Filed 7/9/21 P. v. Mendoza CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE OF THE STATE OF B302741, B306075
CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YA097918)
v.
RENE MENDOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Vincent Okamoto, Judge. Reversed and
remanded with direction.
Maura F. Thorpe, under appointment by the Court of
Appeal, for Defendant and Appellant.
Robert A. Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Scott A. Taryle and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
On June 13, 2019, appellant Rene Mendoza was charged
with attempted second degree robbery in violation of Penal Code
sections 664 and 211; possession for sale of a controlled substance
in violation of Health and Safety Code section 11378; and
possession of a controlled substance in violation of Health and
Safety Code section 11377, subdivision (a). Two prior attempted
murder convictions were also alleged both as two prior strikes
and two serious felony conviction enhancements pursuant to
Penal Code sections 1170.12, subdivision (b) and 667, subdivision
(a)(1).
Before trial, appellant pleaded no contest to possession of a
controlled substance. The trial court dismissed the possession for
sale count.
On June 21, 2019, a jury convicted appellant of the sole
remaining count, attempted second degree robbery. During trial
appellant waived his right to a jury trial on the sentencing
enhancements and the court set a bench trial for October 3, 2019,
the same date set for sentencing.
On October 3, 2019, the court did not try the
enhancements. Neither did appellant admit them. The trial
court struck one of appellant’s strikes pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced
appellant to 14 years in state prison. This sentence included two
consecutive five-year prior serious felony conviction
enhancements, a consecutive term of three years for the robbery,
and 364 consecutive days on the drug count. In February 2020,
the trial court restated the sentence as a total of 13 years. On
March 2, 2020, the trial court restated the sentence again as the
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low term of three years on the robbery plus two consecutive five-
year prior serious felony conviction enhancements.1
Appellant argues insufficient evidence supports the two
five-year sentences on the enhancements because there was no
trial and the trial court took neither evidence from the People nor
admissions or waivers from appellant. The People concur. We
agree as well and reverse.
A. Factual Background
Appellant was at the Hustler Casino in Gardena,
California. He demanded $100, then $200, from a patron who
was in line to cash out his chips. The patron responded he did
not have the money. Appellant threatened the now-frightened
patron and then walked away to a food service area where he was
arrested.
B. Standard of Review
This court reviews the sufficiency of the evidence to support
a sentencing enhancement under the substantial evidence test.
(People v. Tenner (1993) 6 Cal.4th 559, 567.)
1 Appellant filed two separate notices of appeal—one from
the original sentence imposed on October 3, 2019 and one from
the resentencing on March 2, 2020. The record does not include
an abstract of judgment for the sentence imposed on October 3,
2019. The appeals were consolidated by order of this court.
Because both sentences imposed the same two five-year
enhancements, we treat the consolidated appeals as one appeal
from the March 2, 2020 final abstract of judgment.
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C. Applicable Law
To establish a prior conviction allegation, the People must
prove the defendant was convicted of an offense within the
definition of the invoked statute and any other required
elements. (People v. Tenner, supra, 6 Cal.4th at p. 566.) All prior
conviction enhancements “shall be . . . either admitted by the
defendant in open court or found to be true by the trier of fact.”
(Pen. Code, § 1170.1, subd. (e).) If a defendant does not admit the
prior conviction, he or she has the right to a jury trial or a court
trial, if jury trial is waived. (Pen. Code, § 1025, subds. (b), (c).)
The trier of fact must then enter a “verdict or finding upon the
charge of previous conviction” of either true or not true. (Pen.
Code, § 1158.)
During trial on June 21, 2019, appellant waived his right to
a jury trial on the prior conviction allegations. The court
scheduled a bench trial for October 3, 2019, to prove up the prior
convictions. However, the record reflects that on October 3, 2019,
the court and parties proceeded directly to sentencing without an
admission to or trial on the prior convictions. The judgment must
be reversed and the matter remanded for trial on the prior
conviction allegations and resentencing. (See Monge v. California
(1998) 524 U.S. 721, 734 [Double Jeopardy Clause does not
preclude retrial on a prior conviction allegation in a noncapital
case].)2
2 Appellant also argues the enhancements were erroneously
imposed because they were not “brought and tried separately” as
required by Penal Code section 667, subdivision (a)(1). This
contention is moot in light of our disposition.
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DISPOSITION
The judgment is reversed and the matter is remanded for a
bench trial on the prior conviction allegations and resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, Acting P. J.
We concur:
WILEY, J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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