People v. Mendoza CA5

INTRODUCTION

Following a domestic dispute with his partner, Maria R., defendant Jesus Lee Mendoza was charged with two felonies, making criminal threats with an attached sentence enhancement allegation for personal use of a firearm (Pen. Code, §§ 422, subd. (a), 12022.5, subd. (a); count 1),1 and resisting an executive officer by means of force or violence (§ 69, subd. (a); count 2). The case went to trial and the jury convicted defendant on count 1 of the lesser included offense of attempted criminal threats, convicted him on count 2, and found the sentence enhancement allegation true. The trial court sentenced defendant to the upper term of 18 months on count 1 plus an additional term of 10 years for the firearm enhancement, and a consecutive term of eight months on count 2, for a total determinate term of 12 years 2 months. On appeal, defendant claims the prosecution failed to make a good faith effort to obtain Maria’s presence at trial and, therefore, the trial court erred when it found she was unavailable and permitted use of her preliminary hearing testimony. Defendant also claims the trial court erred when it denied his request to instruct the jury on the lesser included…