020-0013904) v.

GILBERT GUADALUPE MENDEZ,

Defendant and Appellant.

Defendant Gilbert Guadalupe Mendez pleaded guilty to three counts of assault with force likely to produce great bodily injury and discharging a firearm at a vehicle. As part of the negotiated plea disposition, the trial court stayed a personal firearm use enhancement that defendant admitted and sentenced him to an aggregate prison term of 13 years. On appeal defendant contends the trial court erred by staying the personal firearm use enhancement instead of striking it, which resulted in an unauthorized sentence. We dismiss the appeal for failure to obtain a certificate of probable cause.

1

FACTS AND HISTORY OF THE PROCEEDINGS

A complaint charged defendant with two counts of special circumstances murder (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3),(15), & (22) [unless otherwise stated, statutory section citations that follow are to the Penal Code]; attempted murder (§§ 664, 187, subd. (a)); shooting at an inhabited vehicle (§ 246); being a person in possession of a firearm after having been convicted of a felony (§ 29800, subd. (a)(1)); unlawfully possessing ammunition (§ 30305, subd. (a)(1)); and participating in street gang activity (§ 186.22, subd. (a)).

The complaint also alleged enhancements for gang related firearm use causing death (§ 12022.53, subds. (d)-(e)); committing the offenses for the benefit of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and for prior serious felony convictions (§§ 1170.12, subd. (b)); 667, subd. (a)(1)).

The prosecutor offered defendant a negotiated plea disposition consisting of three counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) and one count of discharging a firearm at a vehicle (§ 246). The plea agreement required defendant to admit a prior serious felony allegation as a prior strike (§ 1170.12, subd. (b)). The plea also required defendant to admit a personal firearm use enhancement allegation (§ 12022.5, subd. (a)) related to the discharging a firearm at a vehicle count, which the trial court would stay. The trial court informed defendant he faced a maximum sentence of 27 years but would only be sentenced to an aggregate term of 13 years. For purposes of the plea, the discharging of a firearm at a vehicle count was used as the base term and admitting the firearm use enhancement elevated that count to a violent felony under section 667.5, subdivision (c)(8). The trial court specifically told defendant, “You’re also pleading to one violent strike, that’s [the section 246] count, and admitting a strike,” which defendant said he understood. Defendant and his counsel both acknowledged they understood the terms of the plea.