Filed 11/13/15 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F068930
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12300595)
                   v.

TORIBIO ALEJO MENDOZA,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
         David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Poochigian, J. and Peña, J.
       Toribio Alejo Mendoza was convicted of numerous crimes as the result of two
separate incidents that occurred on the same day. The victims were Mendoza’s sister’s
landlord and Mendoza’s mother. In addition, numerous enhancements were found to be
true, including firearm enhancements and four prior convictions that constituted strikes
within the meaning of Penal Code section 667, subdivisions (b)-(i).1 The third strike
sentence will likely result in Mendoza’s incarceration for the rest of his life.
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
asserting he did not identify any arguable issues in this appeal. By letter dated
September 24, 2014, we invited Mendoza to inform the court of any issues he wished us
to address. Mendoza did not respond to our letter.
       After thoroughly reviewing the record, we conclude there are no arguable issues in
this case and affirm the judgment.
                    FACUTAL AND PROCEDURAL SUMMARY
The Information
       The information charged Mendoza with false imprisonment (§ 236, count 1), two
counts of making a criminal threat (§ 422, counts 2 and 5), two counts of possession of a
firearm by a felon (§ 29800, subd. (a)(1), counts 3 and 8), kidnapping by force or fear
(§ 207, subd. (a), count 4), assault with a firearm (§ 245, subd. (a)(2), count 6), and
attempted second degree robbery (§§ 211, 664, count 7). The information also alleged
the following enhancements: (1) counts 1, 2, 5, and 6 alleged Mendoza personally used a
firearm within the meaning of section 12022.5, subdivision (a); (2) counts 4 and 7 alleged
Mendoza personally used a firearm within the meaning of section 12022.53, subdivision
(b); (3) as to all counts, Mendoza had four prior convictions which constituted strikes
within the meaning of section 667, subdivisions (b)-(i); and (4) Mendoza had served three
prior prison terms within the meaning of section 667.5, subdivision (b).

1      All statutory references are to the Penal Code unless otherwise stated.


                                              2.
The Evidence
      Reyes Salas Barrientos is in charge of a residential property in Mendota. The
property has two houses on it. On the date in question, he had received a call from the
tenant of the back house, Nayomy Mendoza, asking him to come by and pick up the
rent.2 Barrientos drove to the house with his wife and children.
      When Barrientos left his vehicle to approach the house, he saw Mendoza, who
signaled to Barrientos to stop. Barrientos understood the signal to mean that he should
wait where he was for the money. Barrientos waited for a few minutes, and when no one
came he walked towards the front of the house. He then spotted Mendoza standing next
to a vehicle with a woman inside the vehicle. Barrientos approached the vehicle and
asked Mendoza for Nayomy. Mendoza did not say where Nayomy was, so Barrientos
turned to leave. Mendoza ordered him to stop and pulled Barrientos towards the car.
When Barrientos turned, Mendoza displayed a gun and ordered Barrientos over to the
vehicle. Mendoza said he was going to kill Barrientos and the woman in the car.
Mendoza repeatedly asked Barrientos if he knew the woman in the vehicle, to which
Barrientos replied that he did not. Mendoza threatened to take Barrientos’s vehicle after
he killed the woman and Barrientos.
      At this time another vehicle approached the house, stopped, and a person got out
and knocked on Nayomy’s door. Apparently Nayomy answered the door, and when she
did she saw Barrientos’s vehicle. Nayomy then came around the house and approached
Barrientos and Mendoza. Mendoza put the gun back in his waistband. Nayomy spoke to
Mendoza in English, so Barrientos did not know what was said. Nayomy had Barrientos
follow her to her house so she could pay the rent. Barrientos told Nayomy about
Mendoza’s threats. Barrientos then left the property and drove home.


2      Nayomy Mendoza is Mendoza’s sister. We will refer to her by her first name to
avoid confusion. No disrespect is intended.


                                            3.
       As Barrientos and his family began unloading the vehicle, Barrientos saw
Mendoza and the girl walking towards his house. Barrientos ordered his wife and
children into the house and then went to his bedroom to retrieve his pistol. When
Barrientos exited his house, he did not see Mendoza, so he got into his vehicle to find a
police officer.
       Perla Diaz, who lives directly across the street from Barrientos, testified that on
the day in question she saw a man walk by the house across the street from her house. As
he was walking, he pulled a gun out of his waistband and pointed it at a girl. Diaz was
not able to identify the man with the gun, either to the police or at trial.
       Nayomy testified that she lived in the house in question, and Mendoza was living
with her at the time. On the day in question she called Barrientos to come by and pick up
the rent. A short while later she heard people talking by an abandoned van. Barrientos
was telling her brother and his friend, Anna, to get out of the van. She paid Barrientos
money for rent, but did not recall how much she paid him. She did not see a gun in her
brother’s hands that day, nor did she see him leave after she paid Barrientos the rent.
Nayomy admitted she told the police her brother had a gun that day, but she was lying.
She lied because she was upset with her brother.
       Juanita Chavez, Mendoza’s mother, was called as a witness for the prosecution.
Chavez could not recall ever talking to a police officer about Mendoza threatening her
with a gun if she did not give him money.
       Martha Rodriguez, a detective corporal with the Mendota Police Department,
interviewed Nayomy a few days after the incident between Mendoza and Barrientos.
Nayomy stated she had called Barrientos to come pick up a partial payment of her rent.
When Nayomy came out of the house, Mendoza was arguing with Barrientos. Nayomy
saw a black handgun in Mendoza’s waistband. After Barrientos left, Mendoza punched
and pushed his companion (Annie Meza). Mendoza left the property because he knew
Nayomy was going to call the police.

                                               4.
      Rodriguez met with Chavez after meeting with Nayomy. Chavez told Rodriguez
that two days prior, the same day as the incident between Mendoza and Barrientos, she
was resting in her bedroom when Mendoza came in demanding $5,000. Mendoza
pointed a black handgun at Chavez, continued to demand money, and threatened to kill
Chavez and her husband. At some point, Mendoza told her she could sell or pawn her
truck to raise money for him. Chavez, Mendoza, and Annie Meza got into the truck and
drove to the home of a person who takes items in exchange for money. Chavez and Meza
went to the door of the home. The lady was not home.
      The three then drove to some water pumps located next to a park. During the
drive to the water pumps, Mendoza repeatedly struck Chavez on the legs. At some point
Mendoza again pointed the gun at Chavez and struck her in the face.
      The three then returned to the house of the lady who buys things, but she was still
not at home. Mendoza then drove them back out to the water pumps. Mendoza said he
was going to kill Chavez. Mendoza pulled Chavez out of the vehicle, put her on her
knees, and told her to beg for his forgiveness. Mendoza then spit on her face. At some
point Mendoza attempted to choke Chavez. Mendoza finally stated he was hungry, so
Chavez convinced him to drive back to her house so she could feed him. On the way
back, Mendoza noted the vehicle was low on gas. Chavez told him they could go home
and she would get $100 from her husband to buy gas. When they arrived at Chavez’s
home, Chavez and Meza went inside and Mendoza remained in the vehicle. Chavez told
her husband to open the rear sliding door, and when he did so she pushed Meza out of the
way and ran out the door. Chavez ran to another home, where she called the emergency
operator.




                                           5.
       Mendota Police Officer Hector Lizarraga3 responded to Chavez’s call to the
emergency operator. Chavez related essentially the same story as she told Rodriguez a
few days later.
       When Mendoza was arrested a few days later in Fresno, he had a semiautomatic
handgun in his possession. When questioned, Mendoza admitted he had the firearm in
his possession, and stated he had it for protection because he was not from the area where
he was arrested.
The Verdict and Sentencing
       The jury found Mendoza guilty of each charged crime and found each firearm
enhancement true. The trial court, in a bifurcated proceeding, found each prior
conviction and prior prison allegation true. It then sentenced Mendoza to (1) a
determinate term of 13 years, followed by a consecutive indeterminate term of 25 years
to life on count 4; (2) a determinate term of 10 years, followed by a consecutive term of
25 years to life on count 2; (3) a determinate term of 10 years, followed by a consecutive
term of 25 years to life on count 6; (4) a term of six years on count 3; and (5) a term of 16
months (one-third the midterm) on count 8. The sentence on counts 1, 5, and 7 were
imposed and stayed pursuant to section 654. The sentences on counts 2, 4, 6, and 8 were
imposed consecutively. The sentence on count 3 was imposed concurrently. Mendoza’s
total sentence was a determinate term of 34 years four months, followed by an
indeterminate term of 75 years to life.
                                      DISCUSSION
       As stated in the introduction, appellate counsel filed a brief asserting he did not
identify any arguable issues in the case after reviewing the record. We have thoroughly
reviewed the record and agree with appellate counsel’s conclusion.



3      At the time of trial, Lizarraga worked for the Imperial Police Department.


                                             6.
       The evidence supporting the verdict was not only substantial, it was
overwhelming. While Chavez recanted her statement to the police, this testimony was
highly suspect considering Mendoza was her son and she testified she would do anything
for him. Significant parts of Barrientos’s testimony were confirmed by Diaz and
Nayomy. The evidentiary issues were not complex, the trial court’s ruling appropriate,
and Mendoza was ably represented during the trial. The jury instructions were
straightforward, and nothing inappropriate occurred during closing argument. The trial
court acted well within its discretion in sentencing, and fully explained its reasoning for
imposing an aggravated sentence where discretion was exercised. On this issue, we note
that Mendoza’s extensive criminal history and the facts of this crime justified the
sentencing choices made by the trial court.
       We also note the trial court denied defense counsel’s request for a continuance of
the sentencing hearing so he could file a motion for a new trial based on newly
discovered evidence. However, the trial court’s action occurred only after Mendoza’s
trial counsel and another attorney were relieved from representing Mendoza because of
asserted conflicts. Indeed, Mendoza argued a Marsden4 motion shortly before sentencing
in an attempt to obtain yet another attorney. The trial court’s ruling occurred almost eight
months after the jury returned its verdict, and was well within its discretion.
                                      DISPOSITION
       The judgment is affirmed.




4      People v. Marsden (1970) 2 Cal.3d 118.


                                              7.
