P. v. Melendez

 

 

 

 

 

 

 

 

 

Filed 9/23/13  P. v. Melendez CA2/7

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SEVEN

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   WILFREDO MELENDEZ,               Defendant and Appellant.

B241864         (Los Angeles County       Super. Ct. No. BA375754)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Anne H. Egerton, Judge.  Affirmed.

            Murray A.
Rosenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and David
A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

 

____________________



INTRODUCTION

 

            Defendant
Wilfredo Melendez appeals from a judgment of conviction entered after a jury
found him guilty on two counts of assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).  The jury found not true the allegations of
great bodily injury (id.,
§ 12022.7, subd. (a)) and commission of the crimes for the benefit of a
criminal street gang (id.,
§ 186.22, subd. (b)(1)(C)).  The
trial court sentenced Melendez to state prison for a term of five years.  Melendez argues on appeal that the trial
court erred in refusing to instruct the jury on href="http://www.mcmillanlaw.com/">self-defense.  We conclude the evidence did not warrant such
an instruction and affirm the judgment.

 

FACTUAL AND> PROCEDURAL BACKGROUND

 

            A.        The
Crimes

            On the
evening of September 1, 2010
Luis Godina was driving a light brown Honda north on 12th Avenue toward Venice
Boulevard in Los Angeles,
heading to the hardware store.  He had
four male passengers, including Edwin Bernal, who was sitting directly behind
Godina.  Godina’s window was half-open;
the other windows were closed.  The rear
windows and windshield were tinted.

            Godina
stopped at a stop sign at Venice Boulevard.  As Godina waited for traffic to clear so he
could make a left turn, he saw Melendez standing near some bushes to his
right.  Godina did not know Melendez, did
not say anything to him, and did nothing to provoke him.  Melendez crossed 12th
Avenue behind the Honda.  He suddenly turned and yelled, “Mara.”href="#_ftn1" name="_ftnref1" title="">^[1]  He ran back to the Honda and struck the rear
window near where Bernal was sitting, shattering it.  Melendez then struck the rear driver’s side
window by Bernal, shattering it as well. 
Bernal shouted to Godina, “Let’s go. 
Let’s go.  Let’s go.  Take off.” 
Godina attempted to drive away, but the car stalled when he tried to
shift gears.  Melendez then reached in
through the half-open front driver’s side window and stabbed at Godina with a
knife, hitting him in the arm.

            Godina
finally managed to get the Honda started and drove away, with Melendez briefly
chasing after the car.  Godina drove to a
nearby police station where he reported the incident.  He was then taken by ambulance to the
hospital, where he received stitches to close a three-inch deep knife wound in
his arm.

 

            B.        Melendez’s
Arrest and Interview

            Based on
information obtained from Godina and a witness to the incident, Los Angeles
Police Officer Jose Castaneda and Detective Carlton Jones believed that
Melendez was the perpetrator.  Detective
Jones prepared a photographic lineup from which Godina identified
Melendez.  Melendez was then arrested.

            On September 9, 2010 Detective Jones
interviewed Melendez, who waived his Mirandahref="#_ftn2" name="_ftnref2" title="">^[2] rights. 
Melendez initially denied any involvement in the incident.  When Detective Jones said that a witness had
identified him, Melendez said, “I’ll be honest with you.”  Melendez said he was walking on Venice
Boulevard after a D.U.I. class.  He noticed a car following him and got
nervous.  The passengers had shaved heads
and he thought they might be gang members. 
He heard a noise and saw the car windows had been rolled down.  He thought the occupants of the car might
shoot at him.  He went up to the car and
said, “Where you from?”  Then he “just
started breaking his windows.”  He hit
the driver with his knife because he knew the driver would “want to get out of
there and get free.”  The car then made a
left turn on Venice Boulevard
and took off.

            Detective
Jones asked whether the occupants of the car responded when Melendez asked
where they were from.  Melendez said,
“Well, they didn’t say anything, and so I said ‘M.S.’”  Melendez admitted he was a member of the Tiny
Winos clique of the Mara Salvatrucha gang.

            Detective
Jones then asked why Melendez approached the car rather than running away if he
believed that the occupants might shoot at him. 
Melendez stated that he had been shot at before, so he knew the
occupants of the car “didn’t just cut me off and roll their windows down for no
reason.  They did it for a reason.  So, you know, I’m already like close to the
car.  The only thing I can do is go break
their windows, try to run out or something, you
know . . . .”  The
detective pointed out that what Melendez was saying did not make sense because
no one in the car had pointed a gun at Melendez or did anything to him, and
because the only way Melendez could have broken the rear driver’s side window
was if the window was up.  Melendez
explained that it was the rear passenger side window that was rolled down.

            Detective
Jones asked Melendez if he realized that what he did was wrong, and Melendez
responded, “It’s self-defense.”  When the
detective asked how it was self-defense, Melendez stated, “What do cops
do?  You see people like that, and they
make a hand movement . . . you empty your clips, you
know.”  Melendez explained, “I was scared.  What am I going to do?  I mean, come on.  It’s like to me life or death.  What am I going to do?  It’s like instinct stuff.”  When Detective Jones mentioned writing down
Melendez’s version of the incident, Melendez said, “I’m just asking don’t make
me seem like the bad guy, you know.  I’m
just defending myself.”

 

            C.        Gang
Evidence

            A number of
police officers confirmed that Melendez was a member of the Tiny Winos clique
of the Mara Salvatrucha gang.  Officers
had encountered Melendez near Venice Boulevard
and 12th Avenue, which is
one block south of Mara Salvatrucha territory.

            The expert
witnesses on gangs testified about the primary activities of the Mara
Salvatrucha gang and the gang’s territory and symbols.  The area of Venice
Boulevard and 12th Avenue
borders on the territory of a number of gangs. 
Members of rival gangs in this area assault each other to gain control
over the area.

 

            D.        Melendez’s
Testimony

            Melendez’s
testimony at trial was essentially consistent with his statement to Detective Jones.  Melendez testified that the car followed him
down the street, drove away, then pulled up in front of him when he was about
to cross 12th Avenue.  After the two
passenger side windows rolled down, “[a]ll of them, their attention went to me,
so they were all staring at me.  So when
I seen that I knew something was going to happen.  Then, I seen the front passenger guy, he was
going to grab something on his waistband and I seen him look around and when I
seen him look around I had a flashback from [a previous] incident where I had
gotten shot up inside my truck.  So I
felt I had to react in seconds, either do something about it or maybe something
was going to happen to me, get shot or something.”  Melendez acknowledged that no one in the car
said anything and he did not see a gun or other weapon.

            After his
flashback, Melendez “ran behind the car and [he] broke the left window, the
door window, and then [he] broke the rear windshield.”  He explained, “I felt I was going to get
shot, so I felt I had to react in a second and try to break the windows and try
to scare them off, to see if they would drive away.”  He used his fist to break the windows; the
knife was still in his pocket.  But
“[a]fter I broke the rear windshield, I backed way a little bit to see if they
would drive off, once I seen that they didn’t drive off, that it didn’t work,
trying to scare them off, I deployed my knife.”

            When asked
why he did not run away from the car, Melendez answered, “Because I’ve been
chased before.  I felt that if I would
run, they would have chased me.  I would
have . . . got tired and they would have gotten me and shot me.”  When asked if he yelled “M.S.” or “Mara,” he
said that when the car was starting to drive away, “I think I just said, ‘Where
you from?,’ and then I yelled out ‘M.S.,’ I think.”  He did this “to scare them off and make them
leave.”

            On
cross-examination, Melendez acknowledged that gang members shout the phrase,
“Where you from?” at people they believe are gang members, and that the phrase
is associated with gangbanging.  He
insisted, however, that when he directed that phrase at the occupants of the
car “[m]y intentions were not to bang on them, my intention was to scare them
off.”

 

            E.         Melendez’s
Request For a Jury Instruction on Self-Defense

            During a
discussion on jury instructions, the trial court asked for the People’s
position on a self-defense instruction
requested by Melendez, CALCRIM No. 3470.href="#_ftn3" name="_ftnref3" title="">>^>[3]  The prosecutor objected on the ground that
there was insufficient evidence to justify giving such an instruction:  “There was no weapon that the defendant saw,
there was no threat conveyed to the defendant. 
There was no weapon or expression of any type of harm.”  The prosecutor also noted that according to Melendez’s
version of the events, it was someone on the passenger side of the car who
displayed threatening conduct, yet Melendez attacked people on the other side
of the car.  The prosecutor argued that
“even assuming that that’s the conduct that he observed and that was the
conduct that posed the threat, which I’m not conceding, if he had a right to
self-defense, it was against the source of the harm.”

            The
prosecutor also commented on Melendez’s claim that he attacked the car to force
it to leave.  The prosecutor argued that
Melendez “doesn’t have any legal right to force anyone to do anything in terms
of being on a public street or not, so his reasoning does not give rise to
self-defense, especially when, after attacking [Bernal], he then stopped, paused,
went to another area of the car and went on the attack again, and in that
intervening period there was absolutely no force used against him, no threat or
the like.”

            The trial
court noted that under CALCRIM No. 3470, even “[i]f nobody [in the car] had initiated
force, I think the instruction is still appropriate if the defendant reasonably
believed that he was in imminent danger, but it has to have been imminent
danger from the person against whom he then used force.”  The court asked counsel for Melendez, “So
where is the evidence in the record of that?” 
Counsel for Melendez responded: 
“The defendant believed that these individuals were acting in concert,
and just as if [the prosecutor] was prosecuting a gang case where five
individuals were in a car and did a drive-by shooting, there would be an
allegation that these individuals were acting in concert or aiding and abetting
and they would all be prosecuted.”  The
court requested authority to support defense counsel’s position and continued
the discussion to a later break in the proceedings.

            When the
discussion resumed, counsel for Melendez cited People v. Minifie (1996) 13 Cal.4th 1055 and People v. Pena (1984) 151 Cal.App.3d 462 for the proposition that
whether the defendant’s conduct was reasonable or not was a jury question.  In response to the trial court’s specific
inquiry, counsel for Melendez argued “it is certainly reasonable for the
defendant to associate the people on the left side of the vehicle with the
people on the right side of the vehicle.” 
He argued that Melendez attacked the driver to get the vehicle to leave,
and that “if he had done something to one of the other occupants of the
vehicle, that wouldn’t necessarily motivate the driver to leave.”

            The trial
court reviewed the law and the facts of the case, noting that “a bare fear is
not enough. . . .  The
perceived threat must be imminent. 
Self-defense requires not only that the defendant honestly believe in
the necessity of using force, but also, that the belief be objectively reasonable.”  The court stated that there was no evidence
that either Bernal or Godina did anything to threaten Melendez.  “There was no weapon, no gang signs, no
words, no [gang] clothing,” and “there was no testimony that the car ever
swerved towards [Melendez]” or “tried to hit him in any way.”  The court concluded that “[t]o just come in
and say, I saw some guys in a car and four of the five had shaved heads and
they were looking at me and so I attacked the car, I just do not think that
warrants a self-defense instruction so I’m going to respectfully decline the
defense request for [CALCRIM No.] 3470 . . . .”

 

DISCUSSION

 

            A.        Applicable
Law

            The trial
court must instruct the jury on a defense relied on by the defendant only if
the defense is supported by substantial evidence.  (See People
v. Watson (2000) 22 Cal.4th 220, 222; People
v. Larsen (2012) 205 Cal.App.4th 810, 823; People v. Lee (2005) 131 Cal.App.4th 1413, 1426.)  “Substantial evidence in this context ‘“ is
‘evidence sufficient “to deserve consideration by the jury,” not “whenever >any evidence is presented, no matter how
weak.”’”  [Citation.]’  [Citation.]” 
(Larsen, supra, at p. 823, quoting from People
v. Wilson (2005) 36 Cal.4th 309, 331.) 
“‘In determining whether the evidence is name="SDU_824">sufficient
to warrant a jury instruction, the trial court does not determine the
credibility of the defense evidence, but only whether “there was evidence
which, if believed by the jury, was sufficient to raise a reasonable
doubt . . . .” 
[Citations.]’  [Citation.]”  (Larsen,
supra, at pp. 823-824, quoting from >People v. Salas (2006) 37 Cal.4th 967,
982-983.)  The court must resolve any
doubts regarding the sufficiency of the evidence in favor of the
defendant.  (Larsen, supra, at p.
824.)

            “‘To be exculpated on a theory of self-defense one must have
an honest and reasonable belief in the need to defend.  [Citations.] 
A bare fear is not enough; “the circumstances must be sufficient to
excite the fears of a reasonable person, and the [defendant] must have acted
under the influence of such fears alone.” 
[Citation.]’  [Citation.]”  (People
v. Valenzuela (2011) 199 Cal.App.4th 1214, 1227; see >People v. Minifie, supra, 13 Cal.4th at p. 1064 [“‘[t]o justify an act of self-defense
for [an assault charge under Penal Code section 245], the defendant must have
an honest and reasonable belief that bodily injury is about to be
inflicted on him’”].)  The reasonableness
of the defendant’s belief in the need for self-defense is evaluated
objectively, and “reasonableness is determined from the point of view of a
reasonable person in the defendant’s position. 
The jury must consider all the facts and circumstances it might
‘“expect[] to operate on [the] [defendant’s] mind . . . .”  [Citation.]’ 
[Citation.]”  (>People v. Minifie, supra, 13 Cal.4th at p. 1065; see People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083; >People v. Pena, supra, 151 Cal.App.3d at p. 476.)

            In
addition, “[t]he threat of bodily injury must be imminent [citation], and
‘. . . any right of self-defense is limited to the use of such
force as is reasonable under the circumstances. 
[Citation.]’  [Citations.]”  (People
v. Minifie, supra, 13 Cal.4th at
pp. 1064-1065.)  For self-defense,
“‘the fear must be of imminent harm. 
“Fear of future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice.  The defendant’s fear must be of imminent
danger to life or great bodily injury.”’ 
[Citations.]”  (>People v. Stitely (2005) 35 Cal.4th 514,
551; see People v. Saavedra (2007)
156 Cal.App.4th 561, 568 [“fear of harm even in the near future is
insufficient”].)

            B.        >There Was No Substantial Evidence To Support
an Instruction on

                        Self-Defense

            Even under
Melendez’s version of the facts, there was no substantial evidence to support a
self-defense instruction.  According to
Melendez, the Honda followed him on Venice Boulevard,
left, then pulled up in front of him on 12th Avenue.  The passenger side windows that were rolled
down revealed four passengers with shaved heads, one of whom Melendez believed
may have made motions suggesting he was reaching for a gun.  Melendez, however, made no effort to attack
the man whom he perceived was a threat. 
Instead, he ran behind the Honda to the other side of the car and
smashed the rear windshield.  None of the
occupants of the Honda had made any physical or verbal threats of any
kind.  Melendez then backed off and
waited to see if the car would drive away. 
When it did not, he proceeded to smash the rear driver’s side
window.  Again, none of the occupants of
the Honda had taken any action against Melendez.  Melendez then reached in through the driver’s
half-open window and stabbed at the driver, in order to make him drive away.

            There was
no substantial evidence to support an objectively reasonable belief that anyone
in the Honda was about to inflict any bodily injury on Melendez at the time
Melendez smashed the Honda’s windows and then stabbed Godina.  Nothing Melendez perceived in the behavior of
the occupants of the Honda at the moment of his attack justified his use of
force against them.  Even if Melendez had
initially perceived some kind of threat, it failed to materialize, yet he
attacked the Honda and its occupants anyway. 
There was no substantial evidence supporting an instruction on
self-defense, and the trial court did not err in refusing to give the
instruction.

 

DISPOSITION

 

            The
judgment is affirmed.

 

 

                                                                                    SEGAL,
J.href="#_ftn4" name="_ftnref4" title="">^*

 

 

We concur:

 

 

 

                        PERLUSS,
P. J.

 

 

 

                        WOODS,
J.