Filed 7/19/21 P. v. Mendoza CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079464
Plaintiff and Respondent,
(Kern Super. Ct. No. DF014039A)
v.
FRANCISCO CARILLO MENDOZA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Jennifer Oleska, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
In this appeal, defendant Francisco Carillo Mendoza argues the court prejudicially
erred in denying his requests to reduce his “wobbler” assault charge/conviction to a
misdemeanor. Defendant further argues the court prejudicially erred in reciting the
pledge of allegiance before voir dire and inviting potential jurors to join in the pledge “if”
they “would like.” We reject both claims and affirm.
BACKGROUND
In an information filed March 4, 2019, the Kern County District Attorney charged
defendant with assault by means of force likely to produce great bodily injury (count 1;
Pen. Code, § 245, subd.(a)(4)),1 misdemeanor violation of a court order (count 2; § 273.6,
subd. (a)), and misdemeanor resisting, delaying or obstructing a peace officer (count 3;
§ 148, subd. (a)(1).) The information also alleged a prior prison term enhancement.
(§ 667.5, subd. (b).)
Both before and after trial, defendant moved for an order reducing count 1 from a
felony to a misdemeanor. The trial court denied both motions.
A jury convicted defendant on all three counts, and the court found the prior
prison allegation true.2 Defendant was sentenced to 3 years in prison on count 1; a
concurrent term of 364 days in jail on count 2; and another concurrent term of 364 days
in jail on count 3.
FACTS
Stipulated Facts
Defendant was previously convicted of simple battery against his mother,
Margarita. As a condition of his resulting probation, a court issued a “stay-away order”
under section 136.2. The order prohibited defendant from having personal, electronic,
1 All further statutory references are to the Penal Code unless otherwise stated.
2The court subsequently struck the prior prison term enhancement “for sentencing
and custody credit purposes.”
2.
telephonic, or written contact with Margarita. The order also prohibited defendant from
coming within 100 yards of Margarita and her home in Delano. The court issued, read,
and personally served defendant with the order on June 30, 2015.
Defendant was previously convicted of violating the stay-away order on
November 16.3
Margarita testified that on May 20, 2018, she was in the kitchen while defendant
was lying on the sofa. All of a sudden, defendant started yelling. Margarita told him to
stop yelling because his father, Francisco,4 was not feeling well. However, defendant got
louder and continued yelling. Francisco came out of the bedroom and told him to quiet
down and to stop yelling. Eventually, Francisco said he would call the police if
defendant did not quiet down. Francisco opened the door and stood by it. Defendant got
up from the sofa and went behind Francisco. Defendant took a step forward and “with
his body he pushed [Francisco] outside.” Francisco fell. Margarita was unable to get
him up.5
Defendant went into his bedroom and then came outside. As he passed Margarita
and Francisco, he said “bad words.” Defendant tried to kick Francisco, but it turned out
that he was not close enough to truly connect with his kick. However, the kick was close
enough to cause Francisco’s hair to move.
Francisco called 911 and told the dispatcher his son “threw me out here with a
kick ….” During the call, Francisco said defendant “kicked me” and then said, “He
kicked me again.” Then, Francisco said, “He just left.”
3The stipulation as read by the court did not provide the year of the previous
conviction.
4Defendant and his father are both named Francisco Mendoza. We will refer to
defendant as “defendant” and his father as “Francisco.”
5 Francisco generally testified to the same version of events.
3.
Officer Ramirez testified that on May 20, 2018, she was traveling in a patrol
vehicle while wearing her police officer’s uniform. Ramirez received a call regarding an
assault involving a father and a son. Ramirez was given a description of a possible
subject, including clothing. While patrolling the 700 block of Clinton Street, Ramirez
saw defendant, who matched the description she was given.
Officer Ramirez activated her vehicle’s lights and siren. Defendant turned around,
had a startled look, and turned back around. Ramirez parked her car and opened her
door. Defendant ran away. Ramirez was unable to contact defendant for the rest of that
day, even after establishing a perimeter.
Corporal McDermand testified that he was dispatched to an address on Clinton
Street due to an altercation between Francisco and his son. Francisco told McDermand
that defendant hit and stomped his head. McDermand looked for injuries on Francisco’s
head but found none. Francisco complained of a headache but declined medical
attention.6
Corporal McDermand also spoke with Margarita. Margarita did not mention
defendant trying to kick Francisco.
DISCUSSION
I. The Trial Court did not Abuse its Discretion in Denying Defendant’s Request
to Reduce Felony Assault to a Misdemeanor
Defendant argues the trial court abused its discretion by denying his motion to
reduce felony assault to a misdemeanor under section 17, subdivision (b).
A. Background
The prosecutor opposed defendant’s request to reduce the felony assault charge.
She observed that defendant “was on at least five probations” when he committed the
present offense and had a history involving at least three parole violations. She further
6 At trial, Francisco testified that he did not have a headache.
4.
noted that defendant “took advantage of a vulnerable victim, his sixty-four-year-old
father,” knocking him to the ground such that he had difficulty getting up for several
minutes. Defendant also tried to kick his father in the head.
In contrast, defendant argued that “the simple fact[s] of this case” do not “warrant
a felony conviction.”
The court denied the motion, concluding “the jury’s verdict was consistent with
what the evidence was that was presented at the jury trial ….”
B. Law
Section 17 affords trial courts broad discretion to treat “wobbler” offenses as
misdemeanors. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976–978
(Alvarez).) Among the factors that guide the court’s discretion are “ ‘the nature and
circumstances of the offense, the defendant’s appreciation of and attitude toward the
offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’
[Citations.]” (Id. at p. 978.) Courts must also consider “the defendant’s criminal past
and public safety ….” (Id. at pp. 981–982.) “When appropriate, judges should also
consider the general objectives of sentencing ….” (Id. at p. 978, fn. omitted.) The trial
court has the discretion to choose what weight to place on each factor. (Id. at p. 979.)
On review of a wobbler determination, we apply an “extremely deferential and
restrained standard ….” (Alvarez, supra, 14 Cal.4th at p. 981.) The appellant must
“ ‘clearly show that the sentencing decision was irrational or arbitrary.’ ” (Id. at p. 977.)
Absent such a showing, we presume the trial court acted to achieve legitimate sentencing
objectives and affirm the judgment. (Id. at pp. 977–978.) “ ‘[A] decision will not be
reversed merely because reasonable people might disagree. “An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the judgment of the trial
judge.” [Citations.]’ [Citation.]” (Id. at p. 978.)
5.
C. Analysis
Applying the deferential standard described above, we conclude the trial court’s
decision was not irrational or arbitrary. Defendant knocked down his 64-year-old
father – who was not feeling well – causing him to fall outside onto the ground.
Photographic exhibits show that there is hardscape on the ground immediately outside the
door. The victim’s wife was unable to get him up. Defendant then tried to kick his
father. While “ ‘reasonable people might disagree’ ” (Alvarez, supra, 14 Cal.4th at
p. 978) as to whether this conduct warrants felony treatment, we cannot say the trial
court’s conclusion was irrational or arbitrary.
Moreover, the circumstances of the offense are not the only factor the court was
permitted to consider. Courts must also consider “the defendant’s criminal past and
public safety ….” (Alvarez, supra, 14 Cal.4th at pp. 981–982.) Defendant acknowledges
he was on probation, had a lengthy history of committing misdemeanor crimes, served a
prison term in 2007 for a domestic violence conviction and, while in prison, was
convicted of possessing an inmate-manufactured weapon. However, he argues his record
was not “so egregious” as to justify the court’s denial of his motion. Essentially,
defendant is urging to draw an inference about the egregiousness of his criminal history
contrary to the judgment. We cannot do so on deferential review. Instead, we conclude
that it would not be irrational or arbitrary to deny the wobbler request based on
defendant’s substantial criminal history.
II. Defendant Has Not Established That the Court Prejudicially Erred in
Reciting the Pledge of Allegiance and Noting that Potential Jurors Were
“Welcome” to Join “if” They “Would Like”
Defendant filed a motion in limine requesting that the court not recite the pledge
of allegiance even if the jurors and defendants’ participation was optional. He argued
that the setting rendered even an ostensibly voluntary pledge coercive and
unconstitutional. Defendant called the court’s practice of reciting the pledge, “offensive,
6.
unpatriotic, and in poor taste.” Defendant doubled down on his view that the “Court’s
recitation of the pledge of allegiance is downright unpatriotic.” The court denied
defendant’s motion.
When the prospective jurors were brought into the courtroom before trial, the
court said:
“Good afternoon, everybody. My name is Charles Brehmer. I’m the
judge that is presiding over this criminal case. This case is entitled the
People of the State of California versus Francisco Mendoza.
“In a minute, I’ll have you stand up and take the oath. After you
take the oath, if you would like to remain standing and join me in the
Pledge of Allegiance, you’re welcome to do so.
“Were you called in this afternoon or all day? Who was there all
day? You’re the hardy individuals that made it to the afternoon. Okay, all
right. Let’s have you stand up and raise your right hand, please.”
The clerk then administered the oath to the prospective jurors.
Immediately thereafter, the court said: “If you’d like to remain standing and join
me in the Pledge, you’re welcome to do so.” The court then stated the pledge of
allegiance on the record. On appeal, defendant acknowledges he recited the pledge,
saying the circumstances “forced” him to comply. Thereafter, the court proceeded with
voir dire.
A. Analysis
Defendant objects “to the coercion that he and prospective jurors would feel to
comply with the alleged voluntary recital of the Pledge of Allegiance in the courtroom.”7
Defendant says he was coerced into reciting the pledge “lest he risk the censure of some
of the more ‘patriotic’ or less tolerant jurors ….” Defendant argues that his “joining the
7Defendant has no standing to seek relief based on any alleged violation of the
prospective jurors’ right to be free of coercion.
7.
court in reciting the Pledge of Allegiance was coerced and not voluntary,” and therefore
violated his right to a fair trial.8
Even assuming the court’s optional invitation for the prospective jury pool to
recite the pledge was rendered “coercive” by the context in which it was given, defendant
has failed to establish that his verdict was prejudiced thereby.9 If defendant actually
recited the pledge (even if he did so as a result of coercion), there would be no reason for
a “patriotic or less tolerant juror[]” to draw a negative inference about him.10Defendant
also says that giving potential jurors the option to recite the pledge could give the
prosecution extra information on which to base peremptory challenges. Specifically, a
prosecutor may choose “to exercise a peremptory challenge to any juror who was brave
enough to sit down and not participate in this ersatz exercise in patriotism.” But
defendant has not established that any potential juror in this case actually declined to
participate in the pledge. This is a necessary premise to defendant’s claim of actual
8 Defense counsel raised uncertainty about this contention at oral argument,
observing that the record is not clear as to whether or not defendant actually recited the
Pledge of Allegiance at all. However, it is defendant’s burden as appellant “to show error
and resulting prejudice.” (People v. Coley (1997) 52 Cal.App.4th 964, 972, italics
added.) For the reasons explained herein, the alleged error is not prejudicial if defendant
indeed recited the pledge. Thus, a necessary premise to defendant’s claim of prejudice is
that he did not recite the pledge, and the jurors drew a negative inference therefrom.
Defendant cites to nothing in the record to support that necessary premise. In other
words, ambiguity in the record does not aid defendant.
9Defendant states in conclusory fashion that the error was structural and cites to
two Batson/Wheeler cases to support the claim. Such citations are inapposite.
To the extent defendant argues that the court’s recitation of the pledge after
expressly noting that participation is voluntary “ ‘damage[ed] the integrity of the
tribunal,’ ” we simply disagree.
10 Defendant says the coercive recitation of the pledge violated his right to a fair
trial but supports that claim with three citations to school prayer/meditation cases. Here,
however, the question is whether any alleged violation of defendant’s rights prejudiced
the criminal verdict/trial. Even if, arguendo, the court unconstitutionally compelled
defendant’s speech in a manner analogous to coercive school prayer, it has not been
shown that any such violation was prejudicial to defendant’s criminal verdict.
8.
prejudice, because if all potential jurors participated in the pledge, the prosecutor would
have no extra information singling out any potential jurors for peremptory challenge. In
other words, if all potential jurors participated in the pledge, there was no prejudice to the
voir dire process. Defendant has failed to carry his burden of establishing prejudicial
error.
DISPOSITION
The judgment is affirmed.
POOCHIGIAN, J.
WE CONCUR:
LEVY, Acting P.J.
SNAUFFER, J.
9.