People v. Melendez CA2/2

Filed 2/18/14 P. v. Melendez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B245190

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA387517) v.

LUIS MIGUEL MELENDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Affirmed.

Debra Fischl, 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, Assistant Attorney General, Blythe J. Leszkay and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Luis Miguel Melendez appeals from the judgment entered upon his conviction by jury of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1),1 count 1), making criminal threats (§ 422, count 14), and resisting an executive officer (§ 69, count 17).2 In a bifurcated proceeding, the trial court found true that appellant suffered a prior serious felony conviction (§ 667, subd. (a)(1)), which qualified as a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced appellant to state prison for a total term of 14 years and four months, calculated as follows: on count 14, 11 years (upper term of three years, doubled pursuant to the Three Strikes law, plus five years for the prior serious felony conviction); on count 1, a consecutive term of two years; and, on count 17, a consecutive term of one year and four months. The trial court awarded appellant 880 days of custody credit. Appellant contends that the trial court violated its sua sponte duty to instruct on misdemeanor resisting a peace officer (§ 148) as a lesser included offense of resisting an executive officer. We find no error and affirm the judgment. FACTUAL SUMMARY Appellant does not challenge the sufficiency of the evidence supporting his convictions. Accordingly, viewing the record in the light most favorable to the judgment (People v. Bolin (1998) 18 Cal.4th 297, 331), we briefly summarize the facts while focusing on the circumstances of his arrest which are relevant to the issue on appeal.