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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B241864

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA375754)
         v.

WILFREDO MELENDEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of 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 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.”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.



1      “Mara” is short for the Mara Salvatrucha gang.


                                              2
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
Miranda2 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




2      Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].


                                            3
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



                                             4
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.”



                                              5
       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. 3470.3
The prosecutor objected on the ground that there was insufficient evidence to justify



3       CALCRIM No. 3470 provides in pertinent part: “Self-defense is a defense to
<insert list of pertinent crimes charged>. The defendant is not guilty of (that/those
crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or]
defense of another). The defendant acted in lawful (self-defense/ [or] defense of another)
if:
        “1. The defendant reasonably believed that (he/she/ [or] someone else/ [or]
<insert name of third party>) was in imminent danger of suffering bodily injury [or was
in imminent danger of being touched unlawfully];
        “2. The defendant reasonably believed that the immediate use of force was
necessary to defend against that danger; [¶] AND
        “3. The defendant used no more force than was reasonably necessary to defend
against that danger.
        “Belief in future harm is not sufficient, no matter how great or how likely the harm
is believed to be. The defendant must have believed there was (imminent danger of
bodily injury to (himself/herself/ [or] someone else)/[or] an imminent danger that
(he/she/[or] someone else) would be touched unlawfully). Defendant‟s belief must have
been reasonable and (he/she) must have acted because of that belief. The defendant is
only entitled to use that amount of force that a reasonable person would believe is
necessary in the same situation. If the defendant used more force than was reasonable,
the defendant did not act in lawful (self-defense/ [or] defense of another).
        “When deciding whether the defendant‟s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the defendant‟s beliefs were reasonable, the danger does not need to have actually
existed.”


                                             6
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

                                               7
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 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

                                              8
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”].)




                                               9
       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.




                                               10
                                    DISPOSITION


      The judgment is affirmed.



                                                SEGAL, J.*


We concur:



             PERLUSS, P. J.



             WOODS, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                           11
