P. v. Melo
Filed 7/9/13 P.
v. Melo CA4/2
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opinion has not been certified for publication or ordered published for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.
CALIFORNIA
THE PEOPLE,
Plaintiff
and Respondent,
v.
ESTEBAN MELO,
Defendant
and Appellant.
E055439
(Super.Ct.No. SWF10002012)
OPINION
APPEAL from the Superior Court of
County. Michael B. Donner,
Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Barry Carlton, and Joy Utomi, Deputy Attorneys General, for
Plaintiff and Respondent.
On July 31, 2010, defendant Estaban Melo was
involved in an altercation with the victim in front of a bar in Old Town
Temecula. Defendant, along with two
other men, punched the victim in his face while he was on the ground. Defendant was convicted of assault with force
likely to produce great bodily injury
within the meaning of Penal Code section 245, subdivision (a)(1).
defendant personally inflicted great bodily injury within the meaning of
sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8). He was sentenced to five years’ probation and
ordered to serve 180 days in county jail.
Defendant claims on appeal that he received ineffective assistance of
trial counsel due to counsel’s failure to properly oppose the People’s motion
in limine to exclude postings on a Facebook website by the victim following the
altercation.
I
FACTUAL BACKGROUND
A.
Brian Edwards
in Old Town Temecula in Riverside County on July 31, 2010. He was accompanied by his friends Michelle
Lindley, Andrea Salandra, and two other people, identified only as Daniel and
Nikia.
Brian, Nikia, Andrea, and Michelle
all walked from the parking lot toward the bar together. While they were walking, Brian made a comment
to Andrea, asking her why she plucked her eyebrows so thin. After Brian said this, defendant, who was
nearby, looked at him and asked what he had said. Brian responded with “attitude†that he was
not talking to him. There were two other
men with defendant. In describing all
three, Brian stated that one was a taller Hispanic male with a bald head. Another was a shorter Hispanic male, also
with a bald head, whom Brian identified as defendant. The third male had longer hair, and Brian
could not identify his race.
Defendant and the other two men surrounded
Brian. Brian said, “Okay. Am I supposed to be scared?†Brian tried to walk away but he was “struckâ€
on the left side of his head. He did not
know which of the three hit him. Brian
struck back but did not recall if he hit defendant or one of the other two
men. The ground was wet, and Brian
slipped and fell. Once he was on the
ground, all three of the men hit him in the head. Brian was throwing punches but did not know
if he hit anyone. Security guards from
Baily’s pulled the men off of Brian.
Brian was bleeding from his
were pulled off him that they did not fight fair and was yelling obscenities at
them. Defendant and the other two men
wrestled with the security guards.
Brian sustained a cracked nose and
had a cut over his eye. He went to the
hospital and got between six and eight stitches. A photograph of his stitches and what he
described as a bruised nose was shown to the jury.
Brian did not know defendant or the
other two men prior to that night. There
was no question in Brian’s mind that defendant hit him in the face. Defendant was not wearing a shirt. Brian thought defendant had a tattoo but did
not base his identification on the tattoo.
According to Michelle, Brian and the
person with the shaved head started “throwing
fists . . . .†Two
other men “came out of nowhere†and started physically assaulting Brian. All three men threw punches at Brian. Brian fell to the ground, and the men
continued to hit him. One of the men got
on top of Brian and was hitting him while he was on the ground. Security guards pulled the man off of Brian. Brian was bleeding from above his eyebrow and
out of his nose.
According to Andrea, while they were
walking to Baily’s, defendant, whom Andrea identified, said something to
Brian. Defendant was with two other
people. She described one of them as having
a shaved head and the other as having long hair. They were all wearing shirts.
Brian said something back to
defendant. The other man with the shaved
head hit Brian first. Brian hit
back. Defendant then “threw a fist†at
Brian. Brian slipped but was able to get
back up. The three men then pushed Brian
into the bushes. The three men were
using very aggressive force against Brian in throwing punches. They were striking him in the face. Defendant and the other man with the shaved
head were hitting Brian; the man with long hair was standing to the side. Andrea described them as beating up Brian
“pretty good.†The security guards from
the bar finally broke up the fight. At
this point, defendant had his shirt off.
All three men ran off up the street.
Brian had blood everywhere on his
face, but the security guards cleaned him up.
Andrea drove Brian to the hospital.
Andrea was a licensed vocational nurse and removed Brian’s
stitches. She recalled there being six
to eight stitches.
James Day worked as a security guard
at Baily’s in July 2010. On July 31, a
fight occurred outside the front door of the bar. He recalled that a couple of individuals were
assaulting another individual. At the
time of trial, he could not recall descriptions of any of the people
involved. He told officers at the scene
that two Hispanic males were striking the victim in the face.
Richard Albert Kay, Jr., also worked
at Baily’s. On July 31, Kay was working
at the front door checking identifications.
Kay heard loud yelling coming from a nearby planter. He looked and saw a Black male being struck
by two Hispanic males; one of the males was defendant. Day and Kay then went to break up the
fight. Both of the Hispanic males were
bald.
Kay described the two men as
“swinging for the fences†and trying to do “damage.†They were striking at his face. Kay observed a gash over the victim’s
eye. Kay wrestled one of the men to the
ground. Kay pushed the other one to the
side. Kay lost sight of defendant.
California Highway Patrol Officer
Craig Johnson was patrolling the Old Town Temecula area that night. As he was driving, some pedestrians flagged
him down. As he was being flagged down,
he saw defendant with no shirt, and defendant appeared distraught. Officer Johnson stopped and talked to
defendant. Defendant told Officer
Johnson that some “black guy†at a bar had been talking “shit†about him. At trial, Officer Johnson could not recall if
defendant had any injuries on his face.
Riverside County Sheriff’s Deputy
Adam Biondi responded to Baily’s based on a report of a fight at the location. When he arrived, he met with Officer
Johnson. Officer Johnson told Deputy
Biondi that he had seen two men run from Baily’s. One of the men was not wearing a shirt. Defendant was with Officer Johnson.
Deputy Biondi noticed a bump on
defendant’s forehead. Defendant told
Deputy Biondi that he got in a fight with a “black guy†in the bar. Defendant did not tell him the details of the
fight but said that “the black guy was talking shit on him.â€
Deputy Biondi spoke with Brian. Brian was holding a cloth near his left eye,
and there was blood dripping from the area.
Deputy Biondi did not have any of the potential witnesses try to
identify defendant at the scene. Everyone
was released.
B.
On July 31, Maria Nunez had been at
defendant’s house. Defendant’s brothers,
Raul and Isaias Melo, were also at the house.
A person named Francisco, who was known as Chevy, and Jose Diaz were
present. Franscisco was dark with long
black hair. Two other men with shaved
heads were at the house, but no one knew their names. They all were at the house to watch a fight
on television. Raul, defendant, and
Maria decided that they were going to go to Old Town Temecula to a restaurant
called the Bank.
As they were walking to the Bank,
they passed Baily’s and saw a commotion.
In the commotion, Maria and Raul saw the two men with shaved heads who
had been at the house and Francisco.
Maria saw them punching people.
Raul saw Isaias pinned to the ground by a security guard.
In the commotion, defendant was
pushed into the bushes by a security guard.
At that point, a “black guy†jumped on defendant and started punching
him. A security guard yelled that law
enforcement was being called and that everyone should leave.
Raul and Maria left and went back to
defendant’s house. Maria and Raul
assumed defendant had gone with someone else in their car. When they arrived back to the house,
defendant was not there. Maria and Raul
drove back to Baily’s. When they
arrived, defendant was speaking with law enforcement officers but was allowed
to leave. Defendant was bleeding from
his nose, and he was holding his shirt on it.
Jose drove with Francisco and Isaias
to Old Town Temecula to meet Raul, Maria and defendant at the Bank. They also had to walk by Baily’s to reach the
Bank. As they walked up to Baily’s, he
saw a “couple dudes†arguing outside of Baily’s. One of the men was Black. The other was a light-skinned, bald Hispanic
male who had been at the house with him earlier in the evening. The two started throwing punches. As they were fighting, Raul, Maria, and
defendant arrived.
A security guard pushed defendant
into the bushes. Defendant fell to the
ground. At that point, Jose, Francisco,
and Isaias left.
Defendant testified on his own
behalf. He was a second grade teacher
who taught special education students.
He confirmed the people who were at his house that night, including two
individuals brought to the home by Francisco whom he did not know. He drove to Old Town Temecula with Raul and
Maria. They were in the last car to
leave his house.
As they were walking to the Bank, he
observed that a security guard had Isaias in a choke hold, pinned to the
ground. Defendant approached and told
the security guard, “Let go of my brother.
I got him.†Defendant tried to
help his brother by grabbing his waist.
At that point, a security guard came and pushed him into the
bushes.
After he was in the bushes, Brian
was on top of him punching him in the face.
Defendant had no prior contact with Brian before Brian started punching
him. He was punched several times in the
face by Brian. A security guard pulled
Brian off of defendant. Everyone else
started running after this because the security guards stated that law
enforcement was on its way, but defendant stayed.
While defendant waited, two males
joined Brian and confronted defendant.
Brian had his shirt off and was already bleeding from his eye. The two males tried to attack defendant. Defendant walked across the street, and it
was at this point a police officer began talking to him. Defendant took off his shirt to put it
against his nose to stop the bleeding.
Defendant said nothing about a “black guy†giving him “shit.†Defendant admitted that all of his friends
left him at the scene.
Defendant did not have a tattoo on
his chest.
II
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Defendant asserts that he received
ineffective assistance of trial counsel in relation to the exclusion of
postings made on a Facebook website by Brian after the incident. The trial court excluded the posts based on
the People’s motion in limine. Defendant
claims his counsel should have argued to the trial court that Facebook postings
by the victim were admissible as third party culpability evidence, to support
that Brian was the aggressor, and to show that Brian’s injuries did not amount
to great bodily injury. He additionally
argues they were admissible to impeach Brian’s testimony. He insists that his counsel’s representation
was ineffective and in violation of his federal and state constitutional rights
to effective representation.
A.
Defense counsel had provided the
People with several Facebook posts that Brian made between August 2 and
September 8, 2010. The postings included
a statement in response to another post as to what had happened to him that
stated, “some fuckin mexicans that couldnt fight by themselves lol I got 2 of
them anyway i lumped up on[e] of there [sic]
heads pretty good lol but yea I slipped and they got me lol.†As to the injury he received, Brian stated,
“not trippin its a beauty mark or a pimp scar.â€
When asked if it hurt by another person posting on the website, he
stated, “hahaha its all good the shit dont even hurt that bad jus a needle and
thread.†Another person asked Brian
where he had been and Brian responded, “at baileys lol in front of it they
thought I was talkin to them and they got offensive but wen [
reacted lol.†Brian also posted, “yes
sir and it wasnt even a big deal those niggas fought like bitches and I
happened not be runnin my mouth lol.â€
Prior to trial, the People brought a
motion in limine that sought to exclude, among other things, evidence of third
party culpability and the Facebook posts for any purpose other than
impeachment. The People filed an
additional motion regarding the admittance and exclusion of the Facebook
postings. They argued that the postings
should be excluded as hearsay, irrelevant, and more prejudicial than probative
under Evidence Code section 352. The
trial court understood that Brian would admit posting the statements so there
was not a foundation issue.
Defense counsel orally argued for
admission of the Facebook postings by Brian on the following grounds: “Well, with respect to the postings by my
victim, they’re not hearsay because I’m not offering them for the truth. What I’m offering is to show his attitude
towards the entire event. He’s engaged
in a great deal of bragdesio [sic] on
his face page. And he’s, essentially,
talking about what a tough guy he is, and that ‑‑ you
know ‑‑ it’s his attitude more than anything else. [¶]
And he’s not the one that says he got involved either. It’s somebody else mentioning to him ‑‑ saying
he got jumped. He doesn’t even affirm
that. He’s just engaged in a lot of
tough talk in this. So I think it does
go to his mental state at the time. And
his mental state at the time is certainly relevant. His mental state at the time of the incident
is relevant. So I’m not offering it for
the truth of anything. It goes to his
mental state.â€
The People responded that the
postings occurred days after the event so his mental state after the event was
not relevant. Also, if defendant’s
counsel was not offering it for the truth of the statements, it was not
relevant. If they were offering it for
the truth, then it was hearsay and only could be used for impeachment.
The trial court found that Brian’s
mental state after the event was not relevant.
The trial court also noted the language used, especially “niggas†and
“fuckin mexicans†was highly inflammatory.
The trial court stated, “And there’s a visceral response to language
like that by members of those ethnic groups.â€
The trial court tentatively excluded the statements and would revisit
the issue if defense counsel sought to impeach Brian with the statements after
his testimony. However, the trial court
noted, “But right now, on a 352 analysis, it’s very, very prejudicial with that
language. And then I want to repeat, as
counsel pointed out, it does not reflect state of mind on the date of
incident.†The trial court put the onus
on the parties to revisit the issue later; otherwise, the tentative to exclude
the evidence would stand. There was no
further mention of the Facebook postings at trial.
B.
Assistance Counsel Claims
“‘The law governing defendant’s
claim [of ineffective assistance] is settled.
“A criminal defendant is guaranteed the right to the assistance of
counsel by both the state and federal Constitutions. [Citation.]
‘Construed in light of its purpose, the right entitles the defendant not
to some bare assistance but rather to effective
assistance.’†[Citations.] It is defendant’s burden to demonstrate the
inadequacy of trial counsel.
[Citation.] We have summarized
defendant’s burden as follows: “‘In
order to demonstrate ineffective assistance of counsel, a defendant must first
show counsel’s performance was “deficient†because his “representation fell
below an objective standard of reasonableness . . . under prevailing
Second, he must also show prejudice flowing from counsel’s performance
or lack thereof. [Citation.] Prejudice is shown when there is a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.â€â€™â€ [Citation.]
[¶] Reviewing courts defer to
counsel’s reasonable tactical decisions in examining a claim of ineffective
assistance of counsel [citation], and there is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.†[Citation.] Defendant’s burden is difficult to carry on
direct appeal, as we have observed:
“‘Reviewing courts will reverse convictions [on direct appeal] on the
ground of inadequate counsel only if the record on appeal affirmatively
discloses that counsel had no rational tactical purpose for [his or her] act or
omission.’†[Citation.]’ [Citation.]
If the record on appeal ‘“‘sheds no light on why counsel acted or failed
to act in the manner challenged[,] . . . unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory
explanation,’ the claim on appeal must be rejected,â€â€™ and the ‘claim of
ineffective assistance in such a case is more appropriately decided in a habeas
corpus proceeding.’ [Citation.]†(People
v. Vines (2011) 51 Cal.4th 830, 875-876, superseded by statute on other
grounds as stated in People v. Robertson
(2012) 208 Cal.App.4th 965.)
C.
Here, defendant claims that his
counsel was deficient for failing to seek to admit the Facebook postings as
third party culpability evidence, to prove Brian was the aggressor, to combat
the evidence that Brian received great bodily injury, and to impeach Brian’s
trial testimony. We disagree.
Defendant’s argument is based on his
interpretation of the postings that they established third party culpability
and that Brian was the aggressor.
However, it is also reasonable to conclude otherwise. Even assuming the postings were admissible
despite being hearsay, the statements did not establish that a party other than
defendant was responsible for punching him, i.e., that a third party was
culpable. Brian identified his
assailants in the postings as “[M]exicans,†and all of the witnesses stated
that the men who attacked Brian were Hispanic.
Brian does not state that someone other than defendant was present and
only that person hit him. The postings
did not establish a third party who was responsible for the crime.
Further, the posting that “some
fuckin mexicans that couldnt fight by themselves lol I got 2 of them anyway i
lumped up on[e] there [sic] heads
pretty good lol but yea I slipped and they got me†did not establish Brian was
the aggressor. Brian and Michelle
testified at trial that he fought back against the men. The postings only established that Brian
fought back against two men who were attacking him.
Counsel’s failure to make a futile
motion or objections is not ineffective assistance. (People
v. Price (1991) 1 Cal.4th 324, 387.)
Counsel reasonably could have concluded that the statements in the
postings did not establish third party culpability or that Brian was the
aggressor.
Moreover, the postings did not show
that Brian’s injuries did not amount to great bodily injury. In order to prove great bodily
only to prove there was a substantial or significant injury. (§ 12022.7, subd. (f).) In People
v. Escobar (1992) 3 Cal.4th 740, the California Supreme Court noted that
the definition of “great bodily injury†within the meaning of section 12022.7
does not require “‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement,
impairment, or loss of bodily function.â€
(Escobar, at p. 750.) Injuries such as “multiple contusions and
swelling of [the] hands, arms and buttocks,†“multiple abrasions and
lacerations to the victim’s back and bruising of the eye and cheek,†and a
“swollen jaw, bruises to head and neck and sore ribs†all are sufficient. (Id.
at p. 752.)
Here, the testimony established that
Brian needed six to eight stitches. The
fact that Brian discounted the injury as just a “pimp scar†did not establish
that a substantial injury did not occur.
It was clear that Brian was trying to brag that he did not get injured
as much as the evidence showed at the scene and at the hospital. Trial counsel reasonably could conclude such
evidence would not contradict that Brian received great bodily injury and was
irrelevant.
Additionally, the postings were not
inconsistent statements that would allow admission of the statements as
impeachment evidence. Defendant does
not provide the statements that were inconsistent with Brian’s trial testimony
that could have been used for impeachment.
We do not consider the statements by Brian to be necessarily
inconsistent. Trial counsel cannot be
faulted for interpreting the statements as not being inconsistent. In fact, the statements corroborate Brian’s
testimony that he was ganged up on by defendant and his cohorts.
The Facebook postings were not
admissible pursuant to the theories espoused by defendant for the first time on
appeal or for impeachment. Nonetheless,
even if we consider that the trial court would have allowed the postings, the record
does not shed light on why counsel failed at trial to seek admission of the
postings, especially for impeachment.
However, that does not mean there was no valid tactical reason. Since the record on appeal sheds no light on
why counsel did not seek further admission of the Facebook postings, the
claim must be rejected. Such a claim is more appropriately decided in
a habeas corpus proceeding. (
876.)
D.
Even assuming that
failing to argue that the postings should have been admitted, and such postings
would have been admitted at trial, defendant must still show “prejudice flowing
from counsel’s performance or lack thereof.
Prejudice is shown when there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. [Citation.]â€
(People v. Williams (1997) 16
Cal.4th 153, 215.)
Here, the postings only went to
Brian’s credibility. However, several
other witnesses testified that Brian was attacked by defendant. Defendant’s witnesses ‑‑ who
were all his friends and relatives ‑‑ claimed that Brian
was on top of defendant hitting him.
However, this was inconsistent with not only Brian’s friends’ statements
but also the disinterested security guards’ statements. This also was inconsistent with the injuries
sustained by the parties. Defendant had
a small bump on his head while Brian had more severe injuries, one of which
required six to eight stitches.
Additionally, there was strong
evidence that Brian sustained great bodily injury. Brian and Andrea both testified that he was
bleeding from the gash in his eye that required six to eight stitches. A trier of fact could reasonably determine
that a punch to a person that required stitches qualified as great bodily
injury. The fact that Brian thought it
was just a “pimp scar†did not diminish that he received great bodily
injury. The evidence strongly
established that defendant committed assault on Brian causing great bodily
injury.
Based on the foregoing, defendant
did not receive ineffective assistance of trial counsel, and even if his
counsel was ineffective, he cannot show prejudice.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting
P. J.
KING
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise
indicated.
there were several witnesses for whom no last names have been given, and some
witnesses share the same last name, we will refer to all of the civilian
witnesses by their first names for ease of reference and not out of disrespect.
