Filed 8/20/14 P. v. Mendoza CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064557

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245944)

SAUL BARCENAS MENDOZA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

         Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted Saul Barcenas Mendoza of possession of methamphetamine

(meth) for sale (Health & Saf. Code,1 § 11378, subd. (a)), possession of meth (§ 11377,

subd. (a)), and allowing a place for meth to be stored (§ 11366.5, subd. (a)). The jury

also found true two alleged enhancements: possession of more than one kilogram of

meth (§ 11370.4, subd. (a)) and that the meth was possessed for sale within 1,000 feet of

a school during the hours the school was open for class or class-related activities

(§ 11353.6, subd. (b)).

       The trial court imposed a determinate term of 16 years for the offenses and

enhancements and for two prior convictions under section 11370.2, subdivision (b). The

court selected the possession for sale count as the principal term and imposed the upper

term of three years for that count.

       Mendoza appeals challenging only the selection of the upper term for count 1.

Appellate counsel apparently recognizes the sentencing issue has been forfeited by failure

to object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.) Thus, this appeal

contends trial counsel was ineffective for failing to object to the selection of the upper

term for count 1.

       Based on the record presented here Mendoza has failed to demonstrate error by

defense counsel because there is no explanation in this record for trial counsel's

decisions. However, even if we assume error has been established, Mendoza has not




1      All further statutory references are to the Health and Safety Code unless otherwise
specified.
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shown prejudice within the meaning of Strickland v. Washington (1984) 466 U.S. 668,

687-695.

                                STATEMENT OF FACTS

       Since Mendoza does not challenge either the admissibility or the sufficiency of the

evidence to support the jury's decisions, we will only provide a brief summary of the

facts in order to give context to the discussion which follows.

       On January 29, 2013, police served a search warrant on Mendoza's residence,

where he lived with his wife and children. The property was adjacent to an elementary

school and across the street from a private preschool. The search produced four bags of

meth in the backyard, less than 200 feet from the elementary school. The meth was

found to be very pure and high quality. A total of 1,783 grams of meth were discovered

in the search.

                                       DISCUSSION

       This appeal focuses only on the trial court's decision to select the upper term of

three years instead of the middle term of two years as recommended by the probation

officer. Mendoza argues that decision was erroneous because the trial court based its

decision, at least in part, on facts which were the basis for the enhancements. Hence,

Mendoza contends the court's decision to select the upper term was unjustified.

       Mendoza does not dispute that the failure to object at trial forfeits the sentencing

issue on appeal. (People v. Scott, supra, 9 Cal.4th at p. 353; People v. de Soto (1997) 54

Cal.App.4th 1, 7-8.) Mendoza's argument is that the failure of trial counsel to object,

which has the effect of forfeiting the alleged sentencing error, rendered trial counsel's

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representation ineffective within the meaning of the Sixth Amendment. In the interest of

efficiency, we will assume, only for the sake of argument that defense counsel should

have objected to the trial court's sentencing choice. Even making that assumption,

Mendoza has not demonstrated any probability of a different result had an objection been

made.

        In stating his sentencing choices the trial judge said:

           "As far as count one, that's Health and Safety Code section 11378,
           possession for sale of a controlled substance; sixteen months, two or
           three years are the three options that are available. [¶] The court
           selects the upper term of three years. We're dealing with four
           pounds of an absolutely vile and dangerous substance, that is
           aggravated in terms of the sentencing options. And that in the
           court's mind outweighs any circumstances in mitigation, considering
           the purity, the fact that they were possessed in basically in the
           backyard where they were accessible to [appellant]'s children, and
           any other neighbors that might come into the yard. [¶] They were
           clearly close to a school and to a pre-school, and I think all of those
           things are aggravating circumstances would justify the upper term of
           three years. [¶] So three years is selected. [¶] The fact that the
           allegation under 11370.4(b)(l) and that the methamphetamine
           exceeded a kilogram in weight. A three year term is added to that
           initial sentence. [¶] . . . [¶] Health and Safety Code section 11353.6
           subdivision (b), the offense was within 1,000 feet of a public or
           private school, it was within 1,000 feet of two schools, one public,
           one private. The private one being a pre-school. That is sentencing
           range of three, four, or five years. Middle term is going to be
           selected on that. [¶] I understand the argument for increasing that to
           the upper term; and, while I agree that they probably are an upper
           term case, I'm selecting the middle of four."

                         A. The Strickland v. Washington Standard

        A criminal defendant has a Sixth Amendment right to effective assistance of

counsel in the trial court. (People v. Bonin (1989) 47 Cal.3d 808, 833.) When presenting

a claim of ineffective assistance of counsel, the defendant bears the burden of proof.

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(People v. Haskett (1990) 52 Cal.3d 210, 248.) Under the two-prong test of Strickland v.

Washington, supra, 466 U.S. 668, 687-695, the defendant must show that counsel's

performance was deficient and that any such deficiency caused the defendant prejudice.

Prejudice is defined as demonstrating a reasonable probability a more favorable result

would have occurred in the absence of counsel's error. (People v. Osband (1996)

13 Cal.4th 622, 728-729.)

       In order for Mendoza to establish prejudice, even assuming error in this case, he

must show that if there had been an objection, based on dual use of facts, the trial court

would have selected the middle term. Thus we will address the trial court's choice of the

upper term for count 1 to assess possible prejudice

                             B. Review of Sentencing Choices

       In order to assess possible prejudice from counsel's failure to object at trial, we

seek to determine if an objection to the upper term choice would probably have resulted

in a different outcome. In making that analysis we are aware Mendoza contends there is

no evidence to support an upper term, save for the facts used to support the

enhancements. We disagree.

       "Even if a trial court has stated both proper and improper reasons for a sentence

choice, 'a reviewing court will set aside the sentence only if it is reasonably probable that

the trial court would have chosen a lesser sentence had it known that some of its reasons

were improper.' " (People v. Jones (2009) 178 Cal.App.4th 853, 861; People v. Garcia

(1995) 32 Cal.App.4th 1756, 1775.)



                                              5
       Improper dual use of the same fact for both the upper term and for consecutive

sentences or enhancements does not require resentencing if it is not reasonably probable

that a more favorable sentence would have been imposed without the error. (People v.

Osband, supra, 13 Cal.4th at pp. 728-729.)

       First the parties disagree about "dual use." Mendoza contends the court's

reference to almost four pounds of meth was simply reference to the fact the weight

enhancement is based on one kilogram or more. The respondent argues the court could

consider the weight was almost twice the minimum. We need not resolve that dispute

because there were clearly proper factors in aggravation available to the court. Similarly

we need not resolve whether it was proper to consider the close proximity to both an

elementary school and a pre-school.

       Any reading of the sentencing transcript shows the experienced criminal law trial

judge believed this case was more serious than the normal case of possession of meth for

sale. The court emphasized the high quality and purity of the meth as aggravating. Both

parties here recognize the purity of crystal meth can be used as an aggravating factor

under section Penal Code section 1170.74. The section provides: "Upon conviction of a

felony violation of section 11377, 11378, 11379, or 11379.6 of the Health and Safety

Code, for an offense involving methamphetamine, the fact that the controlled substance is

crystalline form of methamphetamine shall be considered a circumstance in aggravation

of the crime in imposing a term under subdivision (b) of Section 1170."

       The court also emphasized the risks to Mendoza's own children and neighborhood

children by storing a large quantity of pure meth in a place which was easily accessible to

                                             6
children. Mendoza minimizes this factor contending it is just another part of the school

proximity enhancement. We disagree.

       Certainly the enhancement regarding school proximity is designed to protect

children from the pernicious effects of drug dealing. However, in assessing Mendoza's

culpability, the trial judge could certainly give weight to Mendoza's callous placing of his

children and neighborhood children at risk. Such risk has nothing to do with the facts

which support the school proximity enhancement.

       Even if one doubts the propriety of the trial court's reference to the quantity of the

substance and to the close proximity to schools, clearly there are good and valid reasons

for the trial court's unremarkable conclusion that Mendoza's possession for sale was more

serious than the ordinary crime under that statute. We are convinced there is no

likelihood that an objection by trial counsel would have made any difference in the

outcome of this sentencing.2 Accordingly, Mendoza has failed to demonstrate prejudice

as required by Strickland v. Washington, supra, 466 U.S. 668. Mendoza was not denied

effective assistance of counsel.




2      We note that the court's sentencing statement and the probation officer's report
recognize that an upper term for the proximity enhancement could have been imposed.
Both recognize the factors in aggravation outweigh the factors in mitigation. The court
however imposed the middle term. Hypothetically, in the unlikely event trial counsel
could have persuaded the court not to impose the upper term on count 1, the same
sentence could have been achieved by imposing the upper term on the enhancement.
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                                 DISPOSITION

    The judgment is affirmed.




                                               HUFFMAN, J.

WE CONCUR:


          BENKE, Acting P. J.


                     IRION, J.




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