People v. Pendo CA6

Filed 12/2/15 P. v. Pendo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041714 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS141065A)

v.

JACOB PENDO

Defendant and Appellant.

On June 2, 2014, the Monterey County District Attorney filed an information in which he charged appellant with felony vandalism (Pen. Code, § 594, subd. (b)(1));1 “interference with” a wireless communication device, a misdemeanor (§ 591.5); and public intoxication, a misdemeanor (§ 647, subd. (f)). On October 27, 2014, the court dismissed the public intoxication count on the prosecutor’s motion. On October 29, 2014, a jury found appellant guilty of the remaining counts. On December 2, 2014, the trial court sentenced appellant to the low term of 16 months, to be served in the county jail pursuant to section 1170, subdivision (h).2 Appellant filed a timely notice of appeal on December 4, 2014.

1 All further statutory section references are to the Penal Code unless otherwise indicated. 2 At sentencing, the court indicated that it was inclined to place appellant on probation, but appellant’s counsel said he “would not accept a grant of probation.”

On appeal, appellant raises only one issue. Specifically, he argues that the trial court erred in failing to instruct the jury sua sponte on the necessity defense; or in the alternative, his trial counsel was ineffective in failing to make a request that the court instruct the jury on that defense. Facts Adduced at Trial Laura Pendo, appellant’s mother, testified that appellant lived in her home in Moss Landing. Appellant drank wine, although Mrs. Pendo had asked him not “to drink a bunch of wine.” She kept box wine in the house for cooking. Mrs. Pendo owned three cars: a GMC truck, a 2010 Camaro, and a 1968 Camaro. She testified that in the months before April 2014, appellant “was constantly yelling at [her] and telling [her] that [her] car was all weird and wrong and things were wrong with it, and [she] just kept telling him that it was fine, leave the car alone.” On April 15, 2014, Mrs. Pendo planned to go to the landfill with her husband. Repeatedly, appellant asked her to buy him a bottle of wine, but she refused. She said there was wine in the house. When Mrs. Pendo and appellant’s father returned from the landfill shortly before 12:00 noon, they saw that there was a lock on their gate that had not been there up to that time. Appellant was sitting on the other side of the gate. Appellant asked if they had bought him wine, and they said they had not. Mrs. Pendo thought that appellant had been drinking. When Mrs. Pendo asked appellant to take the lock off the gate, he said, “You don’t live here. Locked. My house.” Mrs. Pendo broke the lock with a hammer. Mrs. Pendo walked back to her truck to get her things as her husband walked in the gate. Appellant came to the open door of the truck and “kind of flew” at her and started “yelling.” She said she was sitting in the truck gathering her things when appellant grabbed the top of the truck and “came in with his feet at” her. Appellant was “yelling” at her about the wine and her car “and just things.” Mrs. Pendo told appellant