Must Judge Strike Gun Enhancement if CDCR Says So?

One night in January 2006, Riverside County Sheriffs responded to a house where a robbery had been reported.

There were five victims. They explained that Gabriel Manuel Mendoza, then age 23, kicked in a bedroom door at the house, where all five victims were. Mendoza pulled out a gun and held it against the chest of one of the victims there and demanded everyone empty their pockets and give him their money and wallets.

One victim thought that Mendoza’s gun was a fake and so he hesitated to pull out his wallet. Mendoza then shot a bullet through the television and aimed the gun at the victim who previously doubted the gun’s legitimacy. That victim then handed over his wallet to Mendoza.

Mendoza was later arrested and denied everything, telling police that all the victims were lying.

In 2007, a Riverside County Superior Court jury convicted Mendoza of two counts of first degree robbery (Penal Code § 211), along with other counts. With respect to the robbery offenses, the jury found true the allegation that Mendoza intentionally and personally discharged a firearm (Penal Code § 12022.53(c).

The judge sentenced Mendoza to 29 years and eight month in state prison, consisting of the “mid-term” of six years for the first robbery count, 20 years for the related firearm enhancement, one-third of the mid-term of six years on the second robbery count, a one-year prior prison term enhancement under Penal Code § 667.5(b) and eight months (one-third the mid-term) for possession of a controlled substance.

In 2021, the Secretary of the CDCR notified the Riverside County Superior Court that Mendoza appeared to have been improperly sentenced on the robbery counts, as the sentencing triad for robbery is three, four or six years. Therefore, Mendoza’s two-term term for the second robbery count (one-third the mid-term) should have been 16 months, not two years.

Mendoza then moved for “recall and resentencing,” arguing that Senate Bill 136 meant his one-year prison prior under Penal Code § 667.5(b) should be stricken as well.

He further asked the judge to strike the 20 year gun enhancement because under Senate Bill 81, according to Mendoza, mandated dismissal of the 12022.53(c) enhancement because imposition of it meant his sentence would be over 20 years. Senate Bill 81 states that the court, in sentencing, must give great weight to dismissing enhancements if the sentence thereby becomes over 20 years unless the court finds that doing so would endanger public safety.

The resentencing judge, Judge Molloy (who our office has appeared before many times) resentenced Mr. Mendoza to low-term of three years on the first robbery count, 20 years on the gun enhancement (declining to strike the enhancement), 16 months on the second robbery count (one-third the mid-term of four years) and eight months on the possession of controlled substance.

Judge Molloy pointed out that public safety would be endangered by striking the firearm enhancement because then Mendoza would be freed on a time-served basis because his sentence would be reduced to just five years and four months on a very serious robbery involving five victims and even the discharge of a gun.

Mendoza appealed the resentencing to the Fourth Appellate District, which denied his appeal. Mendoza argued that because Senate Bill 81 states the court “shall” dismiss an enhancement if the sentence becomes over 20 years, Judge Molloy abused his discretion and made a legal error.

The Fourth District pointed out, rather sarcastically, that Mendoza’s interpretation of Senate Bill 81 completely ignored the full wording of Senate Bill 81, which states that the court may decline to do so when public safety would be endangered. In other words, Mendoza’s view would require the judge to dismiss such an enhancement every time it was found true (as well as similar enhancements of 25 years for committing a crime to promote, enhance or assist a criminal street gang under Penal Code § 186.22) that public safety would be endangered. This would require a judge to endanger public safety. This certainly would not be in the interest of justice.

Accordingly, the revised sentence for Mr. Mendoza was affirmed.

For more information about a CDCR recommendation to recall a sentence and resentence, please click on the following articles: