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Filed 12/13/22 P. v. Mendez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

HILCER MENDEZ,

Defendant and Appellant.

 A163837

 (Marin County

 Super. Ct. No. SC206512A)

In May 2021, Hilcer Mendez (appellant) pled guilty to a forcible lewd 

act upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)).

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The plea agreement did not include a stipulated sentence. In July, the trial 

court sentenced appellant to the upper term of ten years in state prison. 

While this appeal was pending, “[e]ffective January 1, 2022, our 

determinate sentencing law, section 1170, was amended in several 

fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); 

Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); 

1 All undesignated section references are to the Penal Code. We omit 

the underlying facts, which are not relevant to this appeal.
2

Stats. 2021, ch. 695, § 5.)” (People v. Flores (2022) 73 Cal.App.5th 1032, 

1038.) Two amendments are relevant here. First, the statute now provides 

the court may impose an upper term sentence “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,” or upon consideration of the defendant’s prior convictions based 

on a certified record of conviction. (§ 1170, subd. (b)(2)–(3).) Second, the 

statute now provides that, “unless the court finds that the aggravating 

circumstances outweigh the mitigating circumstances that imposition of the 

lower term would be contrary to the interests of justice, the court shall order 

imposition of the lower term if,” as relevant here, “a contributing factor in the 

commission of the offense” was the defendant’s experience of “childhood 

trauma.” (§ 1170, subd. (b)(6)(A).) Appellant argues he is entitled to 

resentencing under the amended statute.

As the People concede, “the amended version of section 1170, 

subdivision (b) that became effective on January 1, 2022, applies retroactively 

in this case as an ameliorative change in the law applicable to all nonfinal 

convictions on appeal.” (People v. Flores, supra, 73 Cal.App.5th at p. 1039.) 

The People also concede the aggravating circumstances relied on by the trial 

court do not satisfy section 1170, subdivision (b)(2) because they were not

stipulated to by appellant, found true beyond a reasonable doubt, or based on 

a certified record of conviction.

2 Finally, the People agree with appellant’s 

2 The aggravating factors found by the court were: there was a high 

degree of cruelty and callousness (Cal. Rules of Court, rule 4.421(a)(1)); the 

victim was particularly vulnerable (id., rule 4.421(a)(3)); appellant took 
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contention that he is entitled to present evidence that childhood trauma was 

a contributing factor in the commission of the offense under section 1170, 

subdivision (b)(6)(A). The People’s concessions are all proper. 

DISPOSITION

The judgment is reversed and remanded for resentencing under the 

amended version of section 1170, subdivision (b). 

SIMONS, Acting P.J.

We concur. 

BURNS, J.

WISEMAN, J.*

(A163837)

advantage of a position of trust (id., rule 4.421(a)(11)); and there were 

additional instances of misconduct based on charges dismissed with a waiver 

pursuant to People v. Harvey (1979) 25 Cal.3d 754 (id., rule 4.425(c)). 

* Retired Associate Justice of the Court of Appeal, Fifth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.