Filed 4/28/16 P. v. Mendez CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B263199

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA041131)
         v.

FRANKIE TOMMY MENDEZ,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Eric C. Taylor, Judge. Affirmed.
         Frankie Tommy Mendez, in pro. per., and Allison H. Ting, under appointment by
the Court of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.


                                            _____________________
       In November 1988 Frankie Tommy Mendez pleaded guilty to three counts of
attempted murder involving three separate victims and admitted firearm-use and great
bodily injury enhancements. He was sentenced to an aggregate state prison term of
11 years eight months. Mendez was released on parole in March 1995 and discharged
from parole on June 3, 1998.
       In September 1999 a jury found Mendez guilty on one count each of possession
for sale of methamphetamine, possession of methamphetamine with a firearm and
possession of a firearm by a felon. The trial court found true the special allegations that
Mendez had suffered three prior serious or violent felony convictions within the meaning
of the three strikes law. Mendez was originally sentenced on each of the three counts to
an indeterminate state prison term of 25 years to life, to be served concurrently. On
Mendez’s direct appeal this court modified the judgment to stay punishment on the
conviction for possessing methamphetamine with a firearm pursuant to Penal Code
section 654 but otherwise affirmed the convictions and judgment. (People v. Mendez
(Nov. 14, 2000, B138160) [nonpub. opn.].)1
       Mendez filed a petition for writ of habeas corpus 13 years later, challenging the
restitution order made at trial and arguing that a defendant cannot suffer more than one
strike in a single case. The trial court (Judge Eric C. Taylor) summarily denied the
petition on July 15, 2013. This court denied Mendez’s petition raising the same issues on
September 26, 2013.
       On November 14, 2013 Mendez filed a “Notice of Appeal under Penal Code
§ 1170.126,” which the trial court (Judge William C. Ryan) deemed a petition for recall
of sentence under Proposition 36 (Pen. Code, § 1170.126). In denying the petition the
court found one of Mendez’s prior convictions was for attempted murder, making him
ineligible for resentencing under Proposition 36. (Pen. Code, §§ 1170.126, subd. (e)(3),
667, subd. (e)(2)(C)(iv)(IV).)


1
       A petition for writ of habeas corpus, filed concurrently with Mendez’s direct
appeal, was summarily denied.

                                             2
       On November 18, 2014 Mendez filed yet another petition for writ of habeas
corpus in the trial court, which Judge Taylor summarily denied, stating the issues Mendez
raised had been previously considered and decided by the trial court and on appeal.
       Thereafter, Mendez filed an ex parte motion “for reconsideration; motion to take
judicial notice; motion for request for resentencing; petition for recall of sentence
pursuant to Supreme Court of California Case People v. Vargas, Case Number S203744
pursuant to Penal Code sections 667(B)(I), 1170.12.”2 On February 27, 2015
Judge Taylor denied the motion on the ground “[t]here are no new facts [or] law
presented. Further, a motion for reconsideration is not an appropriate motion on this
1999 conviction.”
       In his notice of appeal, filed April 1, 2015, Mendez challenges the trial court’s
order of February 26, [sic] 2015 “pursuant to Penal Code section[s] 1170.18 (A) and (F),”
a reference to Penal Code provisions added by Proposition 47, and requests that we take
judicial notice of three cases pending before the California Supreme Court, which he
contends demonstrate he is entitled to relief under Propositions 36 and 47 and Penal Code
section 1385 in light of People v. Vargas (2014) 59 Cal.4th 635 (Vargas).
       We appointed counsel to represent Mendez on appeal. After an examination of the
record, counsel filed an opening brief in which no issues were raised. On October 26,
2015 we advised Mendez he had 30 days in which to personally submit any contentions
or issues he wished us to consider. After granting one extension of time, on January 12,
2016 we received a 38-page typewritten “supplemental brief and request for evidentiary
hearing.”
       At the threshold, we question whether the trial court’s February 27, 2015 order
denying a motion for reconsideration of issues raised in prior habeas corpus petitions and
a request for resentencing in light of a then-recent California Supreme Court decision
(Vargas) is appealable under Penal Code section 1237, subdivision (b), as “affecting the
substantial rights of the party.” (See generally Teal v. Superior Court (2014) 60 Cal.4th

2
       This document is not part of the record on appeal.

                                              3
595, 601; People v. Totari (2002) 28 Cal.4th 876, 886; People v. Gallardo (2000)
77 Cal.App.4th 971, 984-985.) But assuming Mendez’s appeal is properly before us, it is
entirely devoid of merit.
       To the extent Mendez is claiming he is entitled to be resentenced under
Proposition 47, he failed to petition for such relief in the trial court in accordance with
Penal Code section 1170.18. To the extent he is challenging the trial court’s denial of his
Proposition 36 petition, the court properly determined in rejecting a prior resentencing
request that his prior convictions for attempted murder make him ineligible for relief;
and, as the court ruled on February 27, 2015, there are no new facts or law that would
mandate a different result now. To the extent Mendez is asserting he was improperly
sentenced as a third strike offender under Vargas, supra, 59 Cal.4th 635, the decision
does not apply to him because he was convicted of three felonies for the attempted
murder of three victims, not multiple felonies “based on the same act, committed at the
same time, against the same victim.” (Id. at p. 638.) The additional issues raised in his
supplemental brief, to the extent they can be understood, are beyond the scope of this
appeal from the trial court’s February 27, 2015 order or have no merit based on the
record before us. Mendez argues his 1988 plea agreement was breached, the three strikes
law is unconstitutional, he was not properly informed of the consequences of his 1988
plea, and his trial counsel rendered ineffective assistance.3
       We have examined the record and are satisfied Mendez’s attorney has fully
complied with the responsibilities of counsel and no arguable issue exists. (Smith v.
Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly
(2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.)




3
       Included in Mendez’s supplemental brief is a petition for writ of error coram
nobis, which appears to have been intended for filing in the trial court, but raises the same
issues as Mendez’s supplemental brief on appeal.

                                              4
                                    DISPOSITION
      The order is affirmed.




                                                       PERLUSS, P. J.


      We concur:




             SEGAL, J.




             BLUMENFELD, 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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