Filed 4/29/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Roger T. Ito, Judge. Affirmed in part; reversed in part and remanded 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.

* * * * * * * * * *

Defendant and appellant Oscar Ryan Mendoza appeals from his conviction by jury on one count of felony vandalism. (Pen. Code, § 594, subd. (a); count 2.) The jury acquitted defendant of arson of personal property (§ 451, subd. (d); count 1). After a bench trial, the court found true the allegation that defendant had suffered a prior conviction for a serious or violent felony. 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 allegedly attempted to set the car on fire.

At sentencing, defendant made an oral motion to strike his prior strike conviction 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 presentence custody credits. Defendant appealed.

While this appeal was pending, the Governor signed Senate Bill 567 (2021–2022 Reg. Sess.) and Assembly Bill 124 (2021–2022 Reg. Sess.). Both acts, which became effective January 1, 2022, made changes to the law under which defendant was sentenced.

Defendant’s sole contentions on appeal relate to the sentence imposed. In his original briefing, defendant argued the court abused its discretion in imposing the upper term and that his trial counsel was ineffective in failing to object to the court’s findings on aggravating factors and in failing to argue defendant’s mental illness as a mitigating factor. In supplemental briefing, defendant contends the new legislation mandates a reversal and remand for resentencing. Respondent concedes that remand for resentencing is appropriate.

We agree with the parties the changes effected by the new legislation apply retroactively to defendant’s case as they are ameliorative in nature and therefore apply to all nonfinal cases. (People v. Brown (2012) 54 Cal.4th 314, 323 [discussing rule of In re Estrada (1965) 63 Cal.2d 740].) As relevant here, the new legislation amended Penal Code section 1170, including changes affecting a trial court’s discretion to impose an upper term sentence. (Stats. 2021, ch. 731, § 1.3; Stats. 2021, ch. 695, § 5.)

Accordingly, the upper term sentence on count 2 (felony vandalism) must be vacated and the case remanded for a new sentencing hearing. On remand, the trial court may revisit all of its sentencing choices in light of the new legislation. (People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [“the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant”]; accord, People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”].)

DISPOSITION

The upper term sentence on count 2 is reversed. The case is remanded to the superior court for resentencing. At the new sentencing hearing, the court may reconsider all of its sentencing choices in light of the amendments to Penal Code section 1170.

In all other respects, the judgment of conviction is affirmed.

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J. Harutunian, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.