People v. Mendiola

1

THE PEOPLE, Plaintiff and Respondent, v. JOSE MENDIOLA, Defendant and Appellant.

B313404

California Court of Appeals, Second District, Fourth Division

January 6, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. TA151048 Kelvin D. Filer, Judge. Affirmed as modified and remanded with instructions.

Brad Kaiserman, 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, William H. Shin and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

COLLINS, J.

After a jury trial, appellant Jose Mendiola was found guilty of murdering Alexiz Orona; conspiring to murder and attempting to murder Orona's boyfriend, Valentin Quintero; and shooting at an occupied motor vehicle. The jury found true various gang and firearm enhancements, and the court sentenced appellant to a total prison term of 70 years to life.

Appellant now raises several challenges to his convictions and sentence. He contends all his convictions must be reversed because the trial court erred in denying his Batson/Wheeler^[1]challenge to the prosecution's peremptory strikes of young Hispanic prospective jurors. He further contends his murder conviction must be reversed because the court erroneously instructed the jury it could return a verdict without deciding on the degree, accepted such a verdict, and deemed the conviction one for second degree murder under Penal Code section 1157.^[2]Appellant also contends the jury's true findings on the gang enhancements and gang-related firearm enhancements must be reversed in light of Assembly Bill No. 333 (2021-2022 Reg Sess.; Stats. 2021, ch. 699) (AB 333), which amended Penal Code section 186.22 to require proof of additional elements to establish a gang enhancement and added section 1109, which requires trial of gang allegations to be bifurcated if the defense so requests.

With regard to his sentence, appellant contends the court erred in sentencing him pursuant to section 190, subdivision (d) in the absence of a jury finding that he shot Orona from a vehicle.

He further contends that Senate Bill No. 567 (2021-2022 Reg Sess.; Stats. 2021, ch. 731, §§ 1.3, 3(c)) (SB 567) requires resentencing on the conviction for shooting at an occupied motor vehicle, because the court failed to make findings now required to sentence youthful offenders to the high term. Finally, he contends the court erred by imposing fines and fees without properly assessing his ability to pay them.

Respondent Attorney General concedes AB 333 requires remand for retrial of the gang and gang-related firearm enhancements, and SB 567 and related Assembly Bill No. 124 (2021-2022 Reg. Sess.; Stats. 2021, ch. 695) (AB 124) require remand for resentencing on the shooting count. We accept these concessions and agree that remand is required for these purposes. We further agree with appellant that the court erred in imposing sentence under section 190, subdivision (d). We accordingly vacate the gang and gang-related firearm enhancements, and remand the matter for resentencing. We otherwise reject appellant's claims, including his contention that section 1109 is retroactive, and affirm the judgment.

PROCEDURAL HISTORY

On September 29, 2020, appellant was charged by amended information with the murder of Alexiz Orona (§ 187 subd. (a), count 1); conspiracy to commit murder (§§ 182, subd. (a), 187, subd. (a), count 2); attempted willful, deliberate, and premeditated murder of Valentin Quintero (§§ 187, subd. (a), 664, count 3); and shooting at an occupied motor vehicle (§ 246, count 4). The amended information alleged as to all counts that either appellant or a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)), and personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1).) It also alleged that all counts were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C) (counts 1-3); § 186.22, subd. (b)(4) (count 4)), and counts 1, 2, and 3 were subject to sentencing under section 186.22, subdivision (b)(5).

Appellant proceeded to jury trial in September 2020.^[3] The jury found appellant guilty of all counts, though it failed to specify a degree for the murder charge in count 1. The court later found the conviction was of the second degree pursuant to section 1157. The jury also found all the gang allegations true. On count 1, it found that a principal personally and intentionally discharged a firearm, causing death; it found that appellant did not personally do so. On count 2, the jury found true the allegations that appellant and a principal personally and intentionally discharged a firearm. On counts 3 and 4, the jury found true the allegations that appellant and a principal personally and intentionally discharged a firearm, causing death.^[4]

The court sentenced appellant to an aggregate term of 70 years to life. On count 1, murder, the court sentenced appellant to 20 years to life pursuant to section 190, subdivision (d), plus a consecutive term of 25 years to life for the firearm enhancement; the court struck punishment for the gang enhancement. On count 2, conspiracy to commit murder, the court sentenced appellant to 25 years to life, consecutive to the sentence on count 1. The court struck the firearm and gang enhancements on count 2. On count 3, attempted willful, deliberate, and premeditated murder, the court sentenced appellant to 25 years to life, but stayed the sentence pursuant to section 654. It also struck punishment for the gang and firearm enhancements. On count 4, shooting at an occupied vehicle, the court imposed the high term of seven years, to run concurrent to the sentences on counts 1 and 2. It struck punishment on the firearm and gang enhancements. The court imposed the minimum fines and assessments required by sections 1202.4, subdivision (b)(1), 1202.45, subdivision (a), 1465.8, and Government Code section 70373, subdivision (a)(1).

FACTUAL BACKGROUND

Because the issues raised in this appeal are exclusively legal in nature, we provide only an abbreviated summary of the evidence the prosecution presented at trial. Appellant did not present any evidence; defense counsel argued that he acted in self-defense.

I. Appellant's Brother Martin is Killed

In 2016, appellant's 18-year-old brother, Martin Mendiola, belonged to the Sur Trece gang. On the evening of May 27, 2016, Martin^[5] and fellow Sur Trece member Eduardo Prado were hanging out on West Raymond Street in Compton. Valentin Quintero, a member of the Barrio Trece gang who was dating Martin's ex-girlfriend Alexiz Orona, approached Martin and Prado, said "Barrio," and shot them both. Martin suffered a gunshot wound to the head and died at the scene. Prado was shot in the neck but survived.

Prado initially told sheriff's deputies investigating the shooting that he did not know who the shooter was. More than a year later, after the events described below, he identified Quintero as the shooter. Prado also told law enforcement that appellant wanted to avenge Martin's death.

II. Appellant Looks for Quintero

Appellant became a member of the Sur Trece gang in April 2017. On the afternoon of April 13, 2017, he went to Quintero's previous residence on East Raymond Street, said he was from Barrio Trece, and asked if Quintero was there. A current occupant of the home, a friend of Quintero's, said Quintero was not there, but gave appellant Quintero's phone number. The person also told Quintero that appellant was looking for him.

Appellant returned to Quintero's former residence later that night. One of the occupants covertly photographed appellant and his car and shared the photographs with Quintero. She also later shared them with law enforcement.

Appellant and Quintero exchanged numerous text messages over the next day; appellant asked for Quintero's location multiple times. Appellant also returned to Quintero's former residence a third time, on the morning of April 14, 2017; the occupants again told him that Quintero was not there.

III. Non-Fatal Shootings

On the afternoon of April 13, 2017, Quintero and Orona went to the home of Sur Trece member Johnnyne Ramirez. Orona exchanged words with Ramirez before firing a gun at Ramirez and her girlfriend. Quintero urged Orona to "finish them" before he and Orona drove away, but neither Ramirez nor her girlfriend sustained any injuries.

Later that day, appellant and Ramirez drove to an alley near the Buena Park home where Orona lived with her grandmother. Ramirez got out of the car and fired several shots into the backyard of the home, striking Orona's dog in the face. The dog survived, and the bullet recovered from its body and another from the scene were given to law enforcement.

IV. Fatal Shooting

Quintero and Orona went to Quintero's former residence on April 14, 2017, after appellant had left. Melissa Moreno, who was seeking to buy a cell phone from Orona, arrived at the home in a car similar to appellant's. Moreno testified that Orona looked shocked when she arrived, and said she thought Moreno was Ramirez. Moreno drove Quintero and Orona to a nearby cell phone store to check the identification number on Orona's phone. While they were gone, appellant, Prado and Ramirez arrived at Quintero's former residence in appellant's car. They parked on the street nearby and sat in the car. ...