Filed 10/30/23 P. v. Mendiola CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LEONCIO RAMON MENDIOLA,

Defendant and Appellant.

 H050488

 (Santa Clara County

 Super. Ct. No. CC933529)

In exchange for a stipulated sentence of 19 years in prison, defendant Leoncio 

Ramon Mendiola pleaded no contest to attempted murder and admitted a firearm use

allegation. In his previous appeal, a panel of this court remanded the matter to allow him 

to request resentencing based on an ameliorative change in the law that took effect after 

he was sentenced. On remand in 2022, the trial court denied his request. He argues in 

this second appeal that reversal is again required based on a different change in the law 

that took effect before the 2022 resentencing. For the reasons we explain here, we will 

affirm the judgment.

I. BACKGROUND

Our recitation of the facts is largely reproduced from our earlier opinion in 

case Nos. H047240 and H047983. (People v. Mendiola (Jan. 4, 2022, H047240, 

H047983) [nonpub. opn.].) (We have taken judicial notice of those cases at defendant’s 

request.) Defendant was charged by information with attempted murder (Pen. Code, 

§§ 187, 664) and shooting at an occupied vehicle (Pen. Code, § 246; unspecified statutory 
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references are to this code.) As to both felonies, the information alleged defendant 

personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and 

personally inflicted great bodily injury (§ 12022.7, subd. (b)). He was also charged with 

one misdemeanor count of exhibiting a firearm (§ 417, subd. (a)(2)). According to the 

probation report, the charges stemmed from defendant shooting the driver of a vehicle in 

the head, which caused partial paralysis.

As part of a negotiated disposition, the prosecution amended the information to 

remove the firearm discharge allegation and its 25-years-to-life sentencing enhancement

(§12022.53, subd. (d)) and instead alleged that defendant personally used a firearm 

(§ 12022.53, subd. (b)), which carries a 10-year enhancement. Defendant pleaded no 

contest to attempted murder and admitted using a firearm during that offense. He agreed 

to serve 19 years in prison, consisting of the upper term of nine years for attempted 

murder plus 10 years consecutive for the firearm use enhancement. He also agreed to 

waive 365 days of presentence custody credit. The trial court sentenced defendant in 

2014 consistent with the parties’ agreement, including dismissing the remaining charges 

and special allegations.

Representing himself, defendant petitioned for resentencing in 2019, contending 

that he was entitled to the ameliorative sentencing change in Senate Bill No. 620 (2017–

2018 Reg. Sess.), which gave trial courts discretion to strike formerly mandatory firearm 

use enhancements. After the trial court denied the petition because defendant’s judgment 

became final in 2014 without a timely notice of appeal, defendant appealed and requested 

relief from default. This court granted defendant’s request, considered the appeal, and 

remanded the matter to allow him to renew his petition for resentencing under Senate Bill 

No. 620.

In August 2022, defendant pursued the requested resentencing in the trial court, 

this time represented by counsel. His trial court filing in support of resentencing 

referenced Senate Bill No. 620 and the Legislature’s “changes to Penal Code 
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Section[s] 1385, 1016.7, 1016.8, 1170(b), 1170.1 and other parts of the Penal Code to 

make it clear that in plea bargaining and sentencing the district attorney and the court are 

to seek out rehabilitative measures for almost any defendant.” He further states that the 

filing was “written with the above changes in mind.” Counsel asked “the court and the 

district attorney” to “agree to a lesser punishment” for defendant and suggested three 

ways of achieving that outcome: (1) reinstating the waived 365 days of presentence 

custody credit, (2) resentencing defendant to the lower term of five years or the middle 

term of seven years for attempted murder, and (3) striking the firearm use enhancement 

or imposing a lesser enhancement in its place. In a written opposition to defendant’s 

request for resentencing, the prosecution stated it would not “renegotiate the sentence and 

agree to the above propositions.” Following a hearing in September 2022, the trial court 

declined to exercise its discretion to strike the firearm use enhancement and ordered that 

the original sentence would remain.

II. DISCUSSION

Defendant argues the judgment must be reversed and the matter remanded for 

resentencing so he can receive the benefit of Senate Bill No. 567 (2021–2022 Reg. Sess.)

and its amendments to section 1170. When defendant was originally sentenced in 2014, 

trial courts had broad discretion under former section 1170, subdivision (b) to select the 

appropriate term for offenses having a prescribed sentencing triad. Following Senate Bill 

No. 567, which took effect on January 1, 2022, trial courts are now generally required to 

select the middle or lower term (§ 1170, subd. (b)(1)) and may impose an upper term 

“only when there are circumstances in aggravation of the crime that justify the imposition 

of a term of imprisonment exceeding the middle term, and the facts underlying those 

circumstances have been stipulated to by the defendant, or have been found true beyond a 

reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, 

subd. (b)(2).) Further, where any of several enumerated circumstances “was a 

contributing factor in the commission of the offense,” the sentencing court must impose 
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the lower term unless it finds “that the aggravating circumstances outweigh the mitigating 

circumstances [and] imposition of the lower term would be contrary to the interests of 

justice.” (§1170, subd. (b)(6).) As relevant here, among the specified factors is that the 

defendant was under 26 years old at the time of the offense. (§1170, subd. (b)(6)(B); 

§1016.7, subd. (b).)

The parties correctly agree that the ameliorative sentencing change in Senate Bill 

No. 567 applies retroactively under the reasoning of In re Estrada (1965) 63 Cal.2d 740. 

But the Attorney General contends that defendant forfeited his right to raise the issue on 

appeal, because the bill was already in effect at the time defendant requested resentencing

and defendant did not object on that basis to reimposition of the upper term at the 

hearing. Defendant does not dispute that the forfeiture rule would apply if he had failed 

to request resentencing under amended section 1170, subdivision (b), but argues that 

defense counsel’s brief in support of resentencing did contain such a request.

We agree that forfeiture applies to the record here. (See People v. Anderson

(2023) 88 Cal.App.5th 233, 242, rev. granted Apr. 19, 2023, S278786; People v. Flowers

(2022) 81 Cal.App.5th 680, 683–684, rev. granted Oct. 12, 2022, S276237.) “Although 

the court is required to impose sentence in a lawful manner, counsel is charged with 

understanding, advocating, and clarifying permissible sentencing choices at the hearing.” 

(People v. Scott (1994) 9 Cal.4th 331, 353.) And, as this court indicated in People v. 

Todd (2023) 88 Cal.App.5th 373, 381–382, rev. granted Apr. 26, 2023, S279154 (Todd), 

a defendant who received a stipulated sentence to an upper term before the enactment of 

Senate Bill No. 567 (and whose case is not yet final) should be free to choose whether to 

waive or invoke the requirements of amended section 1170, subdivision (b). It logically 

follows that a defendant who does not invoke those provisions in the trial court when 

given the opportunity to do so forfeits the right to raise the issue on appeal.

Although defendant asserts he did invoke Senate Bill No. 567 in his request for 

resentencing, we do not read his trial court pleadings as containing such a reference. 
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Senate Bill No. 567 is not specifically mentioned among the legislative changes he cited.

The filing contains a section under the heading “The Importance of Penal Code 

Sections 1170(b) and 1170.1” which merely appears to quote section 1170 verbatim 

without any argument or analysis. The only other reference to section 1170 is its

inclusion in a non-exhaustive list of Penal Code sections authorizing trial courts to 

dismiss or strike enhancements in the interest of justice. The document’s concluding 

section asks the trial court and the district attorney to “agree to a lesser punishment” 

possibly including, among other proposed options, a sentence of five years or seven years 

for attempted murder “instead of the aggravated term” originally imposed. But that

request cannot fairly be read as suggesting that defendant’s original sentence did not meet

the requirements of amended section 1170, subdivision (b) or that defendant was 

invoking any of those requirements.

Our reading of defendant’s filing in the trial court is consistent with defense 

counsel’s argument at the hearing. As defendant concedes on appeal, counsel did not 

expressly object to reimposition of the upper term as being unlawful under section 1170, 

subdivision (b) as amended. In fact, counsel asked the court to “be creative” and 

suggested “certain possibilities” for resentencing—one being a sentence to the middle 

term of seven years for attempted murder. When the court emphasized that counsel’s call

for “creativity” could nullify the negotiated disposition and result in a worse outcome for 

defendant, counsel acknowledged the decision in People v. Stamps (2020) 9 Cal.5th 685 

(Stamps), and suggested “a plea bargain with the People” to include an alternative 

weapons enhancement or other sentence reduction as a potential solution. The prosecutor 

then spoke in opposition to defendant’s request for resentencing, and the court denied the 

request without further argument from defendant.

We acknowledge that defendant was 21 years old at the time of his 2008 offense, 

and that amendments to section 1170, subdivision (b) could be relevant to his sentence. 

But we conclude on this record that defendant forfeited his primary appellate contention 
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by not invoking those amendments in the trial court, and we therefore address his 

alternative argument that counsel’s failure to object on those grounds constituted

ineffective assistance.

To establish ineffectiveness of trial counsel in violation of the right to counsel 

under the Sixth Amendment to the United States Constitution, a defendant must show 

both deficient performance by counsel and prejudice from the deficiency. (People v. 

Ledesma (1987) 43 Cal.3d 171, 216–217.) Deficient performance is rarely shown if there 

was a tactical reason for trial counsel’s conduct. (See People v. Bolin (1998) 

18 Cal.4th 297, 317 [affirming conviction where alleged failure to object may have been 

“ ‘an informed tactical choice within the range of reasonable competence’ ”]; People v. 

Cruz (1980) 26 Cal.3d 233, 255–256 [“except in rare cases, an appellate court should not 

attempt to second-guess trial counsel as to tactics”].)

The Attorney General argues that counsel could not have been ineffective in 

failing to invoke Senate Bill No. 567 because defendant’s stipulation to an upper-term 

sentence divested the trial court of sentencing discretion and rendered the new law

irrelevant in this case. We disagree for the reasons explained in Todd, supra, 

88 Cal.App.5th at pp. 377–381. As the Legislature has declared in section 1016.8, 

subdivision (b)(1): “The California Supreme Court held in Doe v. Harris (2013) 

57 Cal.4th 64 that, as a general rule, plea agreements are deemed to incorporate the 

reserve power of the state to amend the law or enact additional laws for the public good 

and in pursuance of public policy. That the parties enter into a plea agreement does not 

have the effect of insulating them from changes in the law that the Legislature has 

intended to apply to them.” Senate Bill No. 567 would therefore apply notwithstanding 

defendant’s stipulation to an upper term, but defendant must still satisfy his burden of 

establishing counsel’s deficient performance.

Defendant makes only the conclusory assertion that a “reasonably competent 

attorney would have objected to the upper term because an objection could only inure to 
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appellant’s benefit.” Yet defendant also devotes a significant portion of his appellate 

brief to seeking a remedy that would prohibit a sentence of more than 19 years on

remand. Defendant’s argument implicitly acknowledges the risk that challenging the

reimposition of the upper term could result in a harsher sentence, as the California 

Supreme Court explained in Stamps, where the defendant pleaded guilty in exchange for 

a specified sentence and then invoked an ameliorative sentencing change on appeal. 

(Stamps, supra, 9 Cal.5th 685 at p. 692.) The Supreme Court held that although Stamps

was entitled to seek the benefit of the new law, the trial court could not unilaterally 

modify the plea agreement and so would have to rescind its approval of the agreement in 

order for Stamps to pursue the relief he sought. (Id., at pp. 707–708.) This court has 

since reached a similar conclusion concerning Senate Bill No. 567 in Todd, supra, 

88 Cal.App.5th at pp. 381–382.

In advocating for resentencing, defense counsel was expressly cognizant of the 

Stamps decision and its possible significance—he discussed it in his brief to the trial 

court and at the hearing, where he told the court he was “thinking about the Stamps case 

in the back of [his] head.” Although counsel did not specifically invoke the requirements 

of amended section 1170, subdivision (b), he was also aware of those requirements, as he 

noted at the hearing that an upper term would not be appropriate “under our current 

system” because there were “no aggravators agreed to.” We recognize the possibility that 

counsel, though aware of Senate Bill No. 567, mistakenly believed it would not apply 

retroactively; but the record reveals another, likelier possibility: counsel reasonably 

believed in light of Stamps, and because there were “no aggravators agreed to” or found 

true by a factfinder as required under Senate Bill No. 567, that invoking the new law

would risk nullification of the plea agreement and reinstatement of the original charges. 

Significantly, those charges included a firearm discharge allegation carrying a penalty of 

25 years to life. (§12022.53, subd. (d).)
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The arguments made in the trial court by defense counsel, both in writing and at 

the hearing, suggest that he was attempting to advocate for a lesser sentence while 

avoiding the possibility of a negative outcome for his client. Specifically, he attempted to 

gauge the willingness of the prosecution and the trial court to accept a reformulated plea 

agreement—an approach contemplated by the Supreme Court in Stamps, supra, 

9 Cal.5th at p. 707. After the prosecutor firmly expressed unwillingness to renegotiate 

and the trial court indicated its apparent agreement with defense counsel’s interpretation 

of Stamps, counsel did not at that point object to reimposition of the original sentence. 

This record thus supports the conclusion that counsel made an informed tactical choice

not to object on Senate Bill No. 567 grounds. To the extent defendant means to suggest

that he was not properly advised about Senate Bill No. 567, or that counsel’s actions were 

not consistent with his wishes at the time, such claims are more appropriately raised in a 

habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)

III. DISPOSITION

The judgment is affirmed.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Lie, J. 

H050488

People v. Mendiola