Filed 8/26/20 P. v. Mendoza CA1/4

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR


 THE PEOPLE,
           Plaintiff and Respondent,                                    A158308

 v.                                                                     (Contra Costa County
 RICKY ANGELO MENDOZA,                                                  Super. Ct. No. 51209295)
           Defendant and Appellant.


         In 2013, a jury convicted Ricky Mendoza of first-degree murder. (Pen.
Code, § 187; statutory references are to this code.) The jury also found a gang
murder special circumstance was true (§ 190.2, subd. (a)(22)) and that
Mendoza personally and intentionally discharged a firearm causing death
(§ 12022.53, subd. (d)). Mendoza was sentenced to life in prison without the
possibility of parole (LWOP) for the special circumstance murder and an
additional term of 25 years to life for the firearm enhancement. This court
affirmed the judgment against Mendoza in 2017. (People v. Mendoza (May
22, 2017, Al39901) [nonpub. opn.] (Mendoza I).)
         Before our decision in Mendoza I became final, the Legislature enacted
Senate Bill 620, which gave trial courts discretion to strike or dismiss section
12022.53 firearm enhancements. (§ 12022.53, subd. (h), as amended by
Stats. 2017, § 2.) Therefore, this case was remanded for the trial court to


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consider whether to strike Mendoza’s firearm enhancement. (People v.
Mendoza (Oct. 26, 2018, A139901) [nonpub. opn.] (Mendoza II).) The present
appeal is from an August 2019 order denying Mendoza’s motion to strike his
firearm enhancement and his LWOP sentence. We affirm.
                       RELEVANT BACKGROUND
I. Mendoza’s Murder Conviction and Sentence1
      On August 20, 2011, Martin Navarro was shot and killed while
attending a party in the garage of an Antioch home where two young men
were celebrating their 18th birthday. (Mendoza I, at pp. 1, 3–5.) In 2012,
Mendoza and several co-defendants were charged with Navarro’s murder and
the attempted murder of another person at the party. The case went to trial
early the following year and the jury deadlocked. (Mendoza I, at pp. 11–12.)
A few months later, the People filed an amended information charging
Mendoza and a man named Moreno with Navarro’s murder. (Id. at p. 12.)
      At a jury trial in 2013, the prosecution presented evidence that
Mendoza and Moreno went to the Antioch birthday party with a group of
friends. (Mendoza I, at p. 2.) The men in their group were members of the
Norteño criminal street gang. (Id. at p. 3.) A woman in their group saw
Navarro, who was associated with the Sureño street gang, and complained to
her friends that Navarro had snitched on a Norteño gang member. Moreno
approached Navarro and punched him twice in the face, attempting to start a


      1  We grant Mendoza’s request for judicial notice of our decision in
Mendoza I and take notice of Mendoza II pursuant to our own motion.
Mendoza also requests judicial notice of the record on appeal in Mendoza I
and of court documents concerning his former co-defendants. We deny these
requests because the facts supporting Mendoza’s murder conviction are not
subject to dispute in this appeal, and Mendoza fails to articulate a valid
theory of relevancy. (See People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6
[irrelevant material not the proper subject of judicial notice].)

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fight. (Id. at pp. 3–4.) Navarro tried to leave, but Mendoza shot him twice in
the stomach and two more times as Navarro turned away. (Id. at p. 5.)
      The jury found Mendoza guilty of first-degree murder and that multiple
enhancement allegations were true, including gang murder enhancements
and firearm use enhancements. The trial court imposed a sentence of life
without the possibility of parole, with a consecutive term of 25 years to life.
(Mendoza I, at p. 12.)
      Mendoza appealed the judgment on five grounds: erroneous admission
of uncorroborated accomplice testimony; insufficiency of the evidence;
unconstitutional restriction on cross-examination; prosecutor misconduct;
and cumulative error. (Mendoza I, at pp. 13–54.) Mendoza did not challenge
any aspect of his sentence. In Mendoza I, this court rejected Mendoza’s
claims and affirmed the judgment in its entirety.
      Before our decision in Mendoza I became final, we granted Mendoza’s
request to recall the remittitur so that he could benefit from a recent
amendment to section 12022.53 subdivision (h), which gives trial courts
discretion to strike firearm enhancements that were previously mandated by
this statute. (§ 12022.53, subd. (h); see People v. McDaniels (2018) 22
Cal.App.5th 420, 424–425 [amended section 12022.53 applies retroactively to
cases not yet final on appeal].) In October 2018, we filed a brief opinion re-
affirming our decision in Mendoza I, except that instead of affirming the
judgment in its entirety we remanded Mendoza’s case for the limited purpose
of allowing the trial court to consider whether to strike Mendoza’s firearm
enhancement. (Mendoza II.)
II. The Present Appeal
      In July 2019, Mendoza filed a motion to strike his firearm
enhancement in the interests of justice. The motion characterized Navarro’s



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murder as the tragic consequence of a gang lifestyle and presented Mendoza
to the court as a changed man, who has accepted responsibility for his poor
choices and manifested a desire to learn, grow and become a better person.
By separate argument, Mendoza asked the court to reconsider his sentence
for the murder conviction. Mendoza argued his LWOP sentence constitutes
cruel and unusual punishment and violates equal protection because he was
only 19 when Navarro was murdered, and the same characteristics of youth
that make LWOP sentences unconstitutional for juveniles continue past the
age of 18 into a person’s early 20’s.2
      Mendoza submitted 25 exhibits in support of his motion, which
included excerpts from prison records, letters from supporters, and letters
Mendoza wrote while in prison. In a July 17, 2018 letter, Mendoza shared
his story with a church youth group. He talked about becoming involved in
gangs and criminal activity when he was 12 or 13 and stated that he was only
18 when he was accused of a murder he did not commit. Mendoza told the
youth group that he was convicted of this murder because he kept silent in
order to protect a friend and avoid being a snitch. Mendoza explained that
after he was sent to prison, he dropped out of the gang and changed his life.
And he expressed gratitude for the community support he has received while
pursuing his appeal.
      Another undated letter from Mendoza was addressed to the judge who
presided at his trial and would decide his motion for resentencing. Mendoza
stated that he was 18 when he was arrested for murder and only 20 when he
was sentenced. Since then, he has dropped out of the gang and tried to better



      2 The motion to strike Mendoza’s firearm enhancement stated
incorrectly that he was 19 when Navarro was killed. Mendoza was 18 years
and 8 months old when the murder occurred.

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himself. Mendoza stated that he would not make excuses for his prior
actions, including some setbacks in prison, but he asked the court to consider
his commitment to changing his life and helping others to “stay out of the
life” that he once lived.
      On August 1, 2019, the court held a hearing on the resentencing
motion. Mendoza waived his right to be present at the hearing and his
counsel advised the court that Mendoza wanted the matter decided in his
absence. The court stated that it had considered Mendoza’s motion and
supporting evidence, reviewed the court’s notes from the jury trial, and
considered the appellate decision in Mendoza I. The People did not file a
response to Mendoza’s motion but opposed it at the hearing. The court
invited argument from both sides and asked questions before making its
ruling.
      Defense counsel spent considerable time arguing that the trial evidence
did not establish that Mendoza shot Navarro. Beyond that, counsel argued
that Mendoza is a beautiful and thoughtful person who has been victimized
by gang members to whom he “had ostensibly sworn allegiance.” Counsel
described ways that Mendoza has bettered himself through education and
programs, has helped others, and has earned the trust of his many
supporters.
      Defense counsel stated that his argument for striking the firearm
enhancement “dovetails” with Mendoza’s request to reconsider his LWOP
sentence because recently enacted law prohibits persons 18 years or younger
from receiving LWOP sentences. Counsel stated Mendoza was 19 when the
murder occurred, but he argued that Mendoza “was youthful, and certainly
youthful in the understanding of current science and neurology,” which shows
that the prefrontal cortex is not fully developed until the age of 25.



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      The People objected to Mendoza’s attempt to undermine the jury’s
verdict, which establishes that Mendoza shot and killed Navarro. Disputing
that Mendoza has changed, the People argued that Mendoza’s commitment to
a life of crime is reflected in his tattoos, which state “Can’t Stop Won’t Stop,”
and “Real Shooter, S.K., Scrap Killer.” The People also produced evidence of
a pending criminal complaint charging Mendoza with committing felony
assault while in prison. According to the district attorney, Mendoza was
being prosecuted “for savagely beating another prison inmate with four other
people, including other convicted murderers.”
      The People argued further that Mendoza’s own exhibits establish that
he is not entitled to discretionary relief. First, prison records reflect that
Mendoza has incurred multiple disciplinary actions. Second, Mendoza’s self-
serving letters make no mention of the murder victim, show neither reflection
nor insight, and accept no responsibility for what happened at the 2011
birthday party. Contending that Mendoza has focused only on how the
incident impacted him, the district attorney pointed out that his letters do
not even acknowledge a human life was lost.
      The trial court asked defense counsel about Mendoza’s discipline record
while in prison. Aside from the pending assault charge, Mendoza had six
disciplinary actions between 2015 and 2017 that resulted in the loss of
conduct credits. Defense counsel explained that these records were produced
in support of the motion because Mendoza did not want to hide anything from
the court. Counsel argued that Mendoza had been involved in prison conflicts
because he dropped out of the gang and lost their protection. Counsel
suggested that Mendoza was motivated by the spiritual teachings of Gandhi
to denounce cowardice, and he believed that reacting to a situation with
violence was preferable to cowardice.



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      Defense counsel also acknowledged that the police report pertaining to
the pending assault charge suggested that when a fight broke out Mendoza
took the opportunity to “get his licks in on somebody, or everybody.” But
counsel disputed this suggestion, arguing that Mendoza’s true character was
reflected in an exhibit that described another prison fight in which Mendoza
had intervened in order to protect a guard. Counsel argued that Mendoza
was a man of faith and “indomitable will,” who preferred nonviolence, but
when presented with the choice of being a coward or defending himself, he
was prepared to defend himself.
      After the matter was submitted, the court framed its inquiry as
whether Mendoza should be “deemed” to be “outside the spirit” of the firearm
enhancement law. To make this determination, the court had to consider the
nature and circumstances of the current offense, Mendoza’s prior record,
including his juvenile record, and Mendoza’s background, character and
prospects. Elaborating further, the court stated that “many, many factors”
were potentially relevant.
      Regarding the current offense, the court would not “debate” whether
Mendoza was the shooter or was guilty of murder. The court explained that
it had heard the evidence firsthand at trial and that the jury also heard all
the evidence before returning its verdict. In considering the current offense,
the court also observed that there were aggravating circumstances, including
the fact that the victim was attempting to retreat when he was shot, and
there were no mitigating circumstances.
      In considering Mendoza’s background, the court took account of
Mendoza’s substantial juvenile record, which includes a history of violence
and gang activity, and some probation violations. The court noted that when
Mendoza’s wardship was terminated, the probation officer had been



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convinced that Mendoza understood the negative impact of his past
associations, but eight months later he participated in a gang murder.
      In considering Mendoza’s personal circumstances, the court took
account of Mendoza’s age, stating that he was 19 when the offense was
committed, which was too young to be involved in such activity. The court
also considered the letters Mendoza submitted, including his letter to the
court. It observed that Mendoza grew up without support from his father and
may have felt he had to be the man of the family when he was very young.
There was also evidence that Mendoza’s life was not “impossible” or “bad,”
and that he had been loved by his family. But the court did not “make light
of the fact that [Mendoza’s] life was challenging as a youth.”
      As for conduct since incarceration, Mendoza had made a serious effort
to better himself. However, his disciplinary record was concerning. The
police report for the pending assault charge did not support the defense claim
that Mendoza acted in self-defense or for survival, and the court was troubled
by parallels between this recent incident and Mr. Navarro’s murder. The
court was “very sorry to see this new allegation,” especially when Mendoza
had the support and love of many people.
      Ultimately, the court concluded Mendoza was not entitled to relief from
the firearm enhancement. As for the request to reconsider Mendoza’s LWOP
sentence, the court found it did not have authority to “strike” the sentence,
but even if it did have such discretion, it would not exercise it in this case
given Mendoza’s history and the nature of his offense.
                                 DISCUSSION
I. The Firearm Enhancement
      As a preliminary matter, we note that Mendoza I does not contain a
comprehensive discussion of Mendoza’s sentence because he did not claim



                                        8
any sentencing error had occurred. The minute order from the original
sentencing hearing, which is in our appellate record, indicates that the jury
made express findings that Mendoza personally used a firearm (§ 12022.53,
subd. (b)), personally and intentionally discharged a firearm (§ 12022.53,
subd. (c)), and personally and intentionally discharged a firearm causing
death (§ 12022.53, subd. (d)). The jury also found true an allegation that
Mendoza was an active participant in a criminal street gang when the
principal who committed Navarro’s murder (i.e. Mendoza himself) personally
used a firearm in the three ways specified above (§ 12022.53, subd. (e)(1)). In
light of these findings, the court imposed a consecutive term of 25 years to life
under section 12022.53, subdivision (e)(1), thus enhancing Mendoza’s murder
sentence to reflect the fact that he personally and intentionally used a
firearm causing death and that he did so as an active participant in a
criminal street gang.
      With his present appeal, Mendoza contends that the resentencing court
erred by declining to strike this firearm enhancement, arguing that the
Legislature did not intend for the enhancement to apply under the
circumstances presented here. We disagree.
      Section 12022.53, subdivision (h) provides that “[t]he court may, in the
interest of justice pursuant to Section 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to be imposed by this
section.” A ruling under this provision is reviewed for abuse of discretion.
(People v. Pearson (2019) 38 Cal.App.5th 112, 116.) Two principles guide our
review. “ ‘First, “ ‘[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] . . . .’ ” Second, a “ ‘decision will not be reversed merely because
reasonable people might disagree. “An appellate tribunal is neither



                                         9
authorized nor warranted in substituting its judgment for the judgment of
the trial judge.” ’ ” [Citation.] Taken together, these precepts establish that
a trial court does not abuse its discretion unless its decision is so irrational or
arbitrary that no reasonable person could agree with it.’ ” (Ibid.)
      Here, the trial court’s ruling was neither arbitrary nor irrational.
According to the jury’s verdict, Mendoza used a firearm to commit an
unprovoked murder at a crowded birthday party, endangering the lives of
many young people for the sole purpose of advancing the criminal agenda of
his gang. Although Mendoza was only 18 when he committed murder, he had
accumulated a substantial juvenile record. Moreover, even after Mendoza
was incarcerated for his current offense, he continued to incur disciplinary
actions including, at the time of the resentencing hearing, a pending
complaint for assault causing great bodily injury. The court concluded that
these circumstances outweigh evidence that Mendoza has taken steps to
improve himself and make a positive impact on others, and we cannot say
this decision was arbitrary or irrational.
      Mendoza argues the trial court abused its discretion by failing to
consider several sentencing factors outlined in the California Rules of Court,
including whether the enhancement is necessary to punish Mendoza, deter
future criminal activity or protect public safety. (See Cal. Rules of Court,
rule 4.410.) A sentencing court is required to consider all relevant factors
enumerated in the California rules of court, but on appeal such factors are
“deemed to have been considered unless the record affirmatively reflects
otherwise.” (Cal. Rules of Court, rule 4.409; see also People v. Pearson, supra,
38 Cal.App.5th at p. 118.) Nothing in this record indicates the trial court
failed to consider any relevant factor. To the contrary, the court was careful




                                        10
to explain that it reviewed all the evidence and considered all of the factors
relevant to Mendoza’s motion.
      Mendoza contends the trial court abused its discretion because it failed
to consider whether imposing the 25 year to life sentence enhancement is
within the “spirit” of Senate Bill 620. According to this argument, a
sentencing decision under section 12022.53 is comparable to a sentencing
decision under the three strikes law, which requires the court to consider
whether a defendant’s circumstances indicate that he or she should be
deemed to fall outside the spirit of the statutory sentencing scheme. (See e.g.
People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) Purporting to
extend the reasoning of these three strike cases, Mendoza argues that the
trial court abused its discretion by failing to consider that the spirit behind
Senate Bill 620 was to reduce long sentence enhancements because they are
expensive and perpetuate racial disparity in prisons.3
      Mendoza’s legal analysis is flawed. Under the reasoning of Williams,
the sentencing court should consider whether a defendant falls within the
spirit of a sentence enhancement by looking to the purpose of the statutory
scheme. Our Supreme Court has found that the intent behind section
12022.53 is to implement the Legislature’s finding “ ‘that substantially longer
prison sentences must be imposed on felons who use firearms in the
commission of their crimes, in order to protect our citizens and to deter


      3We grant Mendoza’s request for judicial notice of a 2017 report
prepared by the Senate Committee on Public Safety, addressing proposed
amendments to section 12022.25 and section 12022.53.
      Mendoza also requests judicial notice of an excerpt from a Senate
Appropriations Committee report regarding section 3051, and an excerpt
from the Legislative Counsel’s Digest introducing Senate Bill 889, which
proposes expanding juvenile wardship jurisdiction. Both requests are denied
because this material is not relevant to Mendoza’s appeal.

                                       11
violent crime.’ ” (People v. Garcia (2002) 28 Cal.4th 1166, 1172.) This
purpose was elucidated by Senate Bill No. 620, which “has the laudatory
purpose of giving trial courts the discretion to strike firearm enhancements,
which often comprise the bulk of a sentence, when doing so is in the interest
of justice.” (People v. Fox (2019) 34 Cal.App.5th 1124, 1139, review granted
July 31, 2019, S256298.) We find no authority for requiring a court
exercising its discretion under section 12022.53 to address in the sentencing
colloquy broad social policies, such as the financial consequences or racial
justice implications of long prison sentences.
      In this case, the trial court explicitly stated that the purpose of its
inquiry was to determine whether Mendoza falls outside the spirit of the
firearm enhancement law. It went on to provide a detailed explanation for its
ruling that Mendoza does not fall outside the spirit of that law. Mendoza
fails to establish that the ruling was an abuse of discretion.
II. Mendoza’s LWOP Sentence
      Mendoza contends that his LWOP sentence violates federal and state
prohibitions against cruel and unusual punishment. (U.S. Const., 8th
Amend.; Cal. Const., art. I, § 17.) The resentencing court found that it lacked
authority to strike Mendoza’s LWOP sentence. We agree because the record
shows that this issue was not properly before the court at the remand
proceedings. Although the appellate briefs overlook this fact, the parties
have addressed this dispositive issue in supplemental letter briefs.
      When Mendoza’s case was remanded, “ ‘the terms of the remittitur
define[d] the trial court’s jurisdiction to act.’ ” (People v. Dutra (2006) 145
Cal.App.4th 1359, 1367.) Mendoza’s case was remanded for the sole purpose
of giving the trial court the opportunity to exercise its discretion to strike the
firearm enhancement in a decision that explicitly affirmed all other aspects of



                                        12
the judgment (including the LWOP sentence). Since the trial court was
bound by the terms of the remittitur, it lacked authority to entertain
Mendoza’s request to address an issue that was outside the scope of the
remittitur.
      Mendoza argues that the cruel and unusual punishment issue was
squarely raised and argued at the resentencing hearing, but he fails to cite
any statutory ground or case law support for unilaterally expanding the scope
of the remand order. Mendoza filed his motion to dismiss his firearm
enhancement under section 12022.53, subd. (h) and section 1385. Neither
statute authorized the trial court to adjudicate Mendoza’s untimely challenge
to his LWOP sentence. Absent a petition for habeas corpus alleging
ineffective assistance of counsel, or some comparable procedural mechanism,
we find no basis for Mendoza’s view that the trial court had authority to
reconsider the LWOP sentence.
      At the resentencing hearing, Mendoza’s counsel intimated that
Mendoza could challenge his LWOP sentence for the first time at that
hearing because it dovetailed with the trial court’s new discretion to strike
the section 12202.53 firearm enhancement. We disagree that a challenge to
Mendoza’s LWOP sentence was properly attached to the court’s
reconsideration of the firearm enhancement. When Mendoza was sentenced
in August 2013, the firearm enhancement was mandatory, but Mendoza’s
LWOP sentence was imposed for a different reason under a different statute.
At the original sentencing, the court did have authority to decide whether
Mendoza’s LWOP sentence for a special circumstance first degree murder




                                       13
constituted cruel and unusual punishment. However, Mendoza did not make
that claim.4
      In his supplemental brief, Mendoza argues that this court should
entertain his cruel and unusual punishment claim for three reasons: the
remand order does not explicitly preclude him from raising this claim; the
resentencing court did reach the merits of this claim; and, this court should
exercise its discretion to address the constitutionality of Mendoza’s sentence,
in the interests of justice and judicial economy and to forestall a future
ineffective assistance of counsel claim. These arguments are all unsound.
      The remand order is explicit and unambiguous; it authorizes the
resentencing court to consider whether to strike a firearm enhancement.
(Mendoza II.) It does not give the resentencing court jurisdiction to consider
any other claim. Furthermore, the resentencing court did not decide the
merits of Mendoza’s LWOP challenge by speculating about what it would do
if the matter had been properly raised. More fundamentally, we reject
Mendoza’s false premise that the terms of a remittitur can be expanded by
deciding an issue that is beyond its scope. Finally, the interests of justice
would not be served by permitting Mendoza to appeal an issue that the trial
court did not have jurisdiction to entertain.
III. Mendoza’s Right to Effective Assistance of Counsel
      Finally, Mendoza contends his right to the effective assistance of
counsel was violated during the resentencing proceedings because his counsel




      4 Mendoza’s LWOP challenge was not only outside the scope of the
remand order, it was also forfeited. Mendoza failed to object at the original
sentencing hearing and/or to pursue in Mendoza I the argument that his
sentence constitutes cruel and unusual punishment. (See People v. Speight
(2014) 227 Cal.App.4th 1229, 1247; In re Harris (1993) 5 Cal.4th 813, 834.)

                                       14
informed the court that Mendoza was 19 at the time of the murder, when in
fact he was only 18.
      “A criminal defendant is guaranteed the right to the assistance of
counsel by both the state and federal Constitutions. [Citations.] ‘Construed
in light of its purpose, the right entitles the defendant not to some bare
assistance but rather to effective assistance.’ ” (People v. Wharton (1991) 53
Cal.3d 522, 575, italics omitted.) “ ‘ “In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was
‘deficient’ because his ‘representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.’ [Citations.]
Second, he must also show prejudice flowing from counsel’s performance or
lack thereof.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436.) “A defendant
must prove prejudice that is a ‘ “demonstrable reality,” not simply
speculation.’ [Citations.] Prejudice requires ‘a reasonable probability that a
more favorable outcome would have resulted . . ., i.e., a probability sufficient
to undermine confidence in the outcome.’ ” (People v. Fairbank (1997) 16
Cal.4th 1223, 1241.)
      When considering an ineffective assistance of counsel claim, the
appellate court “ ‘need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies.’ ” (People v. Fairbank, supra, 16 Cal.4th at
p. 1241, quoting Strickland v. Washington (1984) 466 U.S. 668, 697.) If an
ineffective assistance claim is easier to resolve on the ground of lack of
sufficient prejudice, we have been instructed to follow that course. (Ibid.)
      Here, Mendoza fails to demonstrate prejudice but simply posits that his
trial counsel’s failure “to adequately investigate and correctly inform the trial
court of Mendoza’s young age undermines confidence in the judgment.”



                                       15
However, the record shows that the court was repeatedly advised of
Mendoza’s young age and that there was never any confusion about the fact
that Mendoza was not a juvenile but a very young adult when he committed
the murder. It is not reasonably likely that the outcome of these proceedings
would have been different if Mendoza’s counsel had stated that Mendoza was
18 rather than 19 when the crime occurred.
                              DISPOSITION
     The judgment is affirmed.




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                                   _________________________
                                   TUCHER, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
STREETER, J.




People v. Mendoza (A158308)




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